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Provider is the owner of certain proprietary computer software known as Master Repair 8000 solution (the “Software”). Provider provides and sells subscriptions to access and use the Software (the “Services”). Client desires to use the Services and the Software for Client’s internal business purposes, including specifically use in connection with Client’s customers and/or potential customers who are approved by Provider in advance (“Authorized Users”), pursuant to the terms and conditions set forth herein. Provider is willing to provide access to the Services for Client’s internal business use pursuant to the terms and conditions set forth herein.


NOW THEREFORE, in consideration for the mutual promises contained herein and other good and valuable consideration, the parties agree as follows:


  1. Software Subscription.                 Provider grants to Client and Client accepts from Provider, a limited, non-exclusive, non-transferable right to access and use and permit Authorized Users to access and use the Services solely for Client’s internal business use. The Services shall not be used by Client or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement including, without limitation, direct competitors of Provider. Client shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Client acknowledges that its right to use the Services will be web-based only pursuant to the terms of this Agreement and the Software will not be installed on any servers or other computer equipment owned or controlled by Client or otherwise provided to Client. The use of the Services by Client or any Authorized User pursuant to this Agreement shall be subject to any end user agreement, terms of use, and/or privacy policy applicable to or any other applicable website used to access the Services. The Provider will make available the Software to the Client by setting up an account for the Client, and providing to the Client login details for that account as soon as practicable but no later than three (3) Business Days following the Effective Date. The Client must not use the Software: (a)          in any way that is unlawful, illegal, fraudulent or harmful; or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. In accordance with client agreement, during the term of this Agreement, Provider agrees to provide Client with telephone, email or online access to its help desk during their normal business hours.


  1. Intellectual Property Rights. Client acknowledges that all right, title, and interest in and to the Services and the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider. The Provider IP contains trade secrets, confidential and proprietary information owned by Provider and is protected by United States copyright laws (and other laws relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the Software. Client shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means. The provisions of this paragraph 2 shall survive termination of this Agreement.


Provider is and will remain the exclusive owner of all right, title and interest in and to the Service, updates, user materials, Provider’s confidential information, and all other Provider work product and/or other materials provided or accessible to Client in connection with this Agreement, including all intellectual property rights therein. Client grants to Provider a non-exclusive license, during the term of this Agreement, to use data/content for the purposes of performing its obligations under this Agreement. To the extent that Provider a receives from Client or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Service or any other products or services (“Feedback”), Provider may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other products and services.


  1. Subscription Fee.


  1. Client shall pay to Provider the subscription fee (the “Subscription Fee”) in the amount and for the duration that Client has entered and agreed to pursuant to this Agreement. The Subscription Fee for the first Subscription Period (either month or year, as applicable) of the term of this Agreement shall be paid in accordance with client agreement (attached hereto and incorporated herein). Fees for the initial Subscription Term are based on the billing plan and number of Authorized Users selected by Client and are set forth in client agreement. Client agrees to pay for the Services in accordance with this Agreement. Unless otherwise agreed in writing, all Subscription Fees are non-refundable.


  1. The Subscription Fee for all subsequent Subscription Periods of the term of this Agreement shall be paid to Provider on the first day of each subsequent Subscription Period, pursuant to subsection d, below. If you provide credit card information to Provider, you authorize Provider to store the information and use it to charge the associated billing source according to the billing plan and number of Authorized Users selected for the Client’s subscription. For billing plans exceeding one (1) month duration, you authorize Provider to charge the billing source each month without further authorization until the Client’s subscription is terminated. If the billing source your provided declines any charge, Provider will notify you at the email address provided in your registration information. If you do not provide a valid billing source to Provider within three (3) business days of this notice, Provider may terminate access to the Service by you and all other Authorized Users of the Clint for whom payment was not made. After your access to the Service is terminated, Provider will keep your current registration information and Service settings on file for ninety (90) days. After that time, Provider reserves the right to remove your registration information and Service settings from its files with NO liability or notice to the Client or any of its other Authorized Users.


  1. The amount of the Subscription Fee does not include any applicable taxes. Client is responsible for any and all applicable taxes.


  1. Client shall provided a valid credit card, ACH payment system information, bank account information authorized for automatic bill paying, or other acceptable method of payment to Provider and shall take all necessary steps to authorize automatic payment of the Subscription Fee. By agreeing to this Agreement, Client hereby authorizes Provider to automatically charge said method of payment for all Subscription Periods during the term of this Agreement. If, for any reason, automatic payment shall be denied, then Client shall pay the applicable Subscription Fee, together with late fee in the amount of 10% of the portion of the Subscription Fee then due, payable and outstanding, to Provider within five (5) days of notice from Provider. The foregoing late fee may, at Providers sole discretion, be charged against the automatic payment method that is authorized by Client in this paragraph.


  1. Accessibility/Performance. Provider shall use commercially reasonable efforts to make the Services available on a 24×7 basis (twenty-four hours per day, seven days per week) during the Term, except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Provider, or (ii) for any unforeseen cause beyond Provider’s reasonable control, including but not limited to internet service provider or communications network failures, denial of service attacks or similar attacks, or any other force majeure events. Provider will monitor performance indicators on the systems and its own network infrastructure in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software. Provider further reserves the right to monitor and reasonably restrict Client’s ability to use the Services if Client is using excessive computing resources which are impacting the performance of the Services for other subscribers. Provider agrees to notify Client in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work- around solution. Client will: (a) cooperate and consult with Provider in the set-up and activation of the Service for Client, (b) provide and maintain, in good and working order at all times, its own Internet access and all necessary communications equipment, software and other materials necessary for Authorized Users to access and use the Service. Client is responsible for the security of its own computer systems and the security of its access to and connection with the Service. Client will not take any action that: (a) interferes or attempts to interfere with the proper working of the Service or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Service; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features of the Service or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use of the Service or data; or (c) imposes or may impose, in Provider’s sole discretion, an unreasonable or disproportionately large load on the Service infrastructure.


  1. Maintenance and Support. Provider shall maintain the Software and/or Services and provide all patches and fixes to the Software and/or Services pursuant to the terms outlined in client agreement. Provided, however, said maintenance shall not include any major releases of new versions of the Software, additional functionality, or custom programming, which Provider, at its discretion, may provide at an additional cost as otherwise agreed subsequently between the parties in writing. The Client acknowledges that: (a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Software will be wholly free from such defects, errors and bugs; and (b) the Provider does not warrant or represent that the Software will be compatible with any application, program or software not specifically identified as compatible in client agreement.


  1. Term. The Term of this Agreement shall commence on the Effective Date and shall continue for twenty-four (24) months or until terminated as provided herein (the “Subscription Period”). The Agreement shall automatically renew for subsequent Subscription Periods unless either party provides written notice of its election not to renew this Agreement at least sixty (60) days prior to end of the then-current Subscription Period. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Client shall immediately terminate, and the Client shall cease using the Services and shall prohibit Authorized Users from using the Services.


  1. Default. Client shall be in default of this Agreement if Client fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in material default (which, for purposes of this agreement, includes a failure by Client to pay any amounts outstanding pursuant to this Agreement), the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. Provider shall not be deemed to be in material default to the extent the Software and Services retain basic functionality and Provider is using commercially reasonable efforts to address and purported deficiencies. In the event Client breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Client hereby acknowledging the inadequacy of any remedy at law.


  1. Confidentiality. In addition to, and in no way limiting the requirements relating to the Provider IP as set forth in Section 2 of this Agreement, Client shall use its reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) to protect all proprietary, confidential, and/or non-public information pertaining to or in any way connected to the Software, the Services, the Provider’s financial, professional and/or other business affairs, and this Agreement (the “Confidential Information”). Client shall not disclose or publicize the Confidential Information without the Provider’s prior written consent. Client shall use their reasonable efforts (but in no case less than the efforts used to protects its own proprietary information of a similar nature) not to disclose and not to use the Confidential Information for their own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement. The terms of confidentiality and non-disclosure contained herein shall expire three (3) years from the date of the termination of this Agreement. The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Client; (ii) already known to the Client prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed.


All Provider Confidential Information, specifications, manuals, tapes, programs, documentation, reports, report formats, demonstration, training systems and software (including without limitation, relating to the Services) and other tangible or intangible material of any nature whatsoever used, developed or produced by Provider in connection with the Services and/or this Agreement (the “Provider Materials”), and any modifications to the Provider Materials, are and shall remain the sole property of Provider. Client hereby acknowledge and agrees that the Provider Materials, including without limitation, its Confidential Information, constitute and contain valuable proprietary products and trade secrets of Provider, embodying substantial creative efforts and confidential information, ideas, and expressions. The parties acknowledge that this Agreement in no way limits or restricts Provider or any Provider affiliates from developing or marketing on their own or for any third party software or services, as from time to time constituted (including, but not limited to, any modification, enhancement, interface, upgrade or change, and all software, source code, blueprints, diagrams, flow charts, specifications, functional descriptions or training materials relating thereto) without payment of any compensation, or delivery of any notice, to Client.


  1. Limited Warranty.




  1. Limitation of Remedy and Liability. Client represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Client’s intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Client and Authorized Users. Provider does not warrant that the Client’s use of the Services will be uninterrupted or error-free. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In any event, under no circumstances shall Provider be liable for any loss, costs, expenses, or damages to Client in an amount exceeding the Subscription Fee actually paid to Provider by Client for the previous twelve (12) months.
  2. Client agrees to defend, indemnify and hold harmless Provider, its shareholder, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees, agents, attorneys and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees, that may, at any time, arise out of or relate to Client’s authorized, unauthorized, lawful or unlawful use of the Services, including but not limited to Client’s breach of this Agreement.


10. Miscellaneous.


  1. Notice and Demands. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested or delivered personally. Unless Provider is otherwise notified in writing, the Client’s address for notice purposes shall be Client’s address provided as part of Client’s billing information.


  1. Governing Law; Forum Selection. This Agreement shall be governed exclusively by the laws of the State of California, without regard to its conflicts of laws principles. Any action under or concerning this Agreement shall be brought exclusively in the District Court of Monterey County, California. The parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action.


  1. Compliance with Laws. Client shall use the Services in accordance with any and all applicable local, state, and federal laws.


  1. Headings. The paragraph headings in this Agreement are for convenience only and they form no part of the Agreement and shall not affect the interpretation thereof.


  1. Severability. If any provision of this Agreement shall be held illegal, void, or unenforceable, the remaining portions shall remain in full force and effect.


  1. No Waiver. The delay or failure of either party to exercise any right under this Agreement or to take action against the other party in the event of any breach of this Agreement shall constitute a waiver of such right, or any other right, or of such breach, or any future breaches, under this Agreement.


  1. Assignment. Client shall not assign or transfer this Agreement.


  1. No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.


  1. Force Majeure. Provider will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the Provider’s reasonable control, including but not limited to fire, flood, storm, act of God, war, malicious damage, failure of a utility service or transport or telecommunications network.


  1. Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services, and supersedes any and all prior or contemporaneous understandings or agreements whether written or oral. No amendment or modification of this Agreement will be binding unless reduced to a writing signed by duly authorized representatives of the parties and such writing makes specific reference to this Agreement and its intention as an amendment hereto.