SOARION DIGITAL, LLC

END USER LICENSE AGREEMENT

THIS END USER LICENSE AGREEMENT (“AGREEMENT” OR “EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) (“LICENSEE” OR “YOU”) AND SOARION DIGITAL, LLC, AN OHIO LIMITED LIABILITY COMPANY, TOGETHER WITH ITS AFFILIATED ENTITIES (COLLECTIVELY, “LICENSOR,” “SOARION DIGITAL,” OR “COMPANY”), FOR THE SOARION SOFTWARE IDENTIFIED HEREIN, WHICH INCLUDES COMPUTER SOFTWARE, ARTIFICIAL INTELLIGENCE AGENTS, AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, AND “ONLINE” OR ELECTRONIC DOCUMENTATION (“SOARION SOFTWARE”).   SOARION DIGITAL PROVIDES THE SOARION SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY DIGITALLY ACKNOWLEDGING ACCEPTANCE (VIA CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE SOW/OR OTHER MEANS PROVIDED FOR ACCEPTANCE) YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT ACCESS OR USE THE SOFTWARE OR DOCUMENTATION.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF SOARION SOFTWARE.   BY CLICKING THE “I ACCEPT” BUTTON, DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR OTHERWISE USING THE SOARION SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.  IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOARION SOFTWARE AND PROMPTLY DELETE ANY DOWNLOADED COPIES.  THE SOARION SOFTWARE IS PROTECTED BY COPYRIGHT LAWS, INTELLECTUAL PROPERTY LAWS, AND INTERNATIONAL TREATIES. THE SOARION SOFTWARE IS LICENSED, NOT SOLD.  SOARION DIGITAL AND LICENSEE EXPRESSLY AGREE THAT SOARION DIGITAL MAY MODIFY THIS EULA FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON THE LICENSEE AS OF THE DATE OF SUCH MODIFICATIONS.

  1. DEFINITIONS. Capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings ascribed to them in the Agreement.
  1. Affiliate:  Affiliate means, with respect to either Soarion Digital or Licensee, any other entity which controls, is controlled by, or is under common control with Soarion Digital or Licensee. The term “control” means the power, directly or indirectly, to direct or cause the direction of Soarion Digital’s or Licensee’s management and/or policies, whether through the ownership of voting securities, by contract, or otherwise.
  1. AI Functionality:  AI Functionality means any component, feature, module, or service of the Soarion Software that uses or incorporates artificial intelligence, machine learning, deep learning, predictive analytics, natural language processing, computer vision, recommendation algorithms, generative models, or any similar algorithmic functionality that infers, predicts, classifies, scores, recommends, generates, or otherwise processes data in a non-deterministic or statistically driven manner.
  1. Authorized Users: Authorized Users means solely those individuals authorized to use the Soarion Software pursuant to the license granted under this Agreement or as set forth on the SOW.
  1. Confidential Information: Confidential Information means information that is of value to its owner and is treated as confidential, including, but not limited to, Trade Secrets, know how, inventions, ideas, discoveries, developments, processes, formulas, diagrams, drawings, designs, software, applications, source and object codes, data, programs, improvements, techniques, product data and specifications, test results, and other technical information, the owner’s products and services and the products and services of its customers and prospective customers; (iii) information concerning the owner’s business and/or the business of its customers and prospective customers, including plans for research, development, and new products, cost information, profits, sales information, accounting and financial information, business plans, markets and marketing methods, advertising strategies, customer lists and customer information, purchasing techniques, supplier lists and supplier information; and (iv) information concerning the owner’s employees, including their compensation and skills. 
  1. Derivative: Derivative means (a) any computer program, work, product, service, improvement, modification, alteration, Enhancement, new version, translation, adaptation, design, concept, interface element, materials and Documentation, in any medium, format or form whatsoever, that is derived in any manner, directly or indirectly, from the Soarion Software or any part or aspect thereof; (b) all “derivative works” of Soarion Software as understood under the copyright laws of the United States; and (c) all materials and Documentation related to any of the foregoing.
  1. Documentation: Documentation means the operating, training and reference manuals relating to the use of the Soarion Software and any other materials or documents and any Enhancements or modifications thereto, supplied by Soarion Digital to Licensee pursuant to this Agreement.
  1. Enhancement: Enhancement means any change or addition to the Soarion Software that, when made, adds new function or improves the Soarion Software’s utility, efficiency, functional capability or application.    
  1. Error: Error means any failure of the Soarion Software to conform in all material respects to the Documentation for the Soarion Software.
  1. Input Data: Input Data means any data, information, content, prompts, queries, text, images, audio, video, files, or other materials that Licensee or any Authorized User inputs into, uploads to, or otherwise provides or makes available to or through the Soarion Software, including for processing by the AI Functionality.
  1. Intellectual Property: Intellectual Property means any and all intellectual property rights and other similar proprietary rights in any jurisdiction, whether registered or unregistered, including all rights and interests pertaining to or deriving from: (a) all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all inventions (whether patentable or not), invention disclosures, improvements, proprietary information, know-how, ideas, technology, technical data and all Documentation relating to any of the foregoing; (c) software, including data files, source code, object code, software-related specifications and Documentation, and any improvements, modifications, and substitutions thereof; (d) copyrights, works of authorship and other copyrightable works, whether registered or unregistered, and whether or not published; (e) Confidential Information, Trade Secrets and other proprietary or confidential processes, formulas, methodologies and technology; (f) trademarks, trade names, service marks, certification marks, corporate names, service names, brands, trade dress and logos and the goodwill associated therewith; (g) domain name registrations and internet addresses; (h) all moral and economic rights of authors and inventors, however denominated; and (i) any similar or equivalent rights to any of the foregoing.
  1. Licensee:  The person, firm, corporation or other entity named as Licensee or “You” in the Agreement, together, jointly and severally, with its Affiliates.   
  1. License Fees: License Fees means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
  1. Maintenance Release: Maintenance Release means software that adds to or replaces existing Soarion Software in order to correct Errors, defects or malfunctions.  
  1. Open Source Materials: Open Source Materials means certain open source code and/or software provided by certain public licenses and which is dedicated to the public domain and may be copied, modified, used, compiled, sold, or otherwise distributed in source code form or otherwise by third parties and is not exclusive to Soarion Digital.   
  1. Output: Output means any data, content, recommendation, classification, score, prediction, decision, summary, insight, report, generated text, image, audio, video, or other result produced, generated, or returned by the Soarion Software, including by the AI Functionality, based on any input, prompt, query, or other data provided or made available by or on behalf of Licensee or any Authorized User.
  1. Owner: Owner refers to the party disclosing Proprietary Information hereunder, whether such party is Soarion Digital or Licensee and whether such disclosure is directly from Owner or through Owner’s employees, independent contractors, subcontractors, or agents.
  1. Person: Person means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
  1. Proprietary Information: Proprietary Information means Trade Secrets, Intellectual Property, Confidential Information, and Trademarks.
  1. Recipient: Recipient refers to the party receiving any Proprietary Information hereunder, whether such party is Soarion Digital or Licensee and whether such disclosure is received directly or through Recipient’s employees or agents.  
  1. Soarion Digital: Soarion Digital, LLC, an Ohio limited liability company, together with its Affiliates; also referred to herein as “Company” or “Licensor.”
  1. Soarion Software:  Soarion Software means the licensor-developed computer program identified in the applicable SOW, purchase documentation, or download page, together with artificial intelligence agents, the Source Code and all Upgrades, Derivatives, Maintenance Releases, and/or Enhancements, and may include associated user interfaces, application programming interfaces (APIs), configuration files, associated media, printed materials, and “online” or electronic documentation offered and provided to Licensee by Soarion Digital in accordance with this Agreement.   
  1. Source Code: Source Code means a series of instructions or statements in an English-like high-level computer language that is normally transformed by an interpreter or compiler into machine-readable executable code for actual use on a computer.
  1. SOW: SOW means the Statement of Work, SOW, or order form provided to Licensee.   
  1. Trademarks: Trademarks means the trademarks and trade names which are proprietary to Soarion Digital or Licensee, as the case may be.
  1. Trade Secrets: Trade Secrets means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:
    1. It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and 
    2. It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.  
  1. Upgrades: Upgrades means new versions or new releases of the Soarion Software, which may include Enhancements and Maintenance Releases, and which are generally distributed to Licensor’s licensees for no additional license fee.  
  1. LICENSE GRANT AND SCOPE. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Soarion Software and Documentation, solely as set forth in this Section 2.0 and subject to all conditions and limitations set forth in Section 4.0 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to use and run the Soarion Software in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes. Such use is permitted only by one Authorized User per login account.   
  1. THIRD-PARTY MATERIALS. The Software may include Open Source Materials and/or software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
  1. USE RESTRICTIONS. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
  1. use (including make any copies of) the Soarion Software or Documentation beyond the scope of the license granted under Section 2.0;
  1. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Soarion Software or Documentation;
  1. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Soarion Software or Documentation or any part thereof;
  1. combine the Soarion Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
  1. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Soarion Software or any part thereof;
  1. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices provided on or with the Soarion Software or Documentation, including any copy thereof;
  1. except as expressly set forth herein, copy the Soarion Software or Documentation, in whole or in part;
  1. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Soarion Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
  1. use the Soarion Software or Documentation in violation of any law, regulation, or rule; or
  1. use the Soarion Software or Documentation for purposes of competitive analysis of the Soarion Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
  1. Soarion Digital’s Right to Suspend or Discontinue Soarion Software without Notice to Licensee.
  1. Degradation:  Soarion Digital may suspend or discontinue furnishing Soarion Software if the Licensee uses or misuses Soarion Software in a manner that results, or could result, in degradations that adversely affect the Soarion Software furnished to Licensee or to other existing or prospective licensees of Soarion Digital.
  1. Violation of EULA or Law:  Soarion Digital may suspend or discontinue the furnishing of Soarion Software if Licensee uses, or threatens to use, Soarion Software for any unlawful purpose or otherwise violates the terms of the EULA.
  1. Unlawful or Unauthorized Use:  Soarion Digital may suspend or discontinue the furnishing of Soarion Software when it deems it necessary to take such action to prevent the unlawful or unauthorized use of Soarion Software.
  1. Nonpayment for Soarion Software:  Soarion Digital may suspend or discontinue the furnishing of Soarion Software if the Licensee fails or refuses to pay for Soarion Software in accordance with its obligations under the Agreement or any other agreement between Soarion Digital and the Licensee.
  1. RESPONSIBILITY FOR USE OF SOFTWARE. Licensee is responsible and liable for all uses of the Soarion Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Soarion Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Soarion Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
  1. COMPLIANCE MEASURES.
  1. The Soarion Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Soarion Software, including features to protect against any use of the Soarion Software that is prohibited under Section 4.0. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
  1. On Licensor’s written request, Licensee shall conduct a review of its and its Authorized Users using the Soarion Software and certify to Licensor in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance:
  1. Licensee shall immediately remedy such noncompliance and provide Licensor with written notice thereof. Licensee shall provide Licensor with all access and assistance as Licensor requests to further evaluate and remedy such noncompliance.
  1. If Licensee’s use of the Soarion Software exceeds the number of Authorized Users permitted under the license, Licensor shall have the remedies set forth in Section 6.4.
  1. During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Soarion Software to ensure Licensee’s compliance with this Agreement. Licensor also may, in its sole discretion, audit Licensee’s systems within three (3) months after the end of the Term to ensure Licensee has ceased use of the Soarion Software. The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all  access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.  
  1. If Licensor determines that the Licensee’s use of the Soarion Software exceeds or exceeded the use permitted by this Agreement then:
  1. Licensee shall, within ten (10) days following the date of such determination by Licensor, pay to Licensor the retroactive License Fees for such excess use and, unless Licensor terminates this Agreement pursuant to Section 6.4.3, obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (x) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
  1. If the use exceeds or exceeded the use permitted by this Agreement by more than five percent (5%), Licensee shall also pay to Licensor, within ten (10) days following the date of Licensor’s written request therefor, Licensor’s costs incurred in conducting the audit.
  1. If the use exceeds or exceeded the use permitted by this Agreement by more than ten percent (10%), Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.
  1. Licensor’s remedies set forth in this Section 6.4 are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.
  1. COLLECTION AND USE OF INFORMATION; DATA AGGREGATION; ARTIFICIAL INTELLIGENCE.
  1. Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Soarion Software and about equipment on which the Soarion Software is installed or through which it otherwise is accessed and used, through security measures included in the Software as described in Section 6.0.
  1. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
  1. improving the performance of the Soarion Software or developing Updates; and
  1. verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property in and to the Soarion Software.
  1. Data. Licensee acknowledges and agrees that Soarion Digital shall be expressly permitted to compile, aggregate, distribute, and/or disclose statistical analyses and reports utilizing Licensee Data (collectively, “Aggregated Data”).  “Licensee Data” means any data, metadata, visual or graphic representations, materials, or information (regardless of form, medium, or source from which derived) provided or made available or accessible to Soarion Digital by or on behalf of, or that are otherwise owned by or relate to, Licensee or to any of its licensees, Authorized Users, providers, payers, personnel, and representatives or created by or via the use of the Soarion Software.
  1. Artificial Intelligence.  
  1. Licensee agrees and acknowledges that the Soarion Software uses AI Functionality.   Licensee acknowledges and agrees that: (i) the AI Functionality uses probabilistic or statistical methods and may generate Outputs that are incorrect, incomplete, outdated, offensive, biased, or otherwise unsuitable for Licensees intended purposes; (ii) the AI Functionality may rely on models and training data that are complex, non-transparent, and not fully explainable, and Licensor makes no representation that the internal operation of such models will be interpretable or disclosed to Licensee; and (iii) the AI Functionality and any Output are tools intended to assist, and not to replace, Licensees own professional judgment, expertise, or decision-making. 
  1. Licensee shall: (i) implement appropriate human review, oversight, and verification of all Outputs, commensurate with the context, sensitivity, and risks associated with Licensees use cases; (ii) not rely on Outputs as the sole basis for any decision that could reasonably be expected to have legal, financial, health, safety, employment, or similarly significant effects on any individual or entity; (iii) independently verify any Output used in contexts where accuracy, reliability, fairness, or non-discrimination are critical; and (iv) ensure that any individuals whose data or rights may be affected by AI-driven decisions or actions are treated in a manner consistent with applicable law and industry standards.
  1. Licensee shall not use the Soarion Software or Output, and shall not permit any third party to use the Soarion Software or Output: (i) to generate, disseminate, or promote content that is unlawful, defamatory, libelous, harassing, threatening, harmful, hateful, discriminatory, or otherwise objectionable, including content that incites violence, discrimination, or hatred; (ii) to generate or manipulate content in a manner that impersonates or misrepresents individuals, organizations, or brands, or that is intended to deceive others about its origin, authenticity, or factual accuracy; (iii) to create or disseminate deepfakes or other synthetic media that could reasonably be expected to cause reputational harm or mislead the public, except where clearly labeled as synthetic and used in lawful, non-deceptive contexts; (iv) to process, infer, or classify individuals based on sensitive characteristics (such as race, ethnicity, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, health, or sexual orientation) in violation of applicable law; (v) to engage in automated decision-making that produces legal or similarly significant effects concerning individuals, without required human oversight or any mandated legal safeguards under applicable law; (vi) to infringe or misappropriate any intellectual property, privacy, publicity, or other rights of any third party; or (vii) in any manner that violates any applicable AI-specific regulations, guidelines, codes of practice, or other binding requirements in the relevant jurisdiction.
  1. Licensee agrees that AI Functionality may be utilized to enhance the efficiency, accuracy, and effectiveness of the Soarion Software, which will directly benefit the Licensee.  Licensee acknowledges and agrees that AI Functionality may be employed in various aspects of the Soarion Software, including, but not limited to, data analysis, decision-making processes, automated recommendations, and predictive modeling.  Licensee acknowledges and agrees that AI Functionality may require access to and analysis of data, including, but not limited to, Licensee Data, Aggregated Data, Confidential Information, personal information, and other relevant datasets.  Licensee acknowledges and agrees that all data generated, processed, or analyzed by AI Functionality in the Soarion Software shall remain the property of the respective data owner(s).  By way of example, any Aggregated Data created by using AI Functionality shall remain the property of Soarion Digital.  Licensee acknowledges and agrees that, while AI Functionality aims to enhance the quality and efficiency of the Soarion Software, it may not be infallible.  Further, anything created by AI Functionality is provided by Soarion Digital to the Licensee on an “AS-IS” basis without any warranties of any kind, and Soarion Digital (on behalf of itself and its affiliates) expressly disclaims any and all warranties, whether express, implied, or statutory, including, without limitation, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement.  Licensee acknowledges that anything created by AI Functionality may include or reference third party materials and may infringe on a third party’s Intellectual Property rights.   Therefore, to the fullest extent permitted by applicable law, Soarion Digital shall not be liable to Licensee or any other person/entity, directly or indirectly, for any claims, demands, suits, costs, expenses (including attorneys’ fees), losses, judgments, damages, liabilities or obligations, of any kind or nature, arising in any manner from or in connection with the use of AI Functionality hereunder.
  1. Licensor does not represent or warrant that the Soarion Software or AI Functionality will, by itself, satisfy any particular regulatory requirements or confer regulatory approval in any jurisdiction. Licensee remains solely responsible for its compliance with all AI-related laws and regulations applicable to its use of the Soarion Software and any resulting Outputs.
  1. PAYMENT. 
  1. License Fees.  All License Fees are payable in the manner set forth in the SOW and are non-refundable. Any renewal of the license hereunder shall not be effective until the fees for such renewal have been paid in full. 
  1. Payments & Accounting.  Soarion Digital may invoice Licensee for License Fees. Licensee agrees to pay each invoice within thirty (30) calendar days following the date of each invoice in U.S. Dollars by wire transfer or immediately available funds to an account designated in writing by Soarion Digital. Soarion Digital’s obligation with respect to any errors resulting in Licensee overpayments for License Fees is limited to granting invoice credits equal to the dollar amounts erroneously billed. Under no circumstance will any billing error affect the Licensee’s obligation to pay License Fees.   
  1. Taxes:  Fees, rates, and charges are exclusive of all taxes, fees, tax-related surcharges and tax-like surcharges. Licensee shall promptly pay any and all applicable sales and use taxes, customs, duties, and tariffs on the license of the Soarion Software provided by Soarion Digital to Licensee.
  1. Late Payment Fee on Past Due Amounts:  Except as expressly provided otherwise, any payment set forth in this EULA not paid when it is due shall bear interest at a rate of one and one half percent (1.5%) per month or the maximum monthly rate permitted by law on past­ due balances from the date said payment is overdue until paid in full.      
  1. Recovery of Collection Costs:  Unless otherwise prohibited by law, Licensee shall reimburse Soarion Digital for any costs incurred by Soarion Digital in undertaking any collection activity, including, but not limited to, the reimbursement of reasonable attorneys’ fees. 
  1. TERM AND TERMINATION.
  1. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the SOW or until earlier terminated as set forth herein (the “Term”).
  1. Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Soarion Software and Documentation.
  1. Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15) days after Licensor provides written notice thereof.
  1. Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
  1. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Soarion Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case.
  1. LICENSEE REPRESENTATIONS AND WARRANTIES; LICENSOR WARRANTY DISCLAIMER; INDEMNIFICATION.  
  1. Licensee Acknowledgements, Representations, and Warranties: Licensee acknowledges, understands and agrees that Soarion Digital will provide the Soarion Software “AS IS” without any warranty or guaranty, express or implied.  Licensee further acknowledges, understands and agrees that Licensee has accessed or received (and had an opportunity to review) (i) Soarion Digital’s Privacy Policy (set forth at https://soariondigital.com/privacy-policy/).  Licensee represents and warrants, by entering into the Agreement and accepting the Soarion Software from Soarion Digital, that: (i) If Licensee is an entity, Licensee is a legal entity duly organized and existing, and is in good standing, under the laws of jurisdiction of its organization; (ii) Licensee’s execution, delivery, and performance of the Agreement has been duly authorized by all appropriate corporate action on the part of Licensee, and this EULA, constitutes a valid and binding obligation of Licensee enforceable against it in accordance with its terms; (iii) there is no outstanding or threatened order, writ, injunction, or decree of any court, governmental agency, or arbitration tribunal against Licensee that affects, involves, or relates to its performance under this EULA; (iv) Licensee is not insolvent, as that term is defined in Ohio Revised Code § 1302(B)(23) of the Uniform Commercial Code and, in the event that Licensee becomes insolvent at any time during its use of the Soarion Software or term of this EULA, it will promptly notify Soarion Digital in writing; (v) Licensee will use the Soarion Software solely as authorized in this EULA and in accordance with all applicable laws, including, without limitation, all laws relating to communications, intellectual property, and data privacy; (vi) Licensee has read, understands, and agrees to be subject to and comply with any and all applicable Third Party terms and conditions, including, without limitation, end user license agreements, privacy policies, and terms of use; (vii) Licensee remains solely responsible for all content created by Licensee and any acts or omissions by Licensee; and (viii) the Soarion Software may include features that operate in conjunction with certain third-party software, Open Source Materials, hardware, applications, and/or websites (“Third Party Features”); while the use of Soarion Software is governed by this EULA, Licensee’s access and use of Third-Party Features is governed by Third Party Licenses; Soarion Digital shall not be responsible for and is hereby released from any responsibility and/or liability related to determining whether Licensee’s use of Soarion Software would cause Licensee to violate or breach the Third-Party Licenses; Licensee further understands and acknowledges that Licensee’s use of Soarion Software may cause Licensee to violate or breach the Third-Party Licenses which could result in the termination of Licensee’s account and/or ability to access Third Party Features and, in some cases, could give rise to liability for damages.  Licensee understands that, to the extent applicable, all or a portion of any third-party content aggregated by the Soarion Software may be copyrighted or subject to other intellectual property protections.    Licensee further acknowledges, understands and agrees that, in the event Licensee is dissatisfied with the Soarion Software for any reason, then the Licensee shall provide detailed written notice of same to Soarion Digital, and Soarion Digital shall use reasonable efforts to cure such dissatisfaction, to the extent reasonably possible, such cure being the Licensee’s sole remedy for such issue.   In the event Licensee fails to comply with the foregoing, (i) Licensee shall indemnify Soarion Digital for any and all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of such failure; and (ii) Soarion Digital shall be entitled to enforce its rights at law and/or equity, including, without limitation, collection efforts as set forth herein.
  1. DISCLAIMER. THE SOARION SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOARION 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 LICENSED SOARION SOFTWARE WILL MEET THE LICENSEE’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.
  1. Indemnification:  The Licensee shall indemnify, defend and hold harmless Soarion Digital and its affiliates, partners, owners, managers, directors, officers, employees, representatives, and their successors in interest and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of (i) any act or omission of the Licensee; (ii) a breach by Licensee of any representation, warranty, and/or agreement with any Indemnified Party; (iii) failure by Licensee to pay any and all applicable taxes, customs, duties, tariffs, and the like arising from the transactions set forth in this EULA; (iv) any and all corrupt data, viruses, malware, or security breaches directly or indirectly introduced by the Licensee or resulting from the Licensee’s failure to take commercially reasonable measures to prevent the same; (v) a violation by Licensee (any of its officers, directors, employees or agents) of any applicable law, regulation, or order of the United States or any other applicable government or quasi-governmental authority; and/or (vi) any claim that Licensee property or any portion thereof infringes or misappropriates any third party patents, copyrights, trademark, and/or Intellectual Property or other proprietary rights. The indemnification obligations under this Section shall continue indefinitely.  
  1. PII Indemnification:  Without limiting Soarion Digital’s rights or Licensee’s obligations under any other provision of this EULA, and notwithstanding the same, in the event of a breach by Licensee of this EULA that results in the theft, loss, or unauthorized disclosure, acquisition, access to or misuse of Soarion Digital’s Proprietary Information, including, without limitation, Proprietary Information consisting of PII (as defined hereinbelow), regardless of whether such PII is owned by Soarion Digital or not, Licensee shall indemnify and hold Soarion Digital harmless from direct damages in connection with any such breach, which will include, without limitation: (i) the reasonable costs and expenses of investigation and analysis (including by law firms and forensic firms retained by Soarion Digital, to the extent Licensee does not share its investigation and analysis work product, or such work product is not reasonably acceptable to Soarion Digital), (ii) reasonable costs of correction or restoration of any destroyed, lost or altered data or assets, notification to affected consumers (including by mail house firms), and (iii) costs of credit monitoring and other reasonably required remediation. Licensee shall reimburse Soarion Digital for any losses incurred by Soarion Digital in enforcing Licensee’s obligations under the privacy and/or confidentiality provisions of this EULA, including Licensee’s destruction obligations, as well as any provisions relating to access, use or handling of Soarion Digital’s Proprietary Information.  The indemnification obligations under this Section shall continue indefinitely.  
  1. PII: Personally Identifiable Information (PII) is defined and set forth in Section 509(4) of the Gramm-Leach-Bliley Act, and all of the rules and regulations implemented thereunder (“PII”).  In addition to and not in limitation of the obligations of Licensee set forth in this EULA, Licensee acknowledges that its business relationship with Soarion Digital may allow Licensee access to PII, which is extremely sensitive and confidential.  Licensee shall take precautionary measures to protect the security and dissemination of PII as required by law.  Licensee shall report to Soarion Digital’s authorized representative in writing, immediately upon Licensee’s discovery of any use or disclosure of Soarion Digital’s Proprietary Information that is not permitted by this EULA, including, without limitation, those involving agents and subcontractors. Thereafter, Licensee, at Licensee’s sole cost and expense, shall permit and assist Soarion Digital (a) to investigate, and (b) mitigate any harmful effects of such unauthorized use or disclosure.  Licensee shall be responsible for all costs associated with the notification and mitigation of a data breach that has occurred because of the negligence of Licensee.
  1. Procedure:  If a party makes a claim against an Indemnified Party, the Indemnified Party will promptly notify the Licensee in writing no later than sixty (60) days after receipt of such notification of a potential claim.  The Licensee may assume sole control of the defense of such claim and all related settlement negotiations.  The Indemnified Party will provide, at no additional cost to the Indemnified Party, the assistance, information and authority necessary to assist the Licensee in its obligations. Licensee may not settle any such matter without the prior written consent of the Indemnified Party as to any settlement that imposes an obligation on, or requires any admission by, the Indemnified Party. Failure of the Indemnified Party to promptly notify the Licensee will not relieve the Licensee of its obligations except to the limited extent such delay materially prejudices the Licensee.  
  1. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
  1. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOARION SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  1. IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR LICENSE OF THE SOARION SOFTWARE. 
  1. THE FOREGOING IS AN ESSENTIAL PART OF THIS EULA AND FORMS THE BASIS FOR DETERMINING THE PRICES SET FORTH HEREIN.  LICENSEE UNDERSTANDS SOARION DIGITAL IS ABLE TO PROVIDE THE SOARION SOFTWARE AT THE PRICES SET FORTH HEREIN BECAUSE SOARION DIGITAL HAS DISCLAIMED ALL WARRANTIES AND SOARION DIGITAL’S LIABILITY IS LIMITED HEREUNDER.
  1. SOARION DIGITAL CANNOT AND DOES NOT REPRESENT OR GUARANTEE THAT ANY OF THE INFORMATION AVAILABLE THROUGH THE SOARION SOFTWARE IS ACCURATE, RELIABLE, CURRENT, COMPLETE, VALID, STABLE OR APPROPRIATE FOR ANY LICENSEE’S NEEDS. LICENSEE EXPRESSLY ACCEPTS RESPONSIBILITY AND ASSUMES ALL LIABILITY FOR ALL ACTIVITIES AND CONTENTS GENERATED BY LICENSEE VIA THE SOARION SOFTWARE. 
  1. THE SOARION SOFTWARE, USE THEREOF, AND/OR ANY COMMUNICATION BY SOARION DIGITAL TO LICENSEE SHALL NOT BE CONSTRUED UNDER ANY CIRCUMSTANCES AS LEGAL, TAX, ACCOUNTING, OR FINANCIAL ADVICE.  
  1. THE LIMITATIONS SET FORTH IN THIS SECTION 11.0 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
  1. EXPORT REGULATION. The Soarion Software and Documentation may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Soarion Software or Documentation to, or make the Soarion Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Soarion Software or Documentation available outside the US.
  1. US GOVERNMENT RIGHTS. The Soarion Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Soarion Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
  1. CONFIDENTIALITY.  Owner may provide to the Recipient from time to time or the Recipient may have access to Owner’s Proprietary Information.  Except as expressly permitted herein, Recipient shall not disclose any Proprietary Information to any third party or use any of the Proprietary Information for any purpose, except as is necessary to perform its obligations or exercise its rights as set forth herein or in the Agreement.  Proprietary Information shall not include any information that:  (i) corresponds in substance to information developed by Recipient without reference to the Proprietary Information or can be demonstrated by Recipient to be in the Recipient’s possession prior to receipt of the same from Owner; (ii) now is or hereafter becomes publicly known through no fault of the Recipient; or (iii) otherwise lawfully becomes available to the Recipient from a third party not known by the Recipient to be under an obligation of confidentiality to Owner.  Upon termination of the Agreement, all Proprietary Information and other information shall be returned or destroyed promptly upon request, no copies thereof shall be retained by Recipient, and Recipient shall not thereafter utilize such information in any respect or for any purpose whatsoever.
  1. INTELLECTUAL PROPERTY; REMEDIES.  
  1. The Soarion Software, any Documentation, Enhancements, or Derivatives thereof, and all Intellectual Property and Proprietary Information relating to the foregoing (collectively, “Soarion Digital IP”) are and shall remain the sole and exclusive property of Soarion Digital.  Licensee shall have no rights to the Soarion Digital IP, except as expressly granted in this EULA. Licensee shall not at any time during the Term and any time thereafter do or permit to be done any act or thing which impairs or may impair the rights of Soarion Digital with respect to Soarion Digital IP. Licensee will never represent that it has any ownership in any Soarion Digital IP.  Licensee expressly agrees that all of the use and goodwill of Soarion Digital IP shall inure to the sole benefit of Soarion Digital.   
  1. Soarion Digital shall not be responsible or liable to Licensee for storage of data or files that cannot be recovered due to corrupt data, fires, mechanical or equipment failure, damage or destruction, virus, malware, security breach, or any other disaster, casualty, or event not in control of Soarion Digital. Licensee shall be primarily responsible to back-up and store all files and data that Licensee deems important to insure the integrity and security of Licensee’s data.
  1. Licensee, without further compensation, does hereby assign to Soarion Digital, Licensee’s entire right, title and interest in and to the Soarion Digital IP, and/or any part thereof, if any.  Licensee further agrees, upon Soarion Digital’s request and for no additional compensation, to execute any and all patent applications, affidavits, assignments and/or other documents reasonably deemed necessary or desirable by Soarion Digital to acknowledge, confirm, perfect, secure or support the conveyance of title in and to any of the Soarion Digital IP to Soarion Digital, or to record the same in any country of the world, or to apply for or secure patent protection in any country of the world, or to claim priority therefor, or to enforce the rights therein in any court or other proceeding, whether during the Term or at any time thereafter, and to testify or otherwise assist and cooperate with Soarion Digital and its agents and attorneys in connection therewith, at Soarion Digital’s expense.
  1. Licensee shall not execute or file any patent application, copyright application, trademark application, or any claim to any right in or to the Soarion Digital IP or any portion thereof.
  1. Licensee agrees that Licensee shall not (a) copy or otherwise reproduce, nor permit any third party to copy or otherwise reproduce, any of the Soarion Digital IP; (b) grant sub-licenses, leases or other rights in or to the Soarion Digital IP; (c) make any other use of the Soarion Digital IP except as expressly authorized by Soarion Digital in writing; or (d) modify, decompile, reverse engineer, or disassemble the Soarion Digital IP.   
  1. Licensee acknowledges and agrees that, except for Licensee’s license described in this EULA, Licensee has no right, title or interest in the Soarion Digital IP in any form, or in any copies thereof, including all worldwide copyrights, trade secrets, patent rights and any other proprietary information and confidential information rights therein.   
  1. Injunctive Relief:  The parties hereby acknowledge and agree that the extent of damages in the event of a breach of the restrictive covenants contained in this EULA may be difficult or impossible to ascertain and that there may be no adequate remedy at law in the event of any such breach. Consequently, in the event of such breach, the non-breaching party shall be entitled, in addition to any other remedies it may have at law, to seek an injunction or other equitable relief to enforce any or all of the covenants contained in this EULA. The breaching party expressly waives (i) the defense that a remedy in damages will be adequate and (ii) any requirement in an action for specific performance or injunction for the posting of a bond.
  1. Reservation of Remedies:  The rights, powers and remedies that may be given or reserved to the parties by this EULA shall be cumulative and in addition to all other and further remedies provided by law.  This EULA shall not be construed to deprive the parties of any other rights, powers and other remedies otherwise given by law or at equity.  No delay or failure by Soarion Digital in exercising any right or remedy and no partial or single exercise of such right or remedy shall constitute a waiver by Soarion Digital of such right or any other rights in this EULA.  No consent by Soarion Digital to a breach of any express or implied term of this EULA shall constitute a consent to any prior or subsequent breach of the same or any other term.
  1. MISCELLANEOUS.  
  1. Assignment: Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
  1. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  1. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, refer to the Sections of this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any SOW referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
  1. Export Regulations.  Licensee acknowledges that certain Soarion Software licensed by Soarion Digital hereunder and any documentation and other technology of Soarion Digital may be subject to application export control and sanction laws, regulations, and orders.  Licensee certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State.  Licensee hereby agrees to defend, indemnify and hold Soarion Digital harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
  1. FCPA; Anti-Bribery.  In carrying out its responsibilities hereunder and under any Agreement, Licensee shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention.  Licensee understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office.  Licensee represents and warrants that, in the performance of this Agreement and in connection with its license of Soarion Software, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and Licensee will advise Soarion Digital of any change in such representation; (ii) Licensee and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) Licensee will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) Licensee agrees to indemnify, defend, and hold Soarion Digital harmless for damages and expenses resulting from a violation of the foregoing by Licensee or its representatives. 
  1. OFAC.  Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), Licensee may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time.  Licensee certifies, represents and warrants to Soarion Digital that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Licensee hereby agrees to defend, indemnify and hold Soarion Digital harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
  1. Relationship among Soarion Digital, Licensee, and Third Parties:  Neither party nor any other agents or employees, officers, directors, managers,  shareholders or members of such party shall be deemed a representative or agent of the other, nor shall either party hold itself out as a representative or agent of the other beyond the scope of the Agreement and/or these Terms and Conditions, and, neither party shall have any right or authority to conduct any business in the name of, or for the account of or on behalf of the other party.  The parties hereto agree and understand that, solely with respect to the Agreement and/or these Terms and Conditions, Soarion Digital will be and act as an independent contractor of Licensee, Licensee and Soarion Digital are separate entities and that there is no master/servant, partnership, joint venture, principal/agent, or employer/employee relationship between the parties.
  1. Severability:  Should any part, portion, or provision of this EULA be held invalid, illegal, void or unenforceable, the remainder of this EULA or the application of such provision shall not be affected thereby and each provision of this EULA shall be valid and enforced to the fullest extent permitted by law.
  1. Choice of Law and Venue:  This EULA shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts made and wholly performed in such state without regard to choice or conflicts of law principles.  This EULA shall be deemed to have been entered into at Cleveland, Ohio, U.S.A., regardless of the place or places of signing by the parties hereto or the order of their signing.  Licensee hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Ohio State Court or Federal Court sitting in Cuyahoga County, Ohio, in any action or proceeding arising out of or relating to this EULA.  Licensee agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 
  1. Non-exclusive Dealing:  This EULA is non-exclusive. Nothing shall prevent Soarion Digital from entering into similar arrangements with, or otherwise providing Soarion Software to, any other person or entity.
  1. No Waiver:  No waiver of any of the provisions of these Terms and Conditions and/or the Agreement shall be binding unless made in writing and signed by the waiving party. The failure of either party to insist on the strict enforcement of any provision of these Terms and Conditions and/or the Agreement shall not be deemed to constitute a waiver of the provision, and all terms and conditions herein and/or therein shall remain in full force and effect.
  1. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.