SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service (“SaaS”) Agreement and all Subscription Plans and statements of work between the parties (collectively, the “Agreement”) is by and between Enveedo, Inc. (“Enveedo”), and [SUBSCRIBER] (“Subscriber”).  PLEASE READ THIS AGREEMENT CAREFULLY.  THIS AGREEMENT GOVERNS YOUR RECEIPT OF ENVEEDO SERVICES. BY CLICKING THE “I ACCEPT BUTTON”, OR ACCESSING OR USING ANY PORTION OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BIND SUBSCRIBER BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ENVEEDO, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF SUBSCRIBER. IF YOU DO NOT AGREE TO BIND SUBSCRIBER BY THIS AGREEMENT, YOU MAY NOT ACCESS THE SERVICES.  The “Effective Date” of this Agreement shall be the date of your acceptance of the terms of this Agreement by clicking on the “I Accept” button.  In consideration of the mutual promises contained herein, the parties hereby agree to the following: 

1. BACKGROUND.  Enveedo provides a SaaS platform that helps companies create, manage and optimize their constantly evolving cybersecurity programs, to identify and assess threats, manage risk, and carry out and communicate improvements to their cybersecurity postures. This SaaS platform includes a curated marketplace of third-party products, solutions, and services organized around, but not limited to, the following categories:  outsourced experts & professional services; security operations services; identity & access management; risk management services; governance, audit & compliance services; legal & regulatory services; cybersecurity insurance providers; and cybersecurity education & awareness.  Subscriber wishes to utilize this SaaS platform with related services (the Services, as defined below), and Enveedo desires to make the Services available to Subscriber, subject to the following terms and conditions.
   
2. DEFINITIONS.  Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
   1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the Services.
   2. “Authorized User” means any individual who is an employee of Subscriber or Subscriber’s direct subsidiaries, or such other person or entity as may be authorized by an Subscription Plan, to access the one or more Services pursuant to Subscriber’s rights under this Agreement.
   3. “Documentation” means the technical materials provided by Enveedo to Subscriber in hard copy or electronic form describing the use and operation of the Software.
   4. “Error” means a reproducible failure of the Software to substantially conform to the Documentation.
   5. “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Software.
   6. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
   7. “Subscription Plan” means those selections chosen by Subscriber on Enveedo’s SaaS platform identifying a Service(s) to be made available by Enveedo pursuant to this Agreement.
   8. “Services” means access to Enveedo’s SaaS platform (as described in Section 1) and related services ordered by Subscriber through a Subscription Plan.
   9. “Subscriber Content” means any content developed by or on behalf of Subscriber and used with the Software.
   10. “Software” means the software programs described in the Subscription Plan and any associated user interfaces and related technology that Enveedo makes available pursuant to this Agreement.
   11. “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Enveedo as required for use of the Services.  The current requirements are a computer with a Safari, Chrome, Microsoft, or Firefox browser.
       
3. PROVISION OF SERVICES.
   1. Access.  Subject to Subscriber’s payment of the fees set forth in the Subscription Plan and any statements of work, Enveedo will provide the Services via an online user interface. On or as soon as reasonably practicable after the Effective Date Enveedo shall provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the Services in accordance with the Access Protocols.
   2. Responsibility for Software and Content Hosting.  Enveedo shall, at its own expense, provide for the hosting of the Software which is accessible as part of the Services, provided that nothing herein shall be construed to require Enveedo to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Subscriber or any Authorized User to provide access from the Internet to the Services.
   3. Recommendations.  The Services may provide Subscriber with recommendations regarding Subscriber’s security solution, which may include use of third-party products and/or services.  In such case, Subscriber authorizes Enveedo to share with such recommended third-party vendor Subscriber’s contact information for the purpose of connecting regarding the recommended solution.
   4. Training.  At Subscriber’s request and at no charge to Subscriber, Enveedo will provide an initial 30-minute training session to instruct Authorized Users regarding the basic access and use of the Software.
   5. Professional Services. Subscriber may engage Enveedo to perform certain professional services through one or more statement of works. Any statement of work for professional services shall describe such items as the applicable professional services, schedule for performance, staffing plan and requirements, milestones, acceptance criteria, fees, costs and expenses.  A party may request a modification to the professional services by written request to the other party specifying the desired modification(s). After receiving a request from Subscriber, Enveedo will submit an estimate of the impact for such modification and all required information relating thereto. Modifications will be performed under the terms of this Agreement and the applicable statement of work once mutually agreed.
   6. Collaboration and Chat.  The Services may include functionality for users to exchange ideas, and thus may contain user content provided by other registered users.  Enveedo is not responsible for and does not control user content.  Enveedo has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, user content.  subscriber’s use of all user content and interactions with other users is at Subscriber’s own risk.  Subscriber is solely responsible for its Authorized Users’ interactions with other registered users; provided, however, that Enveedo reserves the right, but has no obligation, to intercede in such disputes.  Subscriber agrees that Enveedo will not be responsible for any liability incurred as the result of such interactions.
   7. Support.  Enveedo shall provide chat and email support for use by Authorized Users Monday through Friday, [insert support hours], US holidays excluded, for problem resolution assistance.  Enveedo will use commercially reasonable efforts to correct all Errors in the Software reported by Subscriber in writing to Enveedo.  Enveedo will utilize remote diagnostic procedures whenever possible for Error diagnosis and Error Correction. Enveedo may not issue Error Corrections for all Errors. During the Term, Enveedo may, in its sole discretion, provide Subscriber with updates, upgrades, enhancements, and any other improvements that Enveedo then generally offers to other subscribers to the Service.
      
4. INTELLECTUAL PROPERTY.
   1. License Grant.  Subject to the terms and conditions of this Agreement, Enveedo grants to Subscriber a non-exclusive, non-transferable license during the term, solely for Subscriber’s internal business purposes and in accordance with the limitations set forth herein and in the Subscription Plan(s), (a) to access, use, perform, and digitally display the Software as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Subscriber’s use of the Services.  
   2. Limitations.  The Services, Software, Documentation, and all other materials provided by Enveedo hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Enveedo and its suppliers.  Subscriber agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein.  Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Subscriber’s jurisdiction require Enveedo to give Subscriber the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Subscriber must first request such information from Enveedo and Enveedo may, in its discretion, either provide such information to Subscriber or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that Enveedo’s and its suppliers’ proprietary rights in the source code for the Software are protected.  Subscriber acknowledges and agrees that the Services, Software, and Documentation will not be used, and are not licensed for use, in connection with any of Subscriber’s time-critical or mission-critical functions.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Services, Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.
   3. Ownership.  The Services, Software, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Enveedo and its suppliers.  All rights in and to the Services, Software and Documentation not expressly granted to Subscriber in this Agreement are reserved by Enveedo and its suppliers.  Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Software, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
   4. Open Source Software.  Certain items of software may be provided to Subscriber with the Software and are subject to “open source” or “free software” licenses (“Open Source Software”).  Some of the Open Source Software is owned by third parties.  The Open Source Software is not subject to the terms and conditions of the section titled Indemnification or the subsection titled License Grant.  Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.  Nothing in this Agreement limits Subscriber’s rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Enveedo makes such Open Source Software, and Enveedo’s modifications to that Open Source Software, available by written request at the notice address specified below. 
      
5. FEES AND EXPENSES; PAYMENTS.
   1. Fees.  In consideration for the access rights granted to Subscriber and the services performed by Enveedo under this Agreement, Subscriber will pay to Enveedo the fees set forth in the Subscription Plans or statements of work.  In the event that Subscriber wishes to increase the number of Authorized Users beyond the maximum number of Authorized Users for which fees have been paid, Subscriber shall be required to pay additional fees associated with the increased number of Authorized Users, prorated for the remainder of the term.  Except as otherwise provided in the Subscription Plans or statements of work, all fees for Services are due and payable to Enveedo in advance.  Enveedo shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
   2. Taxes.  The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Enveedo’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Services, or the license of the Software to Subscriber.  Subscriber will make all payments of fees to Enveedo free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Enveedo will be Subscriber’s sole responsibility, and Subscriber will provide Enveedo with official receipts issued by the appropriate taxing authority, or such other evidence as the Enveedo may reasonably request, to establish that such taxes have been paid.  Subscriber shall indemnify and defend Enveedo in connection with any proceedings brought by any taxing authorities in connection with this Agreement. 
   3. Expenses.  Subscriber shall reimburse Enveedo for all costs, pre-approved by Subscriber, including Enveedo’s reasonable out-of-pocket (including travel and living) expenses incurred in performing its obligations hereunder.  All costs and expenses incurred by Subscriber in connection herewith are the sole responsibility of Subscriber. 
   4. Interest.  Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.  Subscriber will permit Enveedo or its representatives to review Subscriber’s relevant records and inspect Subscriber’s facilities to ensure compliance with this Agreement.  
   5. Audit.  Enveedo will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber’s normal operations.  If any such audit should disclose any underpayment of fees, Subscriber shall promptly pay Enveedo such underpaid amount, together with interest thereon at the rate specified in this section.  If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber shall also pay Enveedo for Enveedo’s expenses associated with such audit.
      
6. SUBSCRIBER CONTENT AND RESPONSIBILITIES.
   1. License; Ownership.  Subscriber grants Enveedo a non-exclusive, worldwide (except for countries not permitted pursuant to export controls), royalty-free and fully paid license (a) to use the Subscriber Content as necessary for purposes of providing the Services and (b) to use the Subscriber trademarks, service marks, and logos as required to provide the Services.  The Subscriber Content hosted by Enveedo as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Subscriber.  All rights in and to the Subscriber Content not expressly granted to Enveedo in this Agreement are reserved by Subscriber.
   2. Authorized Users Access to Services.  It shall be Subscriber’s responsibility to perform those specific services that are necessary to establish Subscriber’s or Authorized Users’ use of the Software, Documentation, and Services.  This includes, but is not limited to: (a) providing employee lists to setup Authorized User accounts and (b) designating Authorized Users to participate in training.  Subscriber may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement.   User IDs cannot be shared or used by more than one Authorized User at a time.  If a Subscriber wishes to add additional User IDs, Subscriber may order such additional User IDs at any time by executing a new Subscription Plan detailing the number of additional User IDs.  Upon written acceptance by Enveedo of the Subscription Plan, Enveedo shall make the Service(s) available to the additional Authorized Users. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Enveedo promptly of any such unauthorized use known to Subscriber.   
   3. Subscriber Warranty.  Subscriber represents and warrants that any Subscriber Content hosted by Enveedo as part of the Services shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Enveedo’s system or data; or (e) otherwise violate the rights of a third party.  Enveedo is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber’s sole cost and expense.  Subscriber agrees that any use of the Services contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the Services.  Enveedo reserves the rights to terminate or suspend Subscriber’s or any Authorized User’s access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
   4. Subscriber Responsibility for Data and Security.  Subscriber and its Authorized Uses shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all passwords and other Access Protocols required in order the access the Services.  Subscriber shall have the ability to export Subscriber Content out of the Services and is encouraged to make its own back-ups of the Subscriber Data.  Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content.
   5. Copyright Policy.  Enveedo reserves the right to terminate its agreement with any Subscriber who repeatedly infringes third party copyright rights upon prompt notification to Enveedo by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if Subscriber believes that a copyrighted work has been copied and posted via the Services in a way that constitutes copyright infringement, Subscriber shall provide Enveedo with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Services of the copyrighted work that Subscriber claims has been infringed; (c) a written statement by Subscriber that Subscriber has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) the name and contact information, such as telephone number or e-mail address, of Subscriber; and (e) a statement by  Subscriber that the above information in Subscriber’s notice is accurate and, under penalty of perjury, that Subscriber is the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for Enveedo’s Copyright Agent for notice of claims of copyright infringement is as follows:

Enveedo, Inc.
Attn: Copyright Agent
Enveedo, Inc. c/o Daniel Monetto
66 West Flagler St. Suite 900
Miami, FL 33130
[email protected]

7. WARRANTIES AND DISCLAIMERS.
   1. Limited Warranty.  Enveedo warrants to Subscriber that the Software will operate free from Errors during the term of the Agreement.  Provided that Subscriber notifies Enveedo in writing of any breach of the foregoing warranty during the term hereof, Enveedo shall, as Subscriber’s sole and exclusive remedy, provide the support set forth in Section 3.6.  This warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary from jurisdiction to jurisdiction.    
   2. Exclusions.  Notwithstanding anything to the contrary, Enveedo shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Subscriber’s or Authorized Users’ use of any version of the Software or the Services other than the then-current unmodified version provided to Subscriber; (b) any problems which are not Errors; (c) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Enveedo; (d) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Services, Software, or Documentation; (e) problems or Errors caused by Subscriber’s, Authorized Users’, or other third party’s products, services or equipment; or (f) modification, amendment, revision, or change to the Software or the Services by any party other than Enveedo or Enveedo-authorized representatives.  Any use of or reliance on data or data output contained in the Software or the Services is Subscriber’s or Authorized User’s sole responsibility. 
   3. Disclaimer.  THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS,” AND ENVEEDO MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY ENVEEDO.  ENVEEDO DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.  WHILE THE SERVICES ARE DESIGNED TO PROVIDE NEUTRAL MATCHES OF SECURITY SOLUTION RECOMMENDATIONS FOR SUBSCRIBER, ENVEEDO IS COMPENSATED BY ITS RECOMMENDED SOLUTIONS.
      
8. LIMITATION OF LIABILITY.
   1. Types of Damages.  TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, ENVEEDO OR ITS SUPPLIERS SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH ENVEEDO’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ENVEEDO HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.  
   2. Amount of Damages.  THE MAXIMUM LIABILITY OF ENVEEDO ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO ENVEEDO DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.    IN NO EVENT SHALL ENVEEDO’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.  NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ENVEEDO’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF ENVEEDO OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
   3. Basis of the Bargain.  The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.  
      
9. CONFIDENTIALITY.
   1. Confidential Information.  During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”).  The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure.  Regardless of whether so marked or identified, the Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Enveedo.
   2. Protection of Confidential Information.  The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.  The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Enveedo).  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.  
   3. Exceptions.  The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.  In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
      
10. INDEMNIFICATION.
    1. By Enveedo.  Enveedo will defend at its expense any suit brought against Subscriber, and will pay any settlement Enveedo makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software or the Services misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date.  If any portion of the Software or the Services becomes, or in Enveedo’s opinion is likely to become, the subject of a claim of infringement, Enveedo may, at Enveedo’s option: (a) procure for Subscriber the right to continue using the Software or the Services; (b) replace the Software or the Services with non-infringing software or services which do not materially impair the functionality of the Software or the Services; (c) modify the Software or the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Subscriber to Enveedo for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Software, Documentation, and Services.  Notwithstanding the foregoing, Enveedo shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Software or the Services in combination with other products, equipment, software or data not supplied by Enveedo; or (y) any modification of the Software or the Services by any person other than Enveedo or its authorized agents.  This subsection states the sole and exclusive remedy of Subscriber and the entire liability of Enveedo, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
    2. By Subscriber.  Subscriber will defend at its expense any suit brought against Enveedo, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Subscriber’s breach or alleged breach of the subsections titled Subscriber Warranty and Copyright Policy.  This subsection states the sole and exclusive remedy of Enveedo and the entire liability of Subscriber, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
    3. Procedure.  The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.  
       
11. TERM AND TERMINATION.
    1. Term.  This Agreement commences on the Effective Date and remains in effect until the end of the latest Subscription Plan unless earlier terminated as set forth below.  
    2. Termination.  Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.  Termination of the Agreement shall terminate all existing Subscription Plans hereunder.
    3. Effect of Termination.  Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, Enveedo shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession.  The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason. 
       
12. MISCELLANEOUS.
    1. Governing Law and Venue.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Enveedo’s principal place of business is located for any lawsuit filed there against Subscriber by Enveedo arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Subscriber is located may be different from Delaware law.  Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software, Documentation, or Services hereunder.
    2. Export.  Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Enveedo, or any products utilizing such data, in violation of the United States export laws or regulations.
    3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
    4. Waiver.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    5. Remedies.  Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative.  Subscriber acknowledges that the Services, Software, and Documentation contain valuable trade secrets and proprietary information of Enveedo, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Enveedo will constitute immediate, irreparable harm to Enveedo for which monetary damages would be an inadequate remedy.  In such case, Enveedo will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials.  If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
    6. No Assignment.  Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party.  The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. 
    7. Force Majeure.  Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
    8. Independent Contractors. Subscriber’s relationship to Enveedo is that of an independent contractor, and neither party is an agent or partner of the other.  Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Enveedo.
    9. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.  Notice will be effective upon receipt or refusal of delivery.  If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark.  If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
    10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
    11. Entire Agreement.  This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and the Enveedo.
    12. E-Sign.  For contractual purposes, Subscriber (a) consents to receive communications from Enveedo in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Enveedo provides to Subscriber electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.