LICENSEE TERMS AND CONDITIONS

These Licensee Terms and Conditions (“Agreement”) are entered into as of the date you accepted this Agreement or as of the effective date listed on any Order Form that references this Agreement (“Effective Date”), by and between Truewind Technologies, Inc., a Delaware corporation (“Truewind”), and the Licensee (as defined below). This Agreement sets forth the terms pursuant to which Licensee will be permitted to purchase, subscribe to, access, or use certain of Truewind’s products and services.

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, SIGNING AN ORDER FORM (AS DEFINED BELOW) REFERENCING THIS AGREEMENT, USING THE PLATFORM (AS DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“LICENSEE”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM.

1.          Orders. This Agreement sets forth the terms and conditions on which Truewind may make available to Licensee the Platform (as defined below), in whole or in part, as expressly identified (a) in an order form signed by Licensee and Truewind that references this Agreement, (b) by Truewind during the sign-up process on the Platform, or (c) in any order details sent electronically to Licensee (each, an “Order Form”). Each Order Form is subject to the terms of, and is deemed incorporated into, this Agreement. Not all of the features or functionality of the Platform may be available at Licensee’s subscription level irrespective of whether such feature or functionality and access to such features or functionality may require payment of additional fees or the purchase of additional licenses or access rights.

2.          Access To Technology Platform; Services

2.1        Usage Rights.  Subject to the terms and conditions of the Agreement, including any restrictions in the Order Form, Truewind grants to Licensee during the Term a revocable, non-exclusive, non-transferable, non-sublicenseable right to access and use Truewind’s technology and software platform currently called Truewind for month-end close reconciliation and collaboration (the “Platform”), in all instances solely for its internal business purposes.

2.2        Services.  Subject to the terms and conditions of the Agreement, Truewind shall provide Licensee with the support services (“Services”) described in the Order Form.

2.3        Restrictions.  Licensee agrees that it shall not, and shall not permit any third party, to (a) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Platform to any third party; (b) modify, adapt, alter, translate, or create derivative works from the Platform, nor use it to create a substitute product; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Platform, or use the Platform to create a competitive product; (d) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Platform; or (f) otherwise use or copy the Platform except as expressly permitted under Section 2.1.  Licensee shall notify Truewind of any unauthorized use or disclosure of the Platform.

2.4        Reservation of Rights.  Licensee acknowledges that, as between the parties, Truewind owns the Platform, together with its structure, organization, algorithms, code, and derivative works thereof or intellectual property rights associated therein (“Truewind IP”).  All rights in and to the Truewind IP not expressly granted to Licensee in this Agreement are reserved by Truewind and its suppliers.

2.5        Accounts. To use the Platform, Licensee must register for and maintain an account with Truewind. When registering, Licensee must provide accurate and complete information and promptly update this information.  Licensee is responsible for all activities that occur through Licensee’s or its authorized user’s accounts.

3.          Fees and Payment.

3.1        Trials. Truewind may, in its sole discretion, offer trials or other promotional offers for certain features of the Platform. The trial will be for the period specified in the Order Form (“Trial Period”). Upon expiration of the Trial Period, a paid subscription will automatically begin per the terms of the applicable Order Form.

3.2        Platform Fees.  Certain features of the Platform require payment of fees. Licensee will pay to Truewind the fees set forth in the Order Form in accordance with the payment schedule set forth therein (“Fees”).  All Fees are non-refundable.

3.3        Payment Terms.  The Fees will be paid via the payment method indicated in the Order Form.  All payments must be made in U.S. dollars.  Truewind may suspend or terminate access to the Platform for any account for which any amount is due but unpaid. Any amounts not paid when due will accrue interest at one and one-half percent (1½ %) per month or the maximum rate permitted by applicable law; whichever is less, from the due date until paid. If Licensee pays any Fees with a credit card, Truewind may seek pre-authorization of Licensee’s credit card account prior to Licensee’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Licensee’s purchase. Licensee is responsible for updating the payment information should the required payment method change.

3.4        Online Subscription. If Licensee purchases a subscription through the Platform (as opposed to a written Order Form between the parties) (“Subscription Service”), Licensee will be automatically billed recurring periodic charges per the terms of the Order Form. The Subscription Service will continue unless and until Licensee or Truewind cancels per the terms of this Agreement. Licensee must cancel the subscription before it renews in order to avoid charging of the next periodic Fees. Licensee may cancel the Subscription Service by emailing Truewind at support@trytruewind.com.  Termination will not affect amounts due and payable at the time of termination, including amounts owed in arrears. LICENSEE’S CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD. Truewind may change the fees for any feature of the Subscription Service, including additional fees or charges, if Truewind gives the Licensee advance notice of changes before they apply (i.e., in future or renewal terms).

3.5        Taxes.  The Fees exclude, and Licensee will make all payments of the Fees to Truewind free and clear of, all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges.  Licensee will be responsible for, and will indemnify and hold harmless Truewind from, payment of all such taxes (other than taxes based on Truewind’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery or license of the Platform to Licensee.

4.          Warranty Disclaimer. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS, WHETHER STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE WITH RESPECT TO THE PLATFORM OR SERVICES.  TRUEWIND SPECIFICALLY DISCLAIMS ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TRUEWIND MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR SERVICES OR THE RESULTS OF THE USE OF THEREOF WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE ACCURATE, COMPLETE, OR ERROR FREE.

5.          Indemnification.

5.1        Truewind Indemnity.  Truewind will defend at its own expense any third party action against Licensee based upon a claim that the Platform or Services infringe or misappropriate any patents, copyrights or trade secrets of a third party, and Truewind will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on Licensee (a) notifying Truewind promptly in writing of such action, (b) giving Truewind sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Truewind’s request and expense, assisting in such defense.  If the Platform becomes, or in Truewind’s opinion is likely to become, the subject of an infringement claim, Truewind may, at its option and expense (i) procure for Licensee the right to continue using the Platform, (ii) replace or modify the Platform so that it becomes non-infringing, or (iii) accept return of the Platform, terminate the Agreement, in whole or in part, as appropriate, upon written notice to Licensee and provide a pro-rated refund to Licensee for any pre-paid and unused Fees for the Platform. Notwithstanding the foregoing, Truewind will have no obligation under this Section 5 or otherwise with respect to any infringement claim based upon (w) any use of the Platform not in accordance with the Agreement, (x) any use of the Platform in combination with products, equipment, software, or data not supplied by Truewind, (y) any use of any release of the Platform other than the most current release made available to Licensee, or (z) any modification of the Platform by any person other than Truewind or its authorized agents or subcontractors, and Licensee shall indemnify Truewind for any such occurrences.  THIS SECTION 5 STATES TRUEWIND’s ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.

6.          Limitation of Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THE AGREEMENT HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO TRUEWIND UNDER THE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.

7.          Confidentiality & Data.

7.1        Confidential Information.  Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”).  Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party.  The Truewind IP, including without limitation any routines, subroutines, directories, tools, programs, or any other technology included therein, shall be considered Truewind’s Confidential Information.

7.2        Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

7.3        Exceptions.  The Receiving Party’s obligations under Section 7.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

7.4        Return of Confidential Information.  The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party and upon the expiration or termination of the Agreement.  If requested by the Disclosing Party, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 7.4.

7.5        Licensee Data.  The parties acknowledge that Licensee may be providing or processing confidential and proprietary data of Licensee through its use of the Platform (“Licensee Data”).  As between the parties, Licensee Data is owned by Licensee and deemed Licensee’s Confidential Information. Notwithstanding anything to the contrary, Truewind may collect, use, and analyze Usage Data, and Truewind will be free during and after the term hereof to use and analyze such Usage Data to improve and enhance the Platform and for other development, diagnostic and corrective purposes for those or other offerings of Truewind.  As used above, “Usage Data” means aggregated and anonymized data related to the performance of the Platform, including processing and response times, activity logs, and other performance related data and usage statistics.  For clarity, Usage Data will not include any personally identifiable information.

7.6        Feedback. If Licensee provides any comments, suggestions, feedback to Truewind concerning the Platform or Services (“Feedback”), Truewind may use it to improve or enhance its products.  Licensee hereby grants Truewind a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction and without any obligation to provide attribution or compensation to Licensee.

8.          Term and Termination.

8.1        Term.  The Agreement will commence on the Effective Date and will continue until terminated in accordance with the terms of this Agreement or the applicable Order Form (“Term”). Subscription Services will automatically renew for additional successive terms unless terminated as specified in Section 3.4.

8.2        Termination for Cause. If either party materially breaches the Agreement, the other party may terminate the Agreement upon thirty (30) days’ written notice, unless the breach is cured within such time. Notwithstanding the foregoing, Truewind shall have the right to immediately terminate the Agreement if Licensee is in breach of Section 2.3 or 7.

8.3        Effects of Termination.  Upon termination or expiration of the Agreement for any reason: (a) any amounts owed to Truewind under the Order Form before such termination or expiration will be immediately due and payable; (b) all licensed rights granted in the Agreement will immediately cease to exist; and (c) Licensee must promptly discontinue all use of the Platform, erase all copies of the Platform from Licensee’s systems.

8.4        Survival.  Sections 2.4, 3, 5, 6, 7, 8.4, and 9 together with any accrued payment obligations, will survive expiration or termination of the Agreement for any reason.

9.          General.

9.1        Publicity.  Truewind may identify Licensee as one of its customers in general promotional literature and disclose to current and prospective clients that Truewind has provided Licensee with a license to the Platform. Licensee hereby grants to Truewind permission to include Licensee’s corporate name and logo, in Truewind’s promotional materials and on Truewind’s website.

9.2        Compliance with Laws.  Licensee will comply with all applicable export and import control laws and regulations in its use of the Platform and, in particular, Licensee will not export or re-export the Platform without all required government licenses and Licensee agrees to comply with the export laws, restrictions, national security controls and regulations of the all applicable foreign agencies or authorities.

9.3        Assignment.  Licensee may not assign or transfer, by operation of law, change of control, or otherwise, the Agreement or any of its rights or obligations under the Agreement (including its licenses with respect to the Platform) to any third party without Truewind’s prior written consent; provided, however, that Licensee may assign the Agreement to a successor to all or substantially all of its or assets without Truewind’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.

9.4        Notices.  All notices, consents, and approvals under the Agreement must be delivered in writing by courier, by electronic facsimile (fax), electronic mail or by certified or registered mail, (postage prepaid and return receipt requested) to Truewind at the address set forth in this Agreement or to Licensee at the address set forth in any written Order Form or as provided by Licensee during the purchase process on the Platform, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.  Either party may change its address by giving notice of the new address to the other party.

9.5        Governing Law and Venue.  The Agreement will be governed by and interpreted in accordance with the laws of the State of California, without reference to its choice of laws rules.  Any action or proceeding arising from or relating to the Agreement shall be brought in a federal or state court in California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

9.6        Remedies.  Except as provided in Sections 4 and 5, the parties’ rights and remedies under the Agreement are cumulative.  Licensee acknowledges that the Platform contains valuable trade secrets and proprietary information of Truewind, that any actual or threatened breach of Section 2 or Section 7 will constitute immediate, irreparable harm to Truewind for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, Licensee agrees to waive any bond that would otherwise be required.

9.7        Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

9.8        Severability.  If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

9.9        Entire Agreement.  The Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  The Agreement shall not be modified except by a subsequently dated written amendment signed by duly authorized representatives of Truewind and Licensee. In the event of inconsistencies or conflicts between this Agreement and the Order Form, the terms of this Agreement will control unless the Order Form expressly states that it supersedes a specifically-identified provision of this Agreement.