SILICON VALLEY DISPOSITION, INC. SOFTWARE AS A SERVICE AGREEMENT

In consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.

• 1. Authority: Any person accepting this Agreement as an agent for another party warrants in his/her individual capacity that he/she is acting within the scope of his/her authority and that said other party shall be bound thereby.
• 2. Term: This initial term of this Agreement (“Initial Term”) shall commence on the Effective Date and shall continue for a period of twelve (12) months from the Effective Date unless terminated sooner as provided herein. Following the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”) unless either party provides the other party with written notice of its intent not to renew at least sixty (60) days before the expiration of the then-current term. The Initial Term and the Renewal Term(s) are collectively referred to as the “Term".
• 3. Services Subject to the terms of this Agreement, Company shall grant to Client a limited, nontransferable, royalty-free, and nonexclusive license to use its Strategic Asset Manager (“SAM”) software (“Software”) and Company shall provide all other services necessary for productive use of the Software during the Term (collectively, with the use of the Software, “Services”). If applicable, Company shall create an application programming interface (“API”) to connect the Software to Client’s website; provided, however, Client shall be responsible for its own website and for making any changes to its website to use the Software and/or the API. Client shall only use the Software for lawful purposes.
• 4. Support Maintenance. During the Term, Company shall provide technical support and maintenance to ensure the functionality of the Software at no further cost to Client. Depending on the nature of the issue, Company shall, in its sole discretion, within a commercially reasonable time, provide telephone, email, remote, or on-site support services for problem determination and resolution.
  Except for normal issues and routine maintenance to the Software, Company shall ensure that the uptime for the Software shall be ninety-five percent (95%). In the event the Software uptime is less than such agreed to uptime, Company shall give Client a discount on the following month’s Licensing Fees (defined below) in an amount determined by Company in its sole discretion. Notwithstanding anything to the contrary, an outage or interruption to the Software caused by any failure of a third-party server shall not be deemed downtime of the Software.
• 5. Fees and Payment Client shall not be required to pay Company licensing fees for the use of the Software. Notwithstanding anything to the contrary herein, Company may increase the Licensing Fees for any Renewal Term by providing written notice thereof to Client.
• 6. Termination
  • 6.1. Termination for Convenience his Agreement may be terminated for any reason or no reason by either party upon thirty (30) days' prior written notice to the other party. This Agreement shall continue in full force and effect from the time of written notice until the date of termination. If this Agreement is terminated by Client under this Section 6.1, then Client shall not be entitled to any refund of Licensing Fees paid to Company in connection with the Services provided hereunder and Client shall promptly pay all unpaid fees due to Company hereunder.
  • 6.2. Termination for Cause If either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s reasonable satisfaction, within fourteen (14) days after written notice of the breach, then the non-breaching party may terminate this Agreement for cause as of the date specified in such notice. If Client terminates this Agreement for cause, Company shall, within a commercially reasonable time, refund any Licensing Fees paid by Client to Company for the period beginning after the termination date through the end of the Term, if applicable; provided, however, Client’s termination of this Agreement shall not relieve Client of its obligations to pay for any Services performed prior to the termination date. If Company terminates this Agreement for cause, Client shall not be entitled to any refund of Licensing Fees paid hereunder and all amounts owed by Client to Company under this Agreement shall become immediately due and payable. Termination for breach shall not alter or affect the terminating party’s right to exercise any other remedy for breach.
  • 6.3. Other Termination Either party may terminate this Agreement by providing the other party five (5) day’s advance written notice if the other party: (a) becomes insolvent or admits inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
• 7. Warranties and Disclaimers
  • 7.1. Company represents and warrants to Client that the Services will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. Client shall promptly report any material deficiencies in the Software to Company in writing. Client’s exclusive remedy for the breach of this warranty will be the reperformance of the Service within a commercially reasonable time. Company makes no warranty of any kind, whether express or implied, with regard to any products, software, content, equipment, or hardware obtained from third parties. All software have glitches or unforeseen errors, and consequently, Company makes no warranties and disclaims any and all warranties that the Software will function without interruption.
  • 7.2. Company represents and warrants to Client that the Software and any other work performed by Company hereunder shall not infringe upon any third-party’s copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret of any third-party.
  • 7.3. The warranties set forth in this agreement are the only warranties granted by company and company disclaims all other warranties, expressed or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
  • 7.4. Company shall not be liable to client for any indirect, incidental, consequential, special, punitive or exemplary damages arising as a result of or related to performance of the services or the use of or inability to use the software, regardless of the type of claim and even if company has been advised of the possibility of such damages, including, but not limited to, lost profits, loss of revenue or anticipated profits or lost business to the extent allowed by law. The liability of company, whether based on an action or claim in contract, equity, negligence, tort, or otherwise for all events, acts, or omissions under this agreement shall not exceed the licensing fees paid to company under this agreement within one (1) calendar year preceding the time client makes a claim to company for such damages.
• 8. Non-Disclosure of Confidential Information.
  • 8.1. For purposes of this Agreement, Confidential Information means any and all non-public information provided to by or on behalf of one party ("Disclosing Party") to the other party ("Receiving Party"), including, but not limited to, any customer lists, data, formula, documents, drawings, inventions, research and development, marketing, sales and promotional techniques, methods, processes, fee schedules or price lists, pricing policies, financial information, or any other documents that would reasonably be considered by either party to be of a confidential nature. Confidential Information includes all personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. Further, Confidential Information includes the Software, including its source code and know-how.
  • 8.2. The parties hereby agree to keep the Confidential Information confidential, and not use or disclose such information to any third party for any purpose except: (i) as expressly authorized by the Disclosing Party in writing, or (ii) as needed to fulfill a party's obligations under this Agreement. The Receiving Party shall exercise the same degree of care with respect to the Confidential Information it receives from the Disclosing Party, including any PII, as the Receiving Party normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care. If either party is required to disclose Confidential Information to any third party under part (ii) above, then the Receiving Party shall ensure that such third party is required, by written agreement, to not use the information and keep the information confidential under terms that are at least as restrictive as those stated in this Section.
  • 8.3. Any PII provided by Client to Company is and shall remain the sole and exclusive property of Client and all right, title, and interest in the same is reserved by Client. Company shall keep and maintain such PII in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss. Company shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available any Client PII for any marketing purposes.
  • 8.4. Confidential Information shall not include information that: (i) has become part of the public domain through no act or omission of the Receiving Party, (ii) was developed independently by the Receiving Party, as evidenced in a writing, or (iii) is or was lawfully and independently provided to the Receiving Party prior to disclosure by the Disclosing Party, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information, as evidenced in a writing. Further, notwithstanding anything to the contrary herein, Confidential Information shall not include any general data or information (non-PII) derived, aggregated, or generated from the PII or as the result of the use of the Services, and the same shall be owned by the party or parties in possession of such information. Each party may use, sell, rent, transfer, distribute, or otherwise disclose or make available such non-Confidential Information, for any purpose whatsoever, without any obligation or liability to the other party hereunder.
  • 8.5. If either party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, the Receiving Party shall immediately notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive the Receiving Party's compliance with the provisions of this Section. The Receiving Party will use commercially reasonable efforts, at the Disclosing Party's expense, to assist Disclosing Party in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Receiving Party may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Receiving Party has been advised by written opinion of counsel, reasonably acceptable to Receiving Party, that it is legally compelled to disclose.
  • 9. Indemnification Client shall indemnify, defend, and hold harmless Company and its owners, officers, managers, directors, employees, and agents from and against all claims, damages, fines, penalties, losses, liabilities, costs and expenses (including attorneys' fees) arising out of or resulting from, or alleged to have resulted from, any breach of this Agreement by Client or from any use of the Software by Client or Client’s customers, except if caused by Company’s gross negligence or intentional misconduct.
  • 10. Miscellaneous
    • 10.1. Independent Contractor Company shall be an independent contractor, and not an employee of Client, within the meaning of all federal, state and local laws and regulations governing employment insurance, workers' compensation, industrial accident, labor and taxes. Nothing in this Agreement shall be interpreted or construed to create a joint venture, partnership, franchise, agency or similar relationship between the parties.
    • 10.2. Entire Agreement Amendment. This Agreement constitutes the entire and exclusive agreement between the parties relating to the specific matters covered in this Agreement. This Agreement may be amended only by an instrument in writing signed by each party and specifically referring to this Section.
    • 10.3. Binding Assignment. When signed by all of the parties, this Agreement shall be binding upon the parties, their legal representatives, successors and assigns. Neither party may assign, convey, transfer, pledge, mortgage or otherwise encumber all or any portion of its interests in this Agreement without the prior written consent of the other party. Any assignment without such consent shall be deemed null and void. Company may, in its sole and absolute discretion, delegate a portion of the Services to subcontractors provided Company shall remain responsible for the performance of such delegated Services to the same extent as if such Services were performed by Company.
    • 10.4. Waiver No waiver by any party of any right or remedy under this Agreement shall be deemed to be a waiver of any other or subsequent right or remedy under this Agreement. No waiver of any term, covenant or condition of this Agreement shall be valid unless affirmed in writing. Except as expressly set forth herein, the rights and remedies provided by this Agreement are cumulative, and are in addition to any other rights the parties may have by law, statute, ordinance or otherwise. The use of any one right or remedy by any party does not preclude or waive the right to use any or all other remedies.
    • 10.5. Notices All notices, requests, demands, claims, and other communications hereunder shall be in writing, and shall be deemed duly given (i) when delivered personally to the recipient, (ii) one (1) business day after being sent to the recipient by reputable overnight courier service, charges prepaid, or (iii) four (4) business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient at the following address:
      If to Company:
      Silicon Valley Disposition, Inc.
      Attn: John Carroll
      3 E. 3rd Avenue, Suite 202
      San Mateo, CA 94401
      If to Client:
      at the address provided by Client to Company in connection herewith.
      Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
    • 10.6. Captions Interpretation. All captions, titles, headings and divisions hereof are for purposes of convenience and reference only, and shall not be construed to limit or affect the interpretation of this Agreement. For convenience, this Agreement has been drafted by one party. The Agreement is the product of negotiation between the parties, and shall not be construed against either party.
    • 10.7. Choice of Law; Jurisdiction The parties agree that this Agreement and all matters and issues collateral hereto shall be construed according to the laws of the State of California. The parties agree that the District Court or Superior Court for San Mateo County, California, as applicable, shall have exclusive jurisdiction, including in personam jurisdiction, and shall be the exclusive venue for any and all controversies and claims arising out of or relating to this Agreement or a breach thereof, except as otherwise unanimously agreed by the parties. Each party understands that each has a constitutional right of due process that guarantees that each party must have minimum contacts with the State of California prior to the exercise by such court of in personam jurisdiction over any party and said constitutional right is hereby expressly waived by each party.
    • 10.8. Attorneys’ Fees If Company engages legal counsel to enforce the provisions hereof, or to recover damages as the result of the alleged breach of any of the provisions hereof and Company is successful in any such enforcement or recovery, Company shall be entitled to recover all costs incurred in connection therewith, including, but not limited to, attorneys' fees.
    • 10.9. Severability If any provision of this Agreement becomes or is found to be illegal or unenforceable for any reason, such clause or provision must first be modified to the extent necessary to make this Agreement legal and enforceable and then if necessary, second, severed from the remainder of the Agreement to allow the remainder of the Agreement to remain in full force and effect.
    • 10.10. Injunctive Relief In the event of the actual or threatened breach of any provision of this Agreement by a party, there may not be adequate remedies at law and other party would suffer irreparable harm as a result of such breach. Therefore, in the event of a breach or a threatened breach, in addition to any other rights or remedies, a party shall have the right to obtain injunctive relief without any requirement to provide a bond or other security.
    • 10.11. Survival The provisions of Sections 7, 8, and 9 shall survive the expiration or termination of this Agreement. Any provisions that are expressly stated to survive the expiration or termination of this Agreement shall be enforced accordingly.
    • 10.12. Force Majeure Company shall not be held responsible under this Agreement if Company's performance under this Agreement is delayed or prevented by any unforeseen and extraordinary circumstances, including, but not limited to,: (i) revolution or other political disorders within continental United States; (ii) acts of enemies of the United States; (iii) strikes by Company's employees or subcontractors; (iv) flood or fires in or around Company’s property; (v) governmental declaration of a pandemic or an epidemic within continental United States; or (vi) acts of God. In such event, Company shall promptly notify Client of the delay and its likely duration.
  • I have read, understand and accept the terms and conditions set forth in the SAAS Agreement and the EULA. By clicking the “Complete Purchase” button, I agree that Silicon Valley Disposition, Inc. is authorized to charge me the monthly Licensing Fees due during the Term of this Agreement.

  EXHIBIT A : SILICON VALLEY DISPOSITION, INC. END-USER LICENSE AGREEMENT

  IMPORTANT: PLEASE READ THIS LICENSE AGREEMENT BEFORE ACCEPTING THE SOFTWARE.

  This End-User License Agreement (“EULA”) is a legal agreement between Silicon Valley Disposition, Inc., a California corporation (“Licensor”) and the person or entity accepting that certain Silicon Valley Disposition, Inc. Software As A Service Agreement (“SAAS Agreement”) dated of even date herewith (“You”) for the license of the SAM software and any other software accompanied with and under this EULA (collectively, the “Software”) from Licensor to You. By installing, copying, modifying, registering, or otherwise using the Software, you agree to be bound by the terms of this EULA.
  If you do not agree to accept all of the terms of this EULA, without any changes, additions or subtractions, immediately uninstall and remove the Software from your system, all of your computer(s), server(s), and/or your network.
  THE SOFTWARE:
  The Software is owned by, and is the property of, Licensor. The Software is protected by the copyright laws of the United States of America, as well as international treaties and laws protecting copyrights, as well as other intellectual property laws and treaties. While Licensor continues to own the Software, you will be granted, under this EULA, certain limited rights only to use the Software after your acceptance of this EULA.
  THE SOFTWARE:
  The Software is owned by, and is the property of, Licensor. The Software is protected by the copyright laws of the United States of America, as well as international treaties and laws protecting copyrights, as well as other intellectual property laws and treaties. While Licensor continues to own the Software, you will be granted, under this EULA, certain limited rights only to use the Software after your acceptance of this EULA.
  LICENSE GRANT:
  This EULA grants you the following rights:
  (A) : Subject to the terms and conditions of this EULA and the SAAS Agreement, Licensor hereby grants to You a non-exclusive, nontransferable right to use the Software.
  (B) :For the purpose of this EULA, to use the Software includes to download, install, and access the Software solely for your own internal business operations and You may only use the Software for commercial purposes.
  DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS:
  This EULA grants you the following rights:
  (A) : Subject to the terms and conditions of this EULA and the SAAS Agreement, Licensor hereby grants to You a non-exclusive, nontransferable right to use the Software.
  (B) :For the purpose of this EULA, to use the Software includes to download, install, and access the Software solely for your own internal business operations and You may only use the Software for commercial purposes.
  LICENSE GRANT:
  This EULA grants you the following rights:
  (A) : You may not copy any documentation which accompanies the Software.
  (B) : You may not sublicense, rent, or lease the Software, in part or in whole.
  (C) : You shall not (and shall not give permission to any End User) to attempt to reverse-engineer, decompile, disassemble, reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever, or create derivative works based on the Software or any part thereof.
  (D) : The Software is a single product. It may not be separated into its individual parts for use on any other server or computer.
  (E) : You may not use a previous version or copy of the Software after you have received a replacement or an upgraded version as a replacement of the Software. All copies of any prior version must be destroyed. Should You require the use of a previous version, such permission may be granted at the sole discretion of the Licensor upon receipt of Your written request to do so submitted to Licensor at the contact information listed below.
  (F) : You agree and grant Licensor the right to electronically audit, at any time, your server/computer license use as installed in order to verify your compliance with this EULA.
  (G) : All rights not expressly granted are reserved by Licensor. This EULA does not grant You any rights in connection with any copyrights, trademarks or service marks of Licensor.
  (H) : The Software may include copy protection or sunset technology to prevent the unauthorized copying or use of the Software. You agree that You will not circumvent any copy protection technology in the Software.
  (I) : Any supplemental software code, updates, modifications, or upgrades provided to You, whether as part of any support services or otherwise, are considered part of the Software and subject to the terms and conditions of this EULA. Subject to the terms of the SAAS Agreement, You acknowledge and agree that Licensor may use for its business purposes, including product support and development, any information You provide to Licensor whether the provision occurs during any support services, warranty claim or otherwise.
  (J) : Your failure to comply with any terms or conditions of this EULA shall constitute a material breach under the terms of the SAAS Agreement.
  (K) : You agree that You will not, during or after the termination of this EULA, contest or challenge Licensor’s ownership of, or any interest in, the Software.
  (L) : You shall ensure that Licensor’s copyright and proprietary rights notices are not disabled and remain conspicuously displayed as provided in the Software.
  INTELLECTUAL PROPERTY RIGHTS:
  The Software, including but not limited to any and all source code, object code, software product, images, audio files, photographs, animations, macros, applets, video, music, text, the accompanying printed materials, related instructional material (whether in the Software, provided with the Software, or available concerning the Software), and documentation, is copyrighted with all rights reserved. You agree that Licensor, or third parties where appropriate, own(s) all rights to and in the Software, including without limitation all copyrights, proprietary rights, trademarks, service marks, patents, patent rights and trade secrets, as well as any and all such things for any modifications, derivatives, or improvements of the Software, or any part thereof, which You, Licensor, or others may make (in whole or in part), whether authorized or not.
  UPON TERMINATION OF THIS EULA :
  The Software, including but not limited to any and all source code, object code, Upon the termination of this EULA: (a) Your license right to the Software shall immediately cease, and (b) You shall: (i) return to Licensor all copies of and media bearing the Software within ten (10) business days; (ii) delete and erase any copy of the Software copied onto any computer/server pursuant to this EULA; (iii) erase all backup and archival copies of the Software; and (iv) certify in writing to Licensor within ten (10) business days of the termination of this EULA that all copies of the Software have been returned to Licensor or have been erased/destroyed. You further authorize Licensor, in the event of termination of this EULA, to remotely and/or electronically disable, delete and/or remove the Software from your computer(s), server(s), and system(s) after a reasonable amount of time has been given to MSP to recover sensors. Termination of this EULA shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve you from your obligation to pay fees accrued prior to the termination.
  OTHER TERMS:
  This EULA is incorporated into the SAAS Agreement, and in the event of any conflict between the terms of the SAAS Agreement and this EULA, the terms of this EULA shall prevail and govern.
  You acknowledge and agree that the Software may be subject to restrictions and controls imposed by domestic and international export laws and regulations. You warrant that You will not export or re-export any Software into any country in violation of such controls or any other laws, rules or regulations of any country, province or jurisdiction. You expressly agree to indemnify, defend and hold Licensor and affiliates harmless from any damages, fines, penalties or similar expenses resulting from a breach of this obligation.