Empowering Systems Master Agreement (Page 2)

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8. WARRANTIES AND DISCLAIMERS

8.1 Our Warranties. We warrant that: (i) the Products shall perform materially in accordance with the Product‘s User Guide; (ii) the Services shall perform materially in accordance with the Services Guide; and (iii) the functionality of the Products and/or Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.

8.2 Mutual Warranties. Each party represents and warrants that, (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.

8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.


9. MUTUAL INDEMNIFICATION

9.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Products and/or Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by You in connection with any such Claim, provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.

9.2 Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Products and/or Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.

9.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.


10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR ORDERED PRODUCTS AND/OR SERVICES).

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.


11. TERM AND TERMINATION

11.1 Term of Licenses. This Agreement commences on the date You accept it and continues until terminated in accordance with this Agreement.
This License is effective until terminated. This License will terminate immediately without notice from Licensor if the User fails to comply with any of its provisions. Upon termination, the User must destroy the Software and all copies thereof, and the User may terminate this License at any time by doing so. Licensor reserves the right to destroy the Software if the User fails to comply with this agreement.

11.2 Term of Subscription Services. Except as otherwise specified in the applicable order, the Term of Subscription Services is one month. Subscription Services ordered by You commence on the date You accept it and continue for the subscription term. Except as otherwise specified in the applicable Order, all subscription services shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of cancellation with at least 30 days prior written notice.

11.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4 Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.5 Return of Your Data. Within 30 days of notice of termination of ordered Subscription Services, you can request an export of your data which we will provide in xml format, with the understanding that export service charges may apply. As of the termination date, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

11.6 Surviving Provisions. Sections 5 (Fees and Payment for Ordered Products and/or Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12 (Governing Law, Dispute Resolution and Notices) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.


12. GOVERNING LAW, DISPUTE RESOLUTION AND NOTICES

12.1 Governing Law & Dispute Resolution. This Agreement shall be governed by and interpreted under the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws provisions. In the event of a dispute, the parties mutually agree to use friendly mediation to resolve it. If mediation is unsuccessful, the parties agree to use binding arbitration, such arbitration to be conducted in the Boston, Massachusetts area. The parties agree to share the expense of such proceedings. The foregoing obligation to mediate and arbitrate does not prohibit either party from seeking temporary or permanent injunctive or other equitable relief in a court of competent jurisdiction.

12.2 Manner of Giving Notice. Notices should be sent to the addresses identified in the Order(s). Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Products and/or Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.


13. GENERAL PROVISIONS

13.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Products and/or Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Products and/or Services in violation of any U.S. export embargo, prohibition or restriction.

13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.6 Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).

13.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
This Agreement is effective on January 1, 2011 and may be amended from time to time. You will be provided thirty (30) days notice of any amendments. If You do not opt out during that 30-day period, You are deemed to have accepted the modified terms. If You elect to “opt out” of the modified terms, Your contract will continue through the end of its then current term under the old terms after which time it will terminate.

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