LayeredIT •
End-User License
Agreement

LAYERED IT SUBSCRIPTION END USER LICENSE AGREEMENT

Subscription End User License Agreement

This Layered IT Subscription End User License Agreement (“Agreement”) is between the person, legal entity orentities, or persons on behalf of a legal entity or entities that accept(s) this Agreement by physical or electronicsignature, or by a click-through acceptance (“Licensee”), and Layered ECM dba Layered IT (“Layered IT”). ThisAgreement is   effective as of the date on which this Agreement is accepted through an accompanying Order Form(“Effective Date”).

This Agreement applies to all software licensed from Layered IT, including any pre-release or beta versions of thesoftware (“Software”); any support services or professional services performed by Layered IT; any hardware sold,leased, or loaned to Licensee by Layered IT (“Hardware”); any demonstration or trial versions of the Software or Hardware; and the Documentation (collectively, the “Services”).If Licensee is bound to more than one agreement withLayered IT with respect to the Services, and if those agreements terms vary, then the order of precedence of thoseagreements is as follows: an agreement executed by Layered IT and Licensee that expressly supersedes all other agreements, an electronic version of an agreement accepted pursuant to an Order Form or formal written quote, andany other electronic agreement provided with the Software.

  1. Definitions. The terms in this section shall have the meanings described below, and other terms may bedefined within the context of this Agreement.“Confidential Information” means information that is designated in writing as “confidential” at the time of disclosure, or which constitutes the trade secrets of a party under the governing law of this Agreement. Confidential Information also includes the pricing structure for the Services provided to Licensee, and any other proprietary information owned by Layered IT and which is provided or disclosed to Licensee at any time. Notwithstanding the foregoing, Confidential Information does not include information that the receiving party can demonstrate: (a) is in the public domain or is generally publicly known through no improper action by the receiving party; (b) was rightfully in the receiving party’s possession or known by it prior to receipt from the disclosing party; (c) is rightfully disclosedwithout restriction to the receiving party by a third party without violation of any confidentiality covenant bysuch third party; or (d) is independently developed by the receiving party without use of the ConfidentialInformation of the disclosing party.
    • Customer Data” means any and all of Licensee’s and its User’s data, information, and materials thatare uploaded by or on behalf of Licensee or that are accessed by Layered IT in connection withLicensee’s or its User’s use of the Software or Hardware.
    • Documentation” means any documentation distributed by Layered IT or its authorized resellers pertaining to the Services, including without limitation any accompanying or online user guides,technical information, user documentation, and technical data sheets in effect on the Effective Date, in each case, as may be updated or amended by or on behalf of Layered IT from time to time.Documentation also includes any applicable Order Form and SOW.
    • Fees” means the subscription and other fees set forth in this Agreement or any Order Form or SOWfor the purchase of Services.
    • Licensee’s Customers” has the meaning set forth in Section 2.
    • Order Form” means any Layered IT form detailing an order which is incorporated into and becomesa part of this Depending on the Services ordered, the Order Form may be completed online or may take the form of a written order form, invoice, quote, billing statement, or SOW. In the event ofany discrepancy between this Agreement and an Order Form, this Agreement shall govern.
    • SOW” means a Layered IT-originated, mutually executed statement of work, work order, or other similar document that references this Agreement and which, upon its mutual execution by Licensor and Licensee, will be automatically incorporated by reference into, and governed under, this Agreement.
    • Term” has the meaning set forth in Section 11.1.
    • Third-Party Materials” means software, interfaces, and firmware, licensed by Layered IT from thirdparties and which are incorporated into and/or distributed as part of the Services provided by Layered IT.
    • User” means an individual who is authorized by Licensee to use the Software or Hardware within itsorganization or, if applicable, within a multi- tenant or managed services environment, and to whomLicensee has supplied a user identification and Users may include, for example, Licensee’semployees, consultants and contractors.
  2. Grant of Limited License (the “License”). Subject to the terms of this Agreement, including any restrictionsset forth in the applicable Order Form and the payment of Fees in accordance with the applicable Order Form,Layered IT grants Licensee during the Term, a non- sublicensable, nonexclusive, revocable, nontransferableright to use the Software provided by Layered IT or the Service as made available by Layered IT, for the number of authorized Users as specified on the applicable Order Form. Such use shall be limited to authorized Users, shall not exceed the number of purchased Users, and shall be used for Licensee’s internal business purposes only. If the Software is authorized to be used in a multi-tenant environment or as part of a managed servicessolution (a “Managed Service”), then Licensee hereby agrees that the Software will be used solely in furtherance of Licensee’s provision of the Managed Service and not for any other purpose by any unauthorized third party and, if required by Layered IT from time to time in Layered IT’s sole discretion, each User shall accept the terms of an end user license agreement for the Software.

 

Except for one copy made solely for back-up or test purposes with respect to on-premises licenses, Licenseemay deploy or possess only the number of copies of the Software as expressly specified on the Order Form, and only in accordance with the applicable Documentation; otherwise, Licensee shall not copy or distribute theSoftware, the Documentation or any other written materials accompanying the Software. Licensee will be responsible for ensuring that any and all use of the Software by its Users and customers is permitted by thisAgreement. The Software licensed or the Services provided hereunder is licensed or provided, as applicable,solely for use in connection with Licensee’s internal business requirements and may not be used for any other purpose, and any and all such uses shall be subject to all of the terms and conditions of this Agreementapplicable to Licensee.

  1. Restrictions. Licensee will not remove, alter, or obscure proprietary notices that appear on or in theSoftware and Documentation, and will reproduce them on or in any Licensee will not (and will not allowany User or other third party) to: (i) decompile, disassemble, reverse compile, or reverse engineer or attempt todiscover any source code or underlying ideas or algorithms of any Software (except to the extent that applicablelaw prohibits such restrictions), (ii) modify, or create derivative works based on the Software, (iii) provide, sell, give, rent, lease, lend, loan, distribute, transfer, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party, (iv) use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof, in violation of any U.S. or anyother applicable export control laws or regulations, (v) develop keys or license codes other than license keys provided by Layered IT for the Software or attempt to defeat or circumvent any such keys or any other access restrictions included in the Software or determine how any such keys are developed, or (vi) use or copy theSoftware except as expressly permitted in Section 2. All the limitations and restrictions on Software in thisAgreement also apply to Documentation.
  2. Usage Limits. Licensee’s usage of the Software is subject to usage limits, including, for example, thequantities specified in an Order Unless otherwise specified, (a) a quantity in an Order Form may refer to sets, users, devices, storage or other metrics as applicable to the Software or Service, and such usage of theSoftware or Service may not exceed the applicable usage metric, (b) a User’s password may not be shared with any other User or person, or used simultaneously with multiple instances of the Software, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires use of the Software orService. If Licensee exceeds a contractual usage limit, Licensee will execute an Order Form for additional quantities of the applicable Software promptly upon Layered IT’s request, and/or pay any invoice for excessusage in accordance with the payment terms and pricing set forth in this Agreement and any Order Form.
  3. Responsibilities. Licensee will (a) be responsible for its Users’ compliance with this Agreement, (b) beresponsible for the accuracy, quality and legality of Customer Data and the means by which Licensee acquires and uses any Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Customer Data, and notify Layered IT promptly of any such unauthorized access oruse, (d) use the Software and/or Hardware only in accordance with its Documentation and applicable laws andgovernment regulations, and (e) comply with terms of service of Layered IT as published from time to time onLayered IT’s website, which are hereby incorporated into this Agreement by reference.
  4. Third-Party Materials. Some Third-Party Materials may be subject to other terms and conditions, whichmay be found in a “Read Me” or “About” or similar file in the Software/Hardware or Software/Hardware Documentation. If Licensee does not agree to such terms, Licensee agrees not to use the Software and/orHardware, or any Third Party Materials.
  5. Customer Data.Licensee hereby grants to Layered IT a nonexclusive, worldwide, royalty-free, fully-paid,transferable license to host, cache, record, copy, view, and display Customer Data for the purpose of providingthe Services to Licensee: (a) internal use by Layered IT and its affiliates; (b) any purpose related to the billing,activation, provision, maintenance, upgrades, updates, deactivation and/or use of the Services; (c) anypurposes permitted by any applicable Except as set forth in this Agreement, Licensee retains all right, title,and interest in and to Customer Data. Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use Customer Data, and Licensee agrees that, except for Layered IT’s gross negligence or willful misconduct, Layered IT shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss or failure to secure or store Customer Data. Licensee acknowledges and agrees that it bears sole responsibility for adequately controlling, processing, storing and backing up its Customer Data. Layered IT reserves the right, butnot the obligation, to refuse to post or to remove any information or materials, in whole or in part, that Layered IT believes to be unacceptable, undesirable, or in violation of this Agreement or the rights of third parties. Licensee represents, warrants, and covenant that: (a) it is the owner or authorized licensee of Customer Data and has the right to grant the rights set forth herein; (b) it has obtained all consents necessary under applicablelaw to disclose Customer Data to Layered IT; and (c) it will not publish, post, upload, record, or otherwisedistribute or transmit any data or other material that: (i) infringes or would infringe any copyright, patent,trademark, trade secret or other proprietary right of any party, or any rights of publicity or privacy of any party;(ii) violates any law, statute, ordinance, or regulation; (iii) is inappropriate, profane, defamatory, libelous,obscene, indecent, threatening, harassing, or otherwise unlawful; (iv) is harmful to minors or otherwise pornographic; (v) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Personal Information, or property of another; (vi) is materially false, misleading, or inaccurate; and/or (vii) contains information for which Licensee does not have the right to permitLayered IT to access and process any Customer Data.
  6. Support and While the license for Software remains effective and the applicable fees havebeen paid in accordance with this Agreement, Layered IT will use commercially reasonable efforts to provide theLicensee with the support and maintenance services for the Software or the Service. Layered IT may elect tochange the fees for and the terms of its support services or terminate support services for the Software or theService.
  7. Proprietary Rights. All Services, except purchased Hardware, are provided on a subscription basis only,and are not sold to Layered IT, suppliers and licensors own and retain all right, title and interest in and to: (a) the Software and Documentation (including all copies, components thereof and all upgrades, modifications, enhancements and derivative works thereof); and, (b) all copyrights, patent rights, trade secret rights, trademark and other intellectual property and other proprietary rights embodied in or relating to the Software or Documentation. Licensee acknowledges and agrees that it shall have no rights with respect to any of the foregoing other than the limited rights expressly set forth in this Agreement. Layered IT expressly reserves all rights in the Services not specifically granted to Licensee. It is acknowledged that all right, title and interest in and to the Services will remain vested exclusively with Layered IT.
  8. Fees and Payment.
    • Payment Terms. Licensee shall pay to Layered IT the Fees due for the Services in accordance with terms of this Agreement and any applicable Order Form. Except as otherwise specified herein or in an Order Form, (a) fees are based on Services purchased and not actual usage, (b) all payment obligationsunder this Agreement are non-cancelable and non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term. Any payments more than thirty (30) days overdue will bear a late payment fee of 2.0% per month, or, if lower, the maximum rate allowed by law. All amounts payable by Licensee are exclusive of any taxes, fees, duties, shipping, or other charges, however designated, now or hereafter levied. Licensee will be responsible for all taxes (other than Layered ITincome taxes), fees, duties, shipping or other such charges under this Licensee agrees to beresponsible for payment for all activity by third parties who access or use the Services throughLicensee’s account regardless of whether such activity was authorized by Licensee. Licensee isresponsible for all incidental charges related to the Services such as charges for Internet access, thirdparty software licenses, text messaging, or other data transmission.
    • Payment method; Credit Card Authorization. Until all amounts due have been paid in full, Licensee agrees to keep its payment information current at all times and authorizes Layered IT to charge such payment method (including but not limited to credit card, debit card, wire transfer and/or automated clearing house) provided by Licensee, all amounts due under this Agreement, including without limitation, usage beyond the amount specified in the applicable Order All prices are given andmust be paid in the currency listed on the applicable Order Form.
    • Invoicin Layered IT may invoice Licensee electronically or by paper. Licensee must notify Layered IT within forty-five (45) days of the receipt of the invoice of any billing errors thereon. If Licensee does not notify Layered IT within this time, Layered IT will not be required to correct the error and/or makeadjustments to Licensee’s account and Licensee hereby waives any claim, allegation or contention withrespect to such invoice.
  9. Term; Termination; Suspension.
    • Term. Licensee will be bound for the entire Term of this Agreement. “Term” is defined as the period of time beginning on the Effective Date and ending on the date set forth in the Order Form, or, if later, the expiration date of any SOW. If the Order Form does not contain a termination date, the Term shall be deemed to end on the later of the three-year anniversary of the Effective Date and the expiration date of any SOW. Except as otherwise specified in an Order Form, at the end of any Term, subscriptions will automatically renew for additional Terms equal to the greater of the expiring Termlength or three (3) years, unless either party gives the other party notice of non- renewal at least 30 days and no more than 60 days before the end of the relevant Term. Except as otherwise specified in an Order Form, pricing during any automatic renewal Term will be the same as that during the immediatelypreceding Term plus an increase not to exceed five percent (5%) plus any increase in the Consumer Price Index published by the U.S. Bureau of Labor Statistics during the immediately prior year, inLayered IT’s sole discretion.
    • Termination; Suspension. This Agreement and all rights and licenses granted hereunder willautomatically terminate upon the earlier of (a) the date that is thirty (30) days following a party’s receipt of written notice of any material breach delivered by either party to the other party provided that anysuch breach remains uncured at the end of such notice period or immediately in the case of any breachof Sections 2 or 3 by Licensee; or (b) the end of a Term that is not renewed. Furthermore, and without derogating from any rights or remedies of Layered IT, Layered IT shall be entitled to suspend anyService should Licensee breach any term of this Agreement, including without limitation failing to pay any amounts due in a timely manner, or if continued provision of Services poses a risk to Layered IT inits sole Upon termination of this Agreement, or if the license ceases to be effective, Licenseeshall immediately cease all use of all Software, Hardware and Documentation and return or (upon Layered IT’s request) destroy all copies of all Software, leased Hardware, and Documentation, and all portions thereof and so certify in writing to Layered IT and immediately pay all amounts due to LayeredIT hereunder. Except as otherwise expressly provided herein, the terms of Sections 2, 11, 13, 15 and 16 shall survive any termination or non-renewal of this Agreement. Termination is not an exclusive remedy and all other remedies available under applicable law or in equity will be available to Layered ITwhether or not termination occurs.
  10. Bothpartiesagree todefend, indemnify,andholdharmlessthe other,its affiliates andrespective officers,employees, consultants, shareholders and representative from and against any and all claims, liabilities, damages, and/or costs (including attorneys’ and expert witness fees, costs and otherexpenses) arising out of or related to any actual or alleged violation of this Agreement. Layered IT will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply withrespect to Software or portions or components thereof (a) not supplied by Layered IT, (b) made in whole or inpart in accordance to Licensee’s specifications, (c) that are modified after delivery by Layered IT, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Licensee continues allegedly infringing activity after being notified thereof or after being informed ofmodifications that would have avoided the alleged infringement, or (f) where Licensee’s use of the Software isnot strictly in accordance with this Agreement or with the Documentation.
  11. Limited Warranty and Disclaimer. Layered IT warrants to Licensee for a period of thirty (30) days fromLicensee’s first use of the Software or Hardware (the “Warranty Period”) that the Software and/or Hardwarewill operate substantially pursuant to the Documentation for the Software and/or Hardware. This warranty covers only problems reported to Layered IT in writing during the Warranty Period, and which are capableof being observed or reproduced by Layered SOFTWARE, HARDWARE OR ANY PART THEREOF WHICHHAS BEEN SUBJECT TO ABUSE, MISUSE, ACCIDENT, ALTERATION, MODIFICATION, NEGLECT, ORUNAUTHORIZED REPAIR OR INSTALLATION IS NOT COVERED BY THIS WARRANTY. ANY LIABILITYOF LAYERED IT UNDER THIS WARRANTY WILL BE LIMITED EXCLUSIVELY TO REPAIR ORREPLACEMENT OF THE SOFTWARE OR HARDWARE OR, IF REPAIR OR REPLACEMENT ISINADEQUATE AS A REMEDY OR, AT LAYERED IT’S DETERMINATION, IMPRACTICAL, TO REFUND THEFEE PAID FOR SUCH SOFTWARE OR HARDWARE. EXCEPT FOR THE FOREGOING, ALL SOFTWAREAND HARDWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, TITLE, OR NONINFRINGEMENT. FURTHER, LAYERED IT DOES NOT WARRANT RESULTSOF USE, THAT THE SOFTWARE OR HARDWARE IS BUG FREE OR THAT THE SOFTWARE ORHARDWARE WILL PROVIDE ANY PROTECTION AGAINST VIRUSES OR ANY NETWORK INTRUSION ORSECURITY BREACH, OR THAT THE USE OF SOFTWARE OR HARDWARE WILL BE UNINTERRUPTEDOR ERROR FREE. THE SOFTWARE AND/OR HARDWARE ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN LIFE-DEPENDENT OR HAZARDOUSENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL,DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE OR SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL ORENVIRONMENTAL DAMAGE. TO THE EXTENT LICENSEE USES THE SOFTWARE OR HARDWARE INSUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK THEREFOR.
  12. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE,AND EXCEPT FOR BODILY INJURY CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY LAYERED IT’S EMPLOYEES, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, LAYERED IT AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE OR OBLIGATED WITHRESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION INDEMNIFICATION OBLIGATIONS) OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OROTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT BY LICENSEE FOR THE SERVICES PURCHASED HEREUNDER DURING THE SIXMONTH PERIOD PRIOR TO THE CAUSE OF ACTION, (II) FOR ANY COST OF PROCUREMENT OFSUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS, OR (III) FOR ANY INCIDENTAL,INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESSINTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SERVICES PROVIDED BY LAYERED, WHETHER ALLEGED AS ABREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY,EVEN IF LAYERED IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). YOUACKNOWLEDGE AND AGREE THAT LAYERED IT WOULD NOT ENTER INTO THIS AGREEMENT UNLESSIT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH.
    • Licensee Representations. Licensee represents and warrants that: (a) the individual signing or accepting this Agreement has all necessary corporate or other authority to bind the entity that it purports to make party hereto, and (b) Licensee has all necessary corporate or other authority orlicenses to perform its obligations hereunder.
    • Confidentiali Each party agrees to hold the other party’s Confidential Information in confidence and not use it for any purpose other than the purposes permitted under this Agreement. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care. Theterms of this Agreement constitute Confidential Information. Confidential Information of the other party may only be disclosed to those affiliates, employees, contractors and advisors of Company or of Layered IT, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions at least as restrictive as those contained in this Agreement; provided, that nothing shall prevent or prohibit a party from using or disclosing Confidential Information as may be required by law, rule, regulation or legal process. Confidential Information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information. Layered IT may identify Licensee as a customer when referring to lists of customers. Furthermore, Layered IT may automatically extract and use Licensee’s data and information internally for the limited use of itsresearch and analysis as may be necessary to enhance and improve the services it provides to itscustomers, provided always that any such retained data or information of Licensee shall be for internaluse only and shall be used in a de- identified manner only.
    • Monitoring; Auditin Licensee understands that the Software is programmed to track the number of deployed copies of the Software, authorized devices, users and other usage related data, and Licensee consents to such operations and shall not engage in any activity designed to circumvent or obstruct, or which has the effect of circumventing or obstructing, the Software’s tracking capabilities. Licenseegrants to Layered IT the right to monitor usage by all of its users and to audit its books, records and accounts, at Layered IT’s expense, during Licensee’s normal business hours to verify compliance with this Agreement, and Licensee agrees to make available to Layered IT or its representatives any recordspertaining to this Agreement. If any audit reveals that any additional amounts are owed in excess of fivepercent (5%) of the total Fees paid during the audited time period, then such owed amounts will be paid immediately and the cost of such audit shall be reimbursed by Licensee. Furthermore, in the event thatLicensee uses any Software other than as licensed under this Agreement (or under another agreement executed by the parties), in addition to any other remedies available to Layered IT, Licensee agrees to pay Layered IT the then current subscription Fees and any related Service fees for such unauthorizeduse.
    • Assignment. Neither this Agreement nor the rights and licenses granted hereunder are assignable ortransferable by Licensee without the prior written consent of Layered IT; any attempt to do so shall be null and void. Layered IT may assign this Agreement in whole or in part.
    • Notices and Electronic Communications. Layered IT may give notice by means of electronic mail toLicensee’s e-mail address on record in Layered IT’s account information, or by written communicationsent by first class mail or pre-paid post to Licensee’s address on record in Layered IT’s account Such notice shall be deemed to have been given 48 hours after delivery by first class mail orpre-paid post or 12 hours after sending by email. Licensee shall give notice to Layered IT (such noticeshall be deemed given when received by Layered IT) by confirmed mail delivery to its office at 1809 SStreet, Suite 101-265, Sacramento, California 95811, Attn: Trent Jones.
    • Compliance With Laws. Licensee shall abide by all applicable local, state, national and foreign laws, rules, treaties and regulations in connection with this Licensee acknowledges that LayeredIT may discontinue provision or performance of the Services or terminate Services following any changes in any relevant applicable law, which in the sole discretion of Layered IT, makes performanceimpossible, impracticable, or illegal. Licensee further acknowledges that the Software and relatedtechnology and technical data (collectively “Controlled Technology”) may be subject to the import and export laws of any country where Controlled Technology is imported or re-exported, including U.S Export Administration Regulations. Licensee agrees not to export, re-export, import or provide anyControlled Technology to any prohibited country (such as embargoed countries), entity, or person (suchas designated nationals) for which a license or other governmental approval is required or is otherwiseprohibited. All Controlled Technology is prohibited for export or re-export to prohibited countries aslisted at: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx or to anycountry subject to similar trade sanctions. Licensee further agrees that it will not use, export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles,drones or space launch vehicles capable of delivering such weapons.
    • Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Californiaand controlling United States federal law, without regard to the choice or conflicts of law provisions ofany jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be resolved through binding arbitration. The arbitration shall be administered by the American Arbitration Any claim by either party arising out of or related to thisAgreement must be brought no later than two (2) years after it has accrued. If Layered IT commencesarbitration in connection with this Agreement, it will be entitled to recover its reasonable attorneys’ fees,costs and other expenses.
    • Remedies. Licensee acknowledges that the Services provided by Layered IT contain valuable trade secrets and proprietary information of Layered IT and are protected by applicable intellectual propertylaws and treaties and by international copyright law and that any actual or threatened breach of the licenses granted herein will (a) constitute infringement or misappropriation of Layered IT’s intellectual property rights and (b) cause immediate, irreparable harm to Layered IT for which monetary damages would be an inadequate remedy and for which injunctive relief is an appropriate remedy, in addition toany other remedy available to Layered IT.
    • Entire Agreement; Severabilit Subject to the other terms and conditions of this Agreement, this Agreement is the entire agreement between Layered IT and Licensee, and supersedes and replaces any previous communications, representations, or agreements, or Licensee’s additional or inconsistentterms, whether oral or written. In the event any provision of this Agreement is held invalid orunenforceable the remainder of the Agreement will remain enforceable and unaffected thereby. ThisAgreement may not be modified nor any rights under it waived, in whole or in part, except in writing,signed by both parties.
    • Force Majeure. Each party’s obligation (other than Licensee’s obligation to pay Fees when due) shallbe suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party.
    • Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of any of its obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance inthe future of any of the other party’s obligations under this Agreement.