INTERWORKS END USER LICENSE AGREEMENT

1. SOFTWARE AND PROPERTY RIGHTS

1.1 License. Interworks hereby grants to Licensee a world-wide, non-exclusive and non-transferable license, without any rights to sub-license, to download and/or to install the Software and to use the Software for the purposes and to the extent as set forth in this Document. Use shall mean and include any storing, loading, installing, executing or displaying the Software. Licensee shall not modify the Software or disable any licensing or control features of the Software. Licensee is not granted any other rights except those given in this limited license. Licensee acknowledges and agrees that Licensee’s use of the Software is subject to limitations described in this Document.

1.2 License Keys. Licensee agrees to purchase all required license keys (“License Keys”) from Interworks in order to activate or expand Licensee’s use of the Software. Licensee further agrees:

(i) not to tamper with the Software in order to avoid, ignore or detour the requirement of a License Key,

(ii) to install and use each License Key only for the purpose for which it was issued by Interworks, and

(iii) to treat the License Keys as Interworks’ Confidential Information. 

1.3 Ownership. The Software, together with all title, copyright, trademarks or service marks and intellectual property rights embodied in the Software, will be owned by Interworks and or any third party suppliers and is protected under international copyright laws and international treaties. Interworks hereby grants to Licensee only a license to non-exclusive use of the Software and no title or ownership in the Software is hereunder conferred to the Licensee. Licensee will be held liable for any damage resulting from any violation of provisions contained in this Agreement, including for any infringement of copyrights or proprietary rights.

1.4 Copies. Licensee may make one copy of the Software solely for the purpose of making a backup or archival copy, provided Licensee must retain all copyright notices in the original Software on all such copies made hereunder. Licensee is not authorized to copy the Software or to post the Software on any bulletin board, peer-to-peer, social network, or any other similar system, nor can the Licensee copy any of the user Documentation provided along with the Software, except for Licensee’s own authorized use.

1.5 Restrictions on Use. The software contains copyrighted material, trade secrets, and other proprietary material belonging to the Company or its licensors or its third party suppliers. Licensee is not permitted to do the following acts:

(i) modify, adapt, alter, translate, decompile, disable or otherwise reverse engineer the Software or reduce the Software to human-readable form by any means whatsoever; or

(ii) remove, obscure or modify any identification, titles, trademarks, proprietary marks, copyright or other notices included in the Software; or

(iii) Modify or create derivative works based on any part of the Software; or

(iv) use the Software for commercial purposes, including but not limited to sell, rent, lease, license, hypothecate, transfer, loan or distribute the Software in whole or in part, except in cases it obtains a relevant permission from the Company.

1.6 Third Party Facilities. If Licensee locates hardware on which the Software is installed at a facility owned or operated by anyone other than Licensee (like 3^rd part data centers), Licensee must ensure that such third party is bound by agreements containing terms that are no less restrictive or protective of Interworks’ and its licensors’ or suppliers’ rights than those set forth in this Agreement, including but not limited to the obligations set forth in terms 1.2 (License Keys), 3.5 (Audit) and term 8 (Confidentiality). 

1.7 Resellers and Customers.  Licensee will ensure that all of Licensee’s or Licensee’s affiliates’  internal users (“Users”) to whom Licensee provides services using the Software (“Licensee Services”), are bound by the End User License Agreement, or other agreements containing terms that are no less restrictive or protective of Interworks’ and its licensors’ rights than those set forth in this Agreement.  Licensee will use all efforts to enforce such agreements similar to those efforts Licensee uses to enforce its own terms and agreements for the protection of its own proprietary interests, but in no event less than reasonable efforts.

1.8 Open Source Software.  As a convenience to Licensee, Interworks may make available with the Product, certain third party software or modifications or other open source license terms (“Open Source Software”). Such Open Source Software may be specifically identified in the applicable Documentation and, notwithstanding any other term of this Agreement, is licensed pursuant to the applicable open source terms (“Open Source Terms”) and not the terms set forth in Section 1 of this Agreement.  If any Open Source Term conflicts with a term of this Agreement, the Open Source Term controls with respect to the applicable Open Source Software only.

Specifically, Interworks Cloud OSS software is based on Outcurve’s foundation WebSitePanel, Copyright © 2011, Outcurve foundation all rights reserved.

Neither the name of The Outcurve Foundation nor the names of its contributors may be used to endorse or promote products derived from this website panel software without specific prior written permission.

1.9 Third Party Software. The Software licensed hereunder may also include third party software products (“Third Party Software”), for which the Licensee must enter into, and be subject to, a separate license agreement with the publisher of such Third Party Software. Licensee understands that Licensee’s use of such Third Party Software will be governed by the terms of that end user license agreement and not by this Agreement and Licensee agree to abide by that third party license agreement. 

1.10 Content. The Licensee should not use the software to host services that provide any content, points of distribution, or ‘links’ to sites that:

(i) Infringe on any third party`s intellectual property or proprietary rights, or rights of publicity or privacy;

(ii) Violate any law, statute, ordinance or regulation;

(iii) Are defamatory, trade libelous, threatening, unlawfully harassing, abusive, pornographic or obscene;

(iv) Contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software/programs that may damage the operation of a third party`s computer or property;

(v) Contain Proxy, Pirated or Hacking / Phreaking Software (Warez). Moreover, any software or content that is copyrighted and not freely available for distribution without cost, ROMs, ROM Emulators and Mpeg Layer 3 files (MP3), movies, songs – all fall under this jurisdiction. This includes also Torent sites or links to Torent sites;

(vi) Provide services related to or directly linked to escort services;

(vii) Provide services that Display/distribute Adult content as well as any erotic or pornographic material, links to adult sites, or advertisements for adult sites.

2. EFECTIVENESS, TERM

This End User License Agreement shall become immediately effective when the Licensee signs a Master Services  Agreement with Interworks’ Distributor, IWCP, LLC (the “Master Services Agreement”). .

This End User License Agreement shall remain in effect until the services provided herein are terminated or cancelled as provided by the terms and conditions as contained herein or in the Master Services Agreement.

3. LIMITED WARRANTY

3.1 Limited Warranty; Exclusive Remedies.  Interworks warrants that the Software, as delivered by Interworks to Licensee, will perform in accordance with its accompanying technical data sheet for a period of 90 days after the first invoice is issued with the Software’s use.(“Warranty Period”). If Interworks is in breach of the warranty, Licensee will notify Interworks within the Warranty Period, with reasonable details of the nonconformance, and provide Interworks with a reasonable opportunity to correct or replace the defective Product in a period of time that will not to exceed 10 business days or another reasonable amount of time agreed to by the parties. Licensee agrees to comply with Interworks’ reasonable instructions concerning the alleged defect of the Software, which may include its return to Interworks. If Interworks is not able to remedy the breach within the time period specified in Licensee’s notice, then Licensee sole and exclusive remedy for such breach is to receive a refund of all amounts paid for the non-conforming Software and Products as well as terminate this Agreement for breach.

3.2 Third Party; Open Source.  INTERWORKS MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE or other product embedded in or included with the software and/or furnished to Licensee by Interworks, including but not limited to Open Source Software and any hardware.  Any such third-party software or hardware shall be warranted, if at all, only pursuant to Interwork’s licensor’s terms as provided by Interworks. OPEN SOURCE SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Further, Interworks will not have any liability except as provided for in the Service Level Agreement if any alleged defect in the Software is primarily due to causes not within Interworks’ reasonable control, including any defect caused by

(i) any negligent act or omission by anyone other than Interworks,
(ii) modification or misuse of the Software (including use in an operating environment not specified by this Document or otherwise not in accordance with this Agreement),

(iii) alteration or abuse of media on which the Software is stored,
(iv) failure to materially follow Interworks’ instructions for installation, operation or maintenance, or

(v) third party products, so long as these third party products have been indicated to Licensee and Licensee has agreed to any applicable third party product terms and conditions,

(vi) power failure or surges, fire, flood or the like,

(vii) incidents relating to Force Majeure.

3.3 Licensee’s Responsibilities. Licensee is solely responsible for: 

(i) purchasing and obtaining from third parties, and for maintaining during the Term of this Agreement, all applicable licenses and consents for third party technology needed to install, execute, market, sell, sublicense, distribute, provide services with respect to, and otherwise use the Software (unless provided by Interworks and paid for by Licensee to Interworks);

(ii) proper configuration of all equipment, other software and systems used with the Software; and

(iii) Licensee’s warranties to third parties, including Resellers, Customers and Users, with respect to the Licensee Services or the Software, according also to term 1.7 of this Agreement.

4. DISCLAIMERS

4.1 Disclaimer of Warranty.  Company shall not be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, arising out of the use of or the misuse of  the Software. Company makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Software, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information.

4.2 Except for the express warranties stated herein, the Software is provided on an “as is” basis, and Company disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Software or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. The Software, on delivery, shall not include any a computer virus, worm, time bomb, logic bomb or other such computer program.

5. INTELLECTUAL PROPERTY AND IDEMNITY

5.1 Intellectual Property Indemnity.  Subject to the terms and conditions of this Agreement, Interworks will hold harmless, indemnify and defend Licensee from losses, liabilities, claims, damages, judgments, causes of action, legal proceedings and suits brought by a third party against Licensee to the extent based on a claim that the Software infringes any – patent, copyright, trade secret or trademark and Interworks will pay any final judgment rendered on, or settlement agreed to in writing by Interworks with respect to, such claim. Licensee agrees to promptly notify Interworks in writing of any claims or threatened claims, Interworks having sole control over the defense and all negotiations for settlement of any such claim, and Licensee giving all reasonable assistance to Interworks in the defense and settlement of the claim. Interworks will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

5.2 Limitations of Indemnity.  Interwork’s obligations under Section 5.1 do not apply to any claims, damages or liabilities that result from any of the following (“Excluded Claims”):

(i) any software, product or component thereof that is not supplied by Interworks to Licensee under this Agreement;

(ii) the combination of the Software with any other software, products, equipment, component, process or material not obtained from Interworks under this Agreement;

(iii) any modification to the Software (unless made by Interworks) if the alleged infringement arises from such modification;

(iv) use of the Software in a manner not permitted by or in breach of this Agreement; 

(v) failure to use replacement or modified Software that provides substantially similar functionality as the original Software and the replacement or modified Software would have rendered the Software non infringing; or

(vi) Interworks’ compliance with Licensee’s instructions, specifications or requirements.

No indemnification for any third party products supplied by Interworks is provided under this Agreement unless and to the extent indemnification is provided to Licensee or to Interworks under the terms of Interwork’s agreement with the licensor. INTERWORKS WILL PROVIDE NO INDEMNIFICATION AND WILL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY OPEN SOURCE SOFTWARE PROVIDED TO LICENSEE.

Licensee will indemnify and hold harmless Interworks for third party intellectual property claims resulting from (i) Licensee’s modification of the Software in a manner not permitted by Interworks under this Agreement; and (ii) Licensee’s combination of the Software with materials provided by Licensee. 

In addition, each party will indemnify and hold harmless the other party for third party claims alleging that the provision or use of the Software or Services violates applicable law.       

Interworks agrees to promptly notify Licensee in writing of any claims or threatened claims, Licensee having sole control over the defense and all negotiations for settlement of any such claim, and Interworks giving all reasonable assistance to Licensee in the defense and settlement of the claim. Licensee will not be responsible for any settlement it does not approve in writing.    

5.3 Interwork’s Options.  If the Software (excluding third party products) becomes, or in Interwork’s opinion is likely to become, the subject of an infringement claim, Interworks will, at its option and sole discretion,

(i) obtain for Licensee the right to continue to use the Product as provided in this Agreement;

(ii) replace the Software with another software product that provides similar functionality; or

(iii) if Interworks determines that neither of the foregoing options are reasonably available, Interworks may require that Licensee cease use of the Software, and, provided that Licensee returns or destroys (and certify to such destruction of) all copies of the Software in Licensee’s possession or control, will refund to Licensee any Fees that Licensee paid Interworks or to any of its Channel Partners or Distributors for that Software under the Software License Agreement the Licensee signed, less a reasonable deduction for use based on a 3-year amortization of the Software.

6. LIMITATION OF LIABILITY

6.1 Data Protection. The Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Licensee’s or the end user’s data, as described in this Document. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of those data by the Company’s personnel except (a) to provide the services and prevent or address service or technical problems, (b) in cases where the Company is compelled by law in accordance with term 7.2 below, or (c) in cases where the Licensee expressly permits in writing. 

6.2 OTHER THAN EITHER PARTY’S LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR IN CASES MENTIONED IN TERM 5.1 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL,  OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

6.3 OTHER THAN LICENSEE’S LIABILITY FOR NONPAYMENT CASES, EACH PARTY’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR IN CASES MENTIONED IN TERM 5.1 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY THE LICENSEE TO INTERWORKS OR ITS CHANNEL PARTNERS OR DISTRIBUTORS THE PRECEDING MONTH OF THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT THE LICENSEE’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. 

6.4 EXCEPT AS EXPRESSLY SET FORTH IN TERM 5, INTERWORKS IS NOT LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOFTWARE.

6.5 THESE LIMITATIONS OF LIABILITY ARE FUNDAMENTAL TO THE BASIS OF THE BARGAIN UNDER THIS AGREEMENT, AND THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT, IN CASES WHERE THESE LIMITATIONS WERE ABSENT. NONE OF INTERWORK’S LICENSORS OR SUPPLIERS WILL HAVE ANY LIABILITY IN CONNECTION WITH THIS AGREEMENT.

7. CONFIDENTIALITY

7.1 Confidentiality Obligations.  Each party agrees to keep confidential and not to disclose to any third party, and to use only for purposes of performing or as otherwise permitted under this Agreement, all proprietary or confidential information disclosed or made available by the other party pursuant to this Agreement which is designated confidential or proprietary or which should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure by the disclosing party  (“Confidential Information”). In the case of Interworks, all proprietary or confidential information relating to the Software disclosed or made available by Interworks, including without limitation the Software itself and all technical information about it, as well as the terms of this Agreement, shall be deemed Confidential Information of Interworks, whether or not so labeled or identified. The receiving party shall protect the Confidential Information using measures similar to those it takes to protect its own confidential and proprietary information of a similar nature but not less than reasonable measures.  The Confidential Information shall only be disclosed to the receiving party’s employees and contractors who are bound by obligations of confidentiality and non-use no less restrictive than this Agreement. 

7.2 Exceptions.  These obligations shall not apply to information which is publicly available other than through unauthorized disclosure by the receiving party, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained by the receiving party from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed by the receiving party, in which case such party must use its best efforts to give the disclosing party notice of the requirement so that disclosure can be contested by the disclosing party.

8. GOVERNING LAW, JURISDICTION AND VENUE

This Agreement and all of its Annexes or Addenda shall for all purposes be governed by and interpreted in accordance with the laws of England and Wales, as those laws are applied to contracts entered into. Any legal suit, action or proceeding arising out of, or relating to this Agreement, shall be commenced in the courts of England and each party hereto irrevocably submits to the personal and exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives any right which it may have to transfer or change the venue of any such suit, action or proceeding, except that in connection with any suit, action or proceeding commenced in a court.

9. SEVERABILITY

If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected and same shall remain in effect.