1E Software Agreement

MASTER SUBSCRIPTION AGREEMENT

MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF 1E SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT, BY (1) SIGNING THIS AGREEMENT EITHER ELECTRONICALLY OR WITH WET SIGNATURES (2) CLICKING A BOX INDICATING ACCEPTANCE, (3) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated in January 2021. It is effective between Customer and 1E as of the date of Customer’s accepting this Agreement.

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Master Subscription Agreement and schedules hereto.

“Customer” means an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non 1E Applications.

“Documentation” means the applicable documentation and its usage guides and policies, as updated from time to time, accessible via the 1E support portal or available upon request.

“Identifiable information” means is defined as any data that can be used to identify, contact, or locate an individual, either alone or when combined with other information. In the context of this agreement, identifiable information includes: (i) Full Name (ii) Contact Information: Including home addresses, phone numbers, and personal email addresses. (iii) Social Security Number (or equivalent): Unique government-issued identification numbers used for tax and benefits purposes (iv) Date of Birth: The employee’s birthdate, which can be used for identity verification (v) Employee ID: The internal identification number assigned by the enterprise to the employee (vi) Bank Account Information: Bank account numbers, routing numbers, and related financial information used for payroll (vii) Health Information: Information related to an employee’s health or medical condition (this may have additional legal protections under laws like HIPAA in the United States) (viii) Biometric Data: Unique physical or behavioral traits, such as fingerprints, iris scans, or voiceprints.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Non-identifiable Information” means (i) job titles or positions (ii) Business Username: The username used to access endpoint devices/the enterprise identity provider (iii) Business Phone Number: Phone numbers provided by the company for business purposes (iv) Business Email Address: Email addresses provided by the company for work-related communication (v) Office Location: The physical location of the office where the employee works (vi) Business-related Information: Information about an employee’s use of organizational assets such as their endpoint device.

“Order Form or Purchase Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and 1E or any of their Affiliates, including any addenda, amendments and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.

“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by 1E.

“1E” means the 1E company described in the “1E Contracting Entity, Notices, Governing Law, and Venue” section below.

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription. Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

2. 1E RESPONSIBILITIES

2.1 Provision of Purchased Services.
1E will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable 1E premier support for the Purchased Services to Customer at no additional charge (support services detailed in Schedule 3), and/or upgraded premier plus support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which 1E shall give advance electronic notice whenever possible), and (ii) any unavailability caused by circumstances beyond 1E’s reasonable control, including, for example, an act of Nature, act of government, flood, fire, earthquake, pandemic, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non 1E Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to 1E’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.

2.2 Protection of Customer Data.
1E will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by 1E, its Processor Binding Corporate Rules, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. 1E will make Customer Data is made available to Customer for export or download via the 1E APIs as provided in the Documentation. After 30 days of the date of Termination, 1E will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

2.3 Technical Data Collection.
Customer agrees (and, where applicable, the Customer shall procure that the Customer’s Customer agrees) that the 1E may use third party tools, hosting providers and platforms to collect, store and use certain technical data gathered in connection with the Services provided to Customer which does not directly enable 1E to identify any individuals (“non-personal data”), gathered in connection with the Services provided to Customer (or Customer’s Customer). Customer agrees (and, where applicable, the Customer shall procure that the Customer’s Customer agrees) that 1E will collect, use and disclose to Supplier’s partners and affiliates non-personal data, including but not limited to: (i) device properties, including, but not limited to IP address, Media Access Control address and unique device identifier or other device identifier; (ii) device software platform and firmware.

2.4 1E Personnel.
1E will be solely responsible for the performance of its personnel (including its employees and contractors) and their compliance with 1E’s obligations under this Agreement, except as otherwise specified in this Agreement.

3. USE OF SERVICES AND CONTENT

3.1 Subscriptions.
Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as annual subscriptions or other such term stated in the applicable Order Form (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by 1E regarding future functionality or features.

3.2 Customer Responsibilities.
Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non 1E Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify 1E promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement and Documentation, Order Forms and applicable laws and government regulations.

3.3 Usage Restrictions.
Customer will not (a) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (b) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (c) copy Content except as permitted herein or in an Order Form or the Documentation, (d) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (e) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

4. FEES AND PAYMENT

4.1 Fees.
Customer will pay all fees specified in Quote and Commercial Terms. Except as otherwise specified herein or in the Quote and Commercial terms(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

4.2 Overdue Charges.
If any invoiced amount is not received by 1E by the due date, then without limiting 1E’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) 1E may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.

4.3 Suspension of Service and Acceleration.
If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, 1E may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, 1E will give Customer at least 10 days’ prior notice that its account is overdue before suspending services to Customer.

4.4 Taxes.
1E’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.

4.5. Vendor Management Systems.
1E will, where applicable use reasonable efforts to comply with any customer request to use an in-house or third party vendor management portal if requested. 1E will not be liable for any fees for any such service and should fees be payable by any third party provider used by Customer for such service Customer will provide 1E with an alternative means of conducting business with 1E or at their option have the third party fees waived.

5. PROPRIETARY RIGHTS AND LICENSES

5.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, 1E reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.2 Access to and Use of Content.
Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.

5.3 License by Customer to Use Feedback.
Customer grants to 1E a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of 1E’s services.

6. CONFIDENTIALITY

6.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of 1E includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional 1E services.

6.2 Protection of Confidential Information.
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, 1E may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non 1E Application Provider to the extent necessary to perform 1E’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

6.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

7.1 Representations.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2 1E Warranties.
1E warrants that during an applicable subscription term (a) the Services will perform materially in accordance with the applicable Documentation, and 1E will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

7.3 Disclaimers.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

8. MUTUAL INDEMNIFICATION

8.1 Indemnification by 1E.
1E will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by 1E in writing of, a Claim Against Customer, provided Customer (a) promptly gives 1E written notice of the Claim Against Customer, (b) gives 1E sole control of the defense and settlement of the Claim Against Customer (except that 1E may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives 1E all reasonable assistance, at 1E’s expense. If 1E receives information about an infringement or misappropriation claim related to a Service, 1E may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching 1E’s warranties under “1E Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by 1E, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Non-1E Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.

8.2 Indemnification by Customer.
Customer will defend 1E and its Affiliates against any claim, demand, suit or proceeding made or brought against 1E by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-1E Application provided by Customer, or (c) the combination of a Non-1E Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against 1E”), and will indemnify 1E from any damages, attorney fees and costs finally awarded against 1E as a result of, or for any amounts paid by 1E under a settlement approved by Customer in writing of, a Claim Against 1E, provided 1E (a) promptly gives Customer written notice of the Claim Against 1E, (b) gives Customer sole control of the defense and settlement of the Claim Against 1E (except that Customer may not settle any Claim Against 1E unless it unconditionally releases 1E of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against 1E arises from 1E’s breach of this Agreement, the Documentation or applicable Order Forms.

8.3 Exclusive Remedy.
This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

9. LIMITATION OF LIABILITY

9.1 Limitation of Liability.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING 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 CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

9.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES 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.

10. TERM AND TERMINATION

10.1 Term of Agreement.
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

10.2 Term of Purchased Subscriptions.
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at 1E’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

10.3 Termination.
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.

10.4 Refund or Payment upon Termination.
If this Agreement is terminated by Customer in accordance with the “Termination” section above, 1E will refund Customer any prepaid fees covering the remainder of the term of the applicable Order Forms after the effective date of termination. If this Agreement is terminated by 1E in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to 1E for the period prior to the effective date of termination.

10.5 Surviving Provisions.
The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as 1E retains possession of Customer Data.

11. GENERAL PROVISIONS

11.1 Anti-Corruption.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. 

11.2 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between 1E and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. 

11.3 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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. 

11.4 Third-Party Beneficiaries.
There are no third-party beneficiaries under this Agreement. 

11.5 Waiver.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. 

11.6 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. 

11.7 Assignment.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, 1E will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. 

11.8 Publicity.
1E shall be permitted to use the Customers name and Corporate logo on it’s marketing and promotional materials including but not limited to 1E’s website. The Customer may agree to provide (at 1E’s expense) publicity in the form of a case study/testimonial of the customers experience with 1E products and services. 1E may use said testimonials or case studies in full or part for any promotional purpose across any media. Upon execution of this agreement 1E may, at their sole discretion issue a press release confirming the relationship of the parties. 

11.9 Notices, Governing Law, and Venue.
The 1E entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled.

If Customer is domiciled in:1E Contracting Entity Notices addressed toJurisdiction
The United States of America, Canada, Mexico or a Country In Central or South America or the Caribbean1E Inc244 Madison Avenue, No1052, New York, NY10016. USAThe State of Delaware. USA
Europe, The Middle East, Africa, Asia Or Australisia1E LimitedCP House, 97-107 Uxbridge Road, Ealing, London, United Kingdom W55TLEngland & Wales

11.10 Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. 

11.11 Agreement to Governing Law and Jurisdiction.
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

1E Software Agreement

Contents

1. Entire Agreement

Licensee acknowledges that Licensee has read this agreement and understands this agreement (the “Agreement”) is the final, complete and exclusive statement of the entire agreement between 1E Limited and Licensee. This Agreement supersedes any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this Agreement, whether oral or written. No terms or conditions, other than those contained in this Agreement, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon 1E Limited unless made by a written agreement, executed by duly authorised representatives of both 1E Limited and Licensee.

2. Licensed Software And Documentation License

2.1. 1E Limited hereby grants Licensee a personal, non-exclusive and non-transferable revocable licence, free of charge, to use the downloaded computer software (the “Licensed Software”) and the associated printed or electronic documentation (the “Documentation”), subject to the limitations set forth in this Agreement (the “Licence”). All right, title and interest to the Licensed Software and the Documentation are, and shall remain, in 1E Limited or 1E Limited’s licensors, as the case may be. Licensee have no right of access to the source code of the Licensed Software. Licensee may not be entitled to updates or upgrades of the Licensed Software or Documentation.

2.2. Licensee may not alter, assign, create derivative works, decompile, disassemble, distribute, lease, modify, reverse engineer, sublicense, transfer or translate in any way the Licensed Software or Documentation which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is of a confidential nature (“Confidential Information”) without the prior written consent of 1E Limited except as strictly necessary to perform its obligations or exercise its rights under this Agreement (except as specifically and expressly provided below for “redistributable files”); provided, however, that Licensee may permanently and simultaneously transfer all of the Licensed Software, Documentation and the Licence if Licensee: a) delivers to the transferee the Licensed Software and Documentation; b) notifies 1E Limited in writing of such transfer; and c) destroys any archival/backup copy. Licensee agrees that the transferee must expressly accept all terms and conditions of this Agreement.

2.3. Licensee MAY NOT COPY the Licensed Software or Documentation (except as specifically and expressly provided below for “redistributable files”); provided, however, that Licensee may make one (1) copy of the Licensed Software and the associated electronic documentation for archival/backup purposes.

2.4. Licensee MAY NOT distribute the Licensed Software, in any format, to other users for development or compiling purposes. In particular, if Licensee creates a control using the Licensed Software as a constituent control.

2.5. This Agreement may be terminated: by either Party upon giving written notice to the other; or if the other party shall commit any act of bankruptcy, shall have a receiving order made against it, shall make negotiations for any composition or arrangement with or assignment for the benefit of its creditors or if the other Party being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up or shall enter into any liquidation (other than for the purpose of reconstruction or amalgamation), shall call a meeting of its creditors, shall have a receiver or all or any of its undertakings or assets appointed, shall be deemed by virtue of section 123 of the Insolvency Act 1986 to be unable to pay its debts or is insolvent, or shall cease to carry on business or in the case of an individual commits any act of bankruptcy or dies or in the case of a partnership is dissolved, or if the other Party undergoes or suffers any analogous acts or proceedings under any foreign law; or if either the Licensed Software or Documentation is used in any way not expressly and specifically permitted by this Licence, then the Licence shall immediately terminate. Upon the termination of the Licence, Licensee shall thereafter make no further use of the Licensed Software or Documentation, and Licensee shall destroy all licensed materials.

3. Confidentiality

Licensee shall keep confidential all documents, materials, software, information or data which is disclosed or made available to Licensee under or pursuant to this Agreement (in whatever form or medium) (collectively “Confidential Information”). Confidential Information shall include but not be limited to all information relating to 1E Limited’s products, software, applications, modules, sub-modules, other software programs and samples, know-how, data, formulae, processes, designs, photographs, drawings, specifications, inventions, and of or relating to the functionality, features, compatibility, errors, performance, speed of execution, architecture and business logic of or connected with any such products or software, and all other technical information of 1E Limited.

Licensee may not disclose or permit the disclosure of any Confidential Information to any other company, firm, individual or other person or entity without the prior written consent of 1E Limited, save that Licensee may however disclose Confidential Information to its employees and officers on a strictly need to know basis. Licensee shall only use the Confidential Information (and any embodiments thereof) to the extent necessary in order to use 1E Limited’s software licensed hereunder and for no other purpose. Licensee may not make any copies of the Confidential Information save to the extent permitted under this Agreement or as otherwise permissible by law. Licensee shall not use the Confidential Information so as to procure any commercial advantage over 1E Limited.

The obligations of confidentiality set out above shall not apply to any information that: (i) Licensee can prove, using written records, was already lawfully in its possession before that information was disclosed by 1E Limited or on 1E Limited’s behalf; (ii) is in or enters the public domain other than as a result of a breach of the License by Licensee or its employees or officers; (iii) Licensee acquires from a third party otherwise than as a result of a breach of an obligation of confidence owed to 1E Limited; or (iv) is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, in each case to the extent of the disclosure required provided that Licensee shall use all reasonable endeavours to give 1E Limited not less than two (2) business days in writing of such disclosure so that 1E Limited may intervene in response to such order to obtain an appropriate protective court order or other remedy which 1E Limited considers suitable. Licensee shall notify 1E Limited promptly if Licensee becomes aware that any of the Confidential Information falls within the provisions of this paragraph 3.

4. Disclaimer

The Licensed Software and Documentation are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, 1E Limited disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. 1E Limited does not warrant that the functions contained in the Licensed Software will be uninterrupted or error-free, that defects will be corrected, or that any website or the server or any other media that makes it available are free of viruses or other harmful components. 1E Limited does not warrant or make any representations regarding the use or the results of the use of the Licensed Software or Documentation in terms of their correctness, accuracy, reliability, or otherwise. 1E Limited does not warrant that the Licensed Software will be compatible with all operating systems or other software applications and 1E Limited does not accept liability for any direct, indirect, consequential or incidental loss or damage arising from or relating to the Licensed Software or its testing hereunder howsoever caused, including negligence, provided that nothing in this Agreement shall restrict or limit 1E Limited’s liability for death or personal injury caused by its negligence. The Licensee (and not 1E Limited) assumes the entire cost of all necessary servicing, repair or correction. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

5. Miscellaneous

This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without giving effect to any principles of conflicts of law. It is irrevocably agreed that the courts of England and Wales shall have exclusive jurisdiction as regards any claim or matter arising out of or in connection with this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between the parties relating to the subject matter herein. Please e-mail us at [email protected]