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Subscription Agreement

SOFTWARE-AS-A-SERVICE AGREEMENT

BY CLICKING ON THE “ACCEPT” BUTTON AND BY USING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY AND THEREBY BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED FOR USE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

THIS SOFTWARE-AS-A-SERVICE AGREEMENT (the “Agreement”) is made and entered as of the date you click on the “ACCEPT” button (the “Effective Date”), by and between you (“Customer”) and Perception Systems, Inc. (“Perception”).

NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:

  • Definitions.
    • “Agreement” – has the meaning set forth in the first paragraph of this Agreement.
    • “Confidential Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such entity; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing entity and marked “confidential” or with words of similar meaning; (c) Customer Data; or, (d) any information derived from Confidential Information. The term “Confidential Information” does not include any information or documentation that was: (w) already in the possession of the receiving entity without an obligation of confidentiality; (x) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (y) obtained from a source other than the disclosing entity without an obligation of confidentiality; or, (z) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).
    • “Customer” – has the meaning set forth in the first paragraph of this Agreement.
    • “Customer Data” – has the meaning set forth in Section 8.4 below.
    • “Documentation” – means Perception’s documentation describing the capabilities of the Software and the Website.
    • “Downtime” – means the Website is unavailable for use by Customer, due to a defect or error in the Software or the Website.
    • “Effective Date” – has the meaning set forth in the first paragraph of this Agreement.
    • “License Fees” – the fee payable hereunder for the use of the Website and the Services, as specified in the Software.
    • “Maintenance Release” – an update, upgrade, patch or other modification to the Software and/or the Website made by Perception.
    • “Named User” – a specific individual user of the Website, authorized to do so pursuant to the terms of Section 2.5 hereof.
    • “Pre-existing Materials” – has the meaning set forth in Section 7.1 below.
    • “Perception” – has the meaning set forth in the first paragraph of this Agreement.
    • “Services” – hosted “software as a service” with respect to the Software and all other services, monitoring, support, backup and recovery, change management, and technology upgrades necessary for Customer’s productive use of the Software.
    • “Software” – the database and software of Perception being accessed by Customer pursuant to this Agreement.
    • “Term” – has the meaning set forth in Section 3.1 below.
    • “Website” – the website through which Perception provides licensed users access to and use of the Software on a hosted basis, for the purpose of entering, managing, maintaining and transmitting Customer Data.
  • Grant of License; Terms of Use.
    • License. Subject to payment of the License Fees, Perception hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Software and the Services for the Term.
    • Terms of Use. Customer agrees to use the Software and the Services solely for its own internal business operations the purpose of entering, managing, maintaining and transmitting Customer’s own data, but not the data of any other party. Customer shall not be entitled to grant any sublicense under the license granted hereby, or permit the Software to be used by or for the benefit of, any third party other than a third party service provider that uses the Software for the sole purpose of entering, managing, maintaining and transmitting Customer’s data.
    • Intellectual Property Rights. Perception and/or its affiliates own all rights, title and interests, including all intellectual property rights, in and to the Software and the Website and any related materials and other content provided by Perception (“Intellectual Property Rights”). Customer agrees that any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software, the Website or the Services shall be owned by, and are hereby assigned and transferred to, Perception. Customer agrees not to cause or permit the reverse engineering, disassembly or decompilation, data scraping, use web crawlers, or any automated means of accessing or using any portion of the Website, Software, or Services in any manner and any such use shall be deemed a material breach of this agreement and, in Perception’s sole discretion, this Agreement may be immediately terminated by Perception. Customer further agrees not to copy, modify, create derivative works of, rent, lease, loan, sell, assign, distribute, grant a security interest in, or otherwise transfer any right to the Software, the Website or the Services or the underlying technology or software.
    • Maintenance Releases. Perception will provide Maintenance Releases to the Website, the Software and the other technology underlying the Website, in Perception’s sole discretion and without required notice. All Maintenance Releases are owned by Perception, provided that the license granted hereby applies equally to such Maintenance Releases as and when they are implemented on the Website. Customer consents to the implementation of the Maintenance Releases on the Website. Perception shall not be liable in any manner for any Downtime or claims related to Maintenance Releases of the Software, Services, or Website.
    • Named Users and Passwords.
      • The Website and the Services are licensed on a “Named User” basis. Named User licenses provide for the assignment of user accounts to specific users of the Website and the Service, with the maximum number of specific users being equal to the number of Named User accounts set up by Customer in the Software or by otherwise contacting Perception. Only Named Users with an active Named User account shall have access to the Website and the corresponding use of the Software. Named User accounts cannot be shared or used by more than one individual user but may be reassigned to new Named Users replacing former Named Users.
      • Customer and its Named Users shall not reveal Customer’s passwords to anyone else, and Customer may not use anyone else’s password. Customer is responsible for maintaining the confidentiality of its passwords. Customer agrees to immediately notify Perception of any unauthorized use of Customer’s passwords or accounts or any other breach of security relating to the Website or the Services. Customer also agrees to exit from Customer’s accounts at the end of each session. Perception will not be responsible for any loss or damage that may result if Customer fails to comply with these requirements.
      • As a part of the Service, Perception shall be responsible for all user identification and password change management.
  • Term and Termination.
    • Term. The term (the “Term”) of this Agreement shall commence on the Effective Date and shall automatically renew for periods of one month unless otherwise terminated pursuant to Section 3.2, below.
    • Termination. Customer may terminate this Agreement at any time. This Agreement and the license granted hereunder will terminate automatically if Customer fails to comply with any of the terms or limitations described herein.
    • Effect of Termination. Upon termination of this Agreement, the license granted hereunder shall terminate upon expiration of the then current Term, and upon expiration of the then current Term Customer shall immediately cease using the Software, and Perception is authorized to render the Software inaccessible to Customer. Upon such termination, all Customer Data shall be returned to Customer pursuant to Section 9.4 below.
    • Survival. The provisions in Sections 6, 7, 8 and 9 shall survive termination of this Agreement.
  • License Fees and Payment.
    • Customer shall pay to Perception the License Fees set forth in the Software via credit or debit card payment.
    • Except as otherwise agreed in writing between Customer and Perception, once payment of the License Fees has been made by Customer, no refunds of any kind shall be issued or returned to Customer.
    • In the event a payment method on file does not properly charge or payment is otherwise not made at the beginning of the renewal term, Perception may, in its sole discretion, immediately restrict access to the Software, Services, or Website or otherwise suspend Customer’s account for such Software, Services, or Website and may delete any Customer Data stored in connection with the Software, Services, or Website. In no manner will Perception be liable for any claims resulting from the rights of Perception under this Section.
  • Representations and Warranties.
    • it is duly organized, validly existing, and in good standing under the laws of its state of organization;
    • it has all requisite power and authority to execute, deliver, and perform its obligations under this Agreement;
    • the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors' rights generally and by general equitable principles; and
    • it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement.
  • Confidential Information.
    • Acknowledgement. The parties hereto acknowledge that each party may be exposed to or acquire Confidential Information of the other party.
    • Obligation of Confidentiality. Customer agrees not to disclose any Confidential Information to third parties or to use any Confidential Information for any purposes whatsoever other than to fulfill Customer’s rights and obligations under this Agreement. Customer shall require any of its employees, agents, or otherwise to be legally bound by the confidentiality obligations with respect to the Confidential Information under terms no less restrictive than those specified under this Agreement.
  • Proprietary Rights.
    • Pre-existing Materials. Customer acknowledges that, in the course of performing the Services, Perception may use software and related processes, instructions, methods, and techniques that have been previously developed by Perception (collectively, the “Pre-existing Materials”) and that same shall remain the sole and exclusive property of Perception.
    • No License. Except as expressly set forth herein, no license or any ownership or other interest is granted or transferred in any manner by either party to the other with respect to any Intellectual Property Rights, Confidential Information, Pre-existing Materials, or Customer Data.
  • Warranty and Disclaimer.
    • Performance. THE SOFTWARE, WEBSITE, AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PERCEPTION, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE, SERVICES, OR WEBSITE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
    • Downtime. Notwithstanding the foregoing express limited warranty, Perception does not guarantee or warrant continuous or uninterrupted access to the Website, or the continued existence or availability of the Internet. Perception shall have no liability to Customer for any losses, damages, claims or expenses of any nature for any interruption in access to the Website. If Downtime is caused by factors outside Perception’ control, Perception will notify Customer and will use commercially reasonable efforts to notify the party or parties responsible for the source and cooperate with it/them to resolve the problem as soon as possible.
    • Disclaimers.
      • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SERVICES, THE WEBSITE OR THE SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO: (A) DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR LOSS OF DATA OR OTHER INTANGIBLE LOSSES, (B) DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE WEBSITE AND THE SERVICES; OR (C) DAMAGES RESULTING FROM UNAUTHORIZED ACCESS TO, ALTERATION OF, OR INACCURACY, ERROR OR OMISSIONS IN THE CUSTOMER DATA.
      • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PERCEPTION WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO PERCEPTION FOR THE SERVICES FOR THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH CUSTOMER FIRST NOTIFIES PERCEPTION OF SUCH LOSS, DAMAGE, CLAIM, FINE OR EXPENSE.
      • Perception disclaims any responsibility for, and Customer will not be entitled to a refund or any other damages as a result of, any service outages that are caused by Perception’ maintenance on the servers or the technology that underlies the Website, problems inherent in the use of the Internet and electronic communications, failures of Perception’ service providers (including telecommunications, hosting, and power providers) or computer viruses.
      • Customer acknowledges that Perception may contract with one or more third parties to provide the hosting environment for the Services (“Third Party Services”). Customer agrees that Perception shall have no liability to Customer for any Downtime or other unavailability of the Services resulting from a third party’s failure to provide such Third Party Services, other than as set forth in Sections 8.1 and 8.2 above.
      • SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES/JURISDICTIONS, SERVICE PROVIDER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
      • The Website may contain links to other Internet sites owned by third parties. Customer’s use of each of those other sites is subject to the conditions, if any, that each of those sites have posted. Perception has no control over sites other than Perception’, and Perception is not responsible for any use of such sites or content on them. Perception’ inclusion on the Website of any third-party content or a link to a third-party site is not an endorsement of that content or third-party site.
    • Data Ownership; Loss. All data created or transmitted by Customer and stored on the Website’s servers as part of the Services (“Customer Data”) shall at all times be owned by Customer. Perception shall treat Customer Data as Confidential Information, and shall not disclose such Customer Data to any other person, nor use such Customer Data for its own benefit or the benefit of any other person. Customer agrees and acknowledges that it is in a better position to foresee and evaluate any potential damage or loss it may suffer in connection with loss of Customer Data and that the fees payable under this Agreement have been calculated on the basis that Perception shall exclude liability as provided in this Section 8. Customer hereby grants to Perception a royalty free, fully paid up, perpetual, worldwide, sub-licensable (through multiple tiers) license to use the Customer Data for the purpose of providing the Services, including a license to store, record, transmit, maintain, display, create derivative works from, and derive results and analysis from the Customer Data. Any resulting works or analysis derived from Customer Data by Perception shall be the property of Perception and Customer hereby assigns rights, title, and interest in and to all of such works and/or analysis to Perception. Customer acknowledges that it is solely responsible for the Customer Data. Customer acknowledges that any collection, compilation and reformatting of data entails the likelihood of some human and machine errors, omissions, delays, interruptions, and losses, which may give rise to loss or damage.
  • General.
    • Relationship between Customer and Perception. Perception is and shall remain an independent contractor in relation to Customer and nothing herein shall be construed to create any partnership, joint venture or employer/employee relationship between Customer and Perception or its employees or its subcontractors.
    • Governing Law. his Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws principles. Subject to any dispute resolution procedures in Section 9.3, all legal proceedings relating to the subject matter of this Agreement shall be maintained in federal or state courts sitting in Orange County, California and each party consents to and agrees that jurisdiction and venue for any such legal proceedings shall lie exclusively with such courts.
    • Dispute Resolution. In the event of any disagreement regarding performance under or interpretation of this Agreement and prior to the commencement of any formal proceedings, the parties hereto shall attempt in good faith to reach a negotiated resolution by designating a representative of appropriate authority to resolve the dispute. In the event the designated representatives are unable to reach agreement then upon the written request of either party, each of the parties will appoint a designated executive whose task it will be to meet for the purpose of endeavoring to resolve such dispute and/or to negotiate an adjustment to the Agreement. The designated executives shall meet as often as the parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the parties believe to be appropriate and germane in connection with its resolution. Such executives will discuss the problem and/or negotiate in good faith in an effort to resolve the dispute or renegotiate the applicable section or provision of this Agreement without the necessity of any formal proceeding relating thereto. No action for the resolution of such dispute outside of these procedures shall be taken by either party until one of the designated executives concludes in good faith that amicable resolution through continued negotiation of the matter in issue does not appear likely and so notifies the other designated executive in writing. The provisions of this Section 9.3 will not apply to any dispute relating to the parties’ obligations of confidentiality set forth in Section 6.
    • Force Majeure. If the performance of this Agreement, or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party including, but not limited to acts of God, weather conditions, explosion, flood, fire or other casualty, strikes, labor shortages, lockouts or other industrial actions or trade disputes, acts, restrictions, regulations, laws, prohibitions or measures of any kind on the part of any governmental entity (including, but not limited to, such acts or measures which restrict or limit access to or use of the Internet), war or threat of war, sabotage, riot, revolution, civil disturbance, requisition, computer viruses or programs or routines of any nature introduced by hackers or saboteurs which cause all or any part of the Customer Data to be erased or impaired or access to or performance of the Software to be impaired, or failure of the Internet or access to the Internet, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference.
    • No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
    • Entire Agreement. his Agreement constitutes the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Customer and Perception as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties hereto.
    • Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties hereto agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. No waiver of any term of this Agreement shall be valid unless it is in writing and signed by the party who is asserted to have made the waiver. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
    • Headings. Headings and captions used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement.
    • Successors and Assigns. This Agreement may not be assigned by either party without the other party’s prior written consent. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. Perception may subcontract all or a portion of its responsibilities hereunder.
    • Attorneys’ Fees. If any legal action is brought to construe or enforce any provision of this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees and court costs in addition to any other relief it may receive.
    • Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified above for Perception or at such address as Customer provides to Perception. Such notice shall be deemed given upon personal delivery; if sent by confirmed telephone facsimile, upon confirmation of receipt; if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing or if sent by overnight express delivery service, upon receipt.
    • Third Party Beneficiaries. There are no third party beneficiaries of this Agreement. Each party’s warranties in this Agreement are made solely to and for the benefit of the other party. No person or entity other than a party may assert or make a claim based on the other party’s warranties under this Agreement.
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