Terms and Conditions

MASTER TERMS AND CONDITIONS

Client, as named in that certain Order Form, Proposal for Services, Purchase Order or Statement of Work (the “Master Agreement”) with IIS, Inc., a California corporation (“IIS”), hereby agrees to the following Master Terms and Conditions (these “Terms and Conditions” and, together with the Master Agreement and any subsequent Purchase Orders, Order Form, Proposal for Services, or Statements of Work, this “Agreement”), which are incorporated into and made a part of these Terms and Conditions and govern the provision of Products and Services (as defined below) to Client.

IIS reserves the right to update and change these Terms and Conditions, and it will post a copy of the amended Terms and Conditions on the IIS website at the following address https://instantinfosystems.com/about/privacy-policy/termsandconditions/. Client is encouraged to review the Terms and Conditions periodically. If IIS makes any to the Terms and Conditions, it will notify Client by displaying a prominent . If Client does not agree to, or cannot comply with, these Terms and Conditions as amended, Client is not authorized to use the Services. Client will be deemed to have accepted these Terms and Conditions, as amended, if Client continues to use the Services after any such changes. Any new features that improve or enhance the current Services, including the release of new tools and resources, are subject to these Terms and Conditions.

DEFINITIONS. Whenever used in these Terms and Conditions, the words and phrases listed below shall have the meanings given below, and all defined terms shall include the plural as well as the singular.
- “Activation Date” shall mean the date on which the Client signs the Proposal for Services, Order Form, Purchase Order or Statement of Work concluded between Client and IIS. Billing for all products and/or services specified in the Proposal for Services, Order Form, Purchase Order or Statement of Work concluded between Client and IIS will commence on the Activation Date, regardless of the actual usage or deployment date, unless otherwise stated in writing. By signing the Proposal for Services, Order Form, Purchase Order or Statement of Work concluded between Client and IIS, the Client acknowledges and agrees to the start of the billing period from the Activation Date.

1.2 “Affiliate” of a party means the party, any entity that is directly or indirectly controlling, controlled by or under common control with the party, and the directors, officers, employees, and agents of all of them, when acting in their corporate capacity.

1.3 “Agreement” shall mean the agreement concluded between you and IIS by way of these Terms and Conditions and, when applicable, the Proposal for Services, Order Form, Purchase Order or Statement of Work concluded between Client and IIS.

1.4 “Applicable Laws” shall mean all federal, state and local laws, statutes, ordinances, codes, rules, regulations, orders, licenses, or permits of any governmental entity or other legal authority which are applicable to Client or IIS in such Party’s rights and obligations under these Terms and Conditions.

1.5 “Application” shall mean, when applicable, the application enabling the use of the Services and through which the Client may access its Data and Client’s Account.

1.6 “Collateral damages” has the meaning ascribed to such term in Subsection 8.5 herein.

1.5 “Chronic Service Interruption” means an Interruption (as defined below) which occurs three (3) or more times, within nine (9) consecutive calendar weeks.

1.7 “Confidential Information” means all non-public confidential or proprietary information concerning the business of Client, IIS, or any third-party doing business with either of them that may be obtained from any source by IIS by virtue of its performance under these Terms and Conditions or by Client by virtue of its use of the Products and Services. Such information shall also include the terms of these Terms and Conditions (and negotiations and proposals from one party to the other related directly thereto), network designs and design recommendations, tools and programs, pricing, methods, processes, financial data, software, research, development, strategic plans or related information. All such information disclosed prior to the execution of Client’s Agreement with IIS shall also be considered Confidential Information for purposes of these Terms and Conditions. The network design and configuration of the Products and Services purchased hereunder, shall be deemed Client’s Confidential Information, and shall not be deemed IIS’s Confidential Information. Confidential Information shall not include information that: (a) is already rightfully known by the receiving person at the time it is obtained by such person, free from any obligation to keep such information confidential; (b) is or becomes publicly known through no wrongful act or breach of these Terms and Conditions by the receiving person; (c) is rightfully received by the receiving person from third party without restriction and without breach of these Terms and Conditions.

1.8 “Client” means you, your wholly owned subsidiaries and any related and controlled affiliates. Consumers and more generally any individual or entity acting for purposes other than business or professional purposes are excluded from the definition of Client.

1.9 “Client’s Account” shall mean the account used by the Client for the purpose of accessing and using the Services.

1.10 “Data” shall mean, as the case may be, all faxes, files, emails, documents and other data pertaining to Client and its usage of the Services and stored on IIS’s and/or its subcontractors’ servers.

1.11 “End Users” means Client and end users that use the Services.

1.12 “Equipment” means all items of equipment leased or purchased by Client from IIS and used to enable Client to utilize the Products and Services provided hereunder.

1.13 “IIS” means Instant InfoSystems and those of its Affiliates providing Products and Services to Client hereunder.

1.14 “Intellectual Property Rights” means, collectively, all proprietary rights whether now existing or later created, in any form or format, in any of the following (i) inventions (whether patentable or not), patents, patent applications, improvements, or modifications, (ii) works of authorship (whether copyrightable or not), unregistered and registered copyrights, copyright applications, computer software (including both source and object code), code segments, and any derivative works of the foregoing, (iii) data, databases, algorithms, objects, routines, templates and documentation, (iv) trade secrets and other Confidential Information, including, but not limited to, ideas, processes, formulas, research and development information, specifications, designs, plans, proposals, technical data, and other information with respect to services rendered hereunder, and (v) copies and tangible embodiments of all of the foregoing (in whatever form or medium).

1.15 “Installation Site” means any location for which Client orders products or services as specified in the Master Agreement, and any subsequent Purchase Orders, Order Form, Proposal for Services, or Statements of Work. The Installation Sites may be changed by Client from time to time on reasonable notice pursuant. If Client changes the location of an Installation Site prior to the actual installation, Client will not incur additional charges if notice of the change is received by IIS within ten (10) days of the date the Purchase Order, Master Agreement, Order Form, Proposal for Services, or Statements of Work is submitted to IIS.

1.16 “Interruption” means an event resulting from the failure of the Products and Services which prevents utilization of the Product or Service. Scheduled maintenance downtime is not considered an Interruption. An Interruption begins when IIS is notified or becomes aware of the failure, whichever first occurs. An Interruption continues until the Products and/or Services are repaired or restored.

1.17 “Marketing Practices” means Client’s obligation to (i) refrain from any and all deceptive, disparaging, false, misleading, illegal, or unethical practices or statements that are or might be detrimental to IIS, or the Licensed Software or Services; (ii) not provide or make any representations or warranties inconsistent or in addition to those provided by IIS; (iii) conduct business in a manner that reflects favorably on the reputation of IIS and the Licensed Software and Services.

1.18 “Party” or “Parties” means IIS or Client, either individually or collectively as the context requires.

1.19 “Payment Term” subject to any specific provisions applicable in your jurisdiction, shall mean a period of thirty (30) days, or, if applicable, the payment term set forth in the Proposal for Services.

1.20 “Performance Specifications” means the IT standards provided by IIS in order to use its Products and Services.

1.21 “Privacy Policy” shall mean the then-current privacy policy of IIS, a copy of which can be found at the following address: https://link.edgepilot.com/s/2e85c67b/ZZGc8HfclEaK6jT7rDHz6A?u=https://instantinfosystems.com/about/privacy-policy/.

1.22 “Products and Services” means the equipment, facilities, programming, software, and related services provided by IIS to Client and designated in the Master Agreement, Proposal for Services, Purchase Order, Order Form, or Statements of Work, which collectively constitute a fully managed network of Working Systems.

1.23 “Professional Services” means those services including but not limited to design, consultation, installation, configuration and training set forth in a Master Agreement, Proposal for Services, Purchase Order, Order Form, or Statements of Work.

1.24 “Proposal for Services” shall mean the proposal for services entered into by and between you and IIS or, when applicable, any commercial agreement between you and the Payee, where the scope of Services may be modified from time to time by you by modifying the subscribed Services via your Client’s Account. The IIS Proposal for Services, if applicable, and these Terms and Conditions shall be deemed to form the Agreement between you and IIS.

1.25 “Purchase Order” means a purchase order for additional Products and Services, in form and substance acceptable to IIS in its sole discretion.

1.26 “Services” shall mean, as applicable, the IIS services offered.

1.27 “SLA” when applicable, shall mean IIS then-current service level agreement which sets forth the levels of services to be delivered by IIS to an End User, a copy of which can be found at https://link.edgepilot.com/s/913881f6/7334k0EA8E2TeojAl3w7jA?u=https://instantinfosystems.com/technical-support-guide/

1.28 “Specifications” shall mean the specifications set forth in detail in the Client’s Account, or when applicable in the Master Agreement, Proposal for Services, Purchase Order, purchase.

PRICE

2.1 Client agrees to pay the price indicated for the Services in the applicable Agreement. Unless the Agreement provides otherwise, in recognition of the potential for fluctuations of its costs, IIS reserves the right to at any time change the price for services charged during Client’s initial term. Client has the right to reject the price change by providing IIS written notice of termination prior to the end of the current Term. If Client does not terminate the agreement, the Client accepts the new price by continuing to use the services. Unless the Agreement provides otherwise, all prices are quoted in U.S. dollars and Client must pay all charges or invoices in U.S. dollars. Client agrees to pay for the Services used each month and, to the extent set forth in the Agreement.

2.2 Client must pay all invoices within thirty (30) days of the invoice date. Client must notify IIS of any charge disputed in good faith, with supporting documentation, within sixty (60) days from the invoice date, or Client will be deemed to agree to such charges and no adjustments to charges or invoices will be made. Client shall continue to be responsible for paying the charges by the due date, other than those charges that are being reasonably disputed in good faith. Client will pay interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, with respect to any amounts not paid when due, other than amounts being reasonably disputed in good faith under these Master Terms and Conditions. All invoices are fully earned when due and non-refundable when paid. Client will reimburse IIS for all costs, including reasonable attorneys’ fees, court costs, bank charges and other consequential fees and expenses, if IIS utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any check tendered by Client is returned for insufficient funds, Client will pay, in addition to the invoice amount and any interest due, an NSF fee equal to the greater of $30 or five percent (5%) of the amount of the check. Client will pay, and IIS reserves the right to collect in arrears, all sales, use, excise or other taxes (other than taxes based on IIS’s net income), fees or charges for universal support mechanisms (including without limitation any and all federal or state Universal Service Fund charges) or other charges of any nature whatsoever, now or hereafter imposed or assessed on IIS, by any foreign, federal, state/provincial, county or local government authority upon or with respect to the Services provided. If Client claims exemption from charges, Client must provide IIS with a current, valid exemption certificate from the applicable regulatory authority. In all events, payment of IIS invoices shall not be dependent upon a Client-generated purchase order. If Client desires for an IIS invoice to reference a Client purchase order, Client shall deliver to IIS a written purchase order within ten (10) days of the execution of the corresponding Instrument. As set forth in Section 13.4, this Agreement constitutes the entire agreement between the Parties, and if there is any additional, inconsistent or conflicting terms between the Agreement and a Client’s Purchase Order, Order Form, Proposal for Services, or Statements of Work, the Agreement shall prevail and any additional, inconsistent or conflicting terms contained in the Purchase Order, Order Form, Proposal for Services, or Statements of Work shall be null and void unless expressly agreed to in writing by a duly authorized IIS representative.

Credit Evaluation

If IIS extends credit to Client, Client hereby authorizes IIS, to the extent permitted by applicable law, to request, obtain and exchange credit information regarding Client as needed for credit evaluation purposes.

Client Requirements

Client agrees that it: (i) must follow all rules and requirements pertaining to the Products and/or Services as set forth in these Terms and Conditions; (ii) is solely responsible for the hardware, software and/or network connectivity required by Client to connect to, and utilize, the Products and/or Services except to the extent any such hardware, software and/or connectivity is expressly provided by IIS pursuant to the Agreement signed by IIS; (iii) may not utilize the Products and/or Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third-party or that creates in any third-party a right of action against any person or entity (a “Person”); (iv) may not utilize the Products and/or Services in any manner that violates IIS’s AUP; (v) may not reverse engineer, decompile or attempt to derive the source code of software provided by IIS in connection with the Products and/or Services; and (vi) may not rent, lease or resell the Products and/or Services unless Client is party to a written agreement with IIS that expressly permits such activity.

Term and Termination

This Agreement is effective on the date set forth in the Purchase Order, Order Form, Proposal for Services, or Statements of Work, and will continue for the term set forth in the Purchase Order, Order Form, Proposal for Services, or Statements of Work (“Initial Term”).

At any time when there is no Agreement in effect, Client may terminate the Agreement immediately by giving written notice to IIS. IIS may terminate this Agreement, and/or suspend the provision of Services to Client, in IIS’s sole discretion, immediately upon notice to Client if: (A) Client fails to pay an invoice not reasonably disputed in good faith when due; (B) Client breaches any of its representations, warranties or covenants or Client violates any of its duties or obligations under this Agreement; (C) Client violates IIS’s AUP; (D) Client violates applicable law through or in connection with its utilization of the Services; (E) it is deemed reasonably necessary by IIS to prevent interruption or disruption to IIS’s network, its business or other clients; (F) Client becomes unable to pay its bills as they become due; (G) Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, or; (H) Client becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. IIS shall not be liable to Client or any third-party should IIS exercise its right to discontinue Services, in whole or in part, or terminate the Agreement.

Intellectual Property

6.1 IIS Intellectual Property. As between IIS and Client, IIS owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist: (i) in the Services (including any custom application(s) developed for Client or resulting from a collaboration between IIS and Client), the IIS equipment and the network that may be utilized to provide the Services; (ii) any software or hardware provided by IIS to Client to facilitate Client’s utilization of the Services; (iii) any domain names provided by IIS in connection with the provision of the Services; and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by IIS by reference to the Services, IIS’s network and Client’s usage of the IIS Services (subject, at all times, however, to IIS’ obligation of confidentiality in favor of Client as provided in Section 4 below) (all of the foregoing intellectual property being the “IIS Transactional IP”).

6.2 Client Intellectual Property. As between Client and IIS, Client owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist: (i) in any data or communications transmitted or processed by Client through the Services (the “Client Content”); (ii) in any domain names provided by Client in connection with the utilization of the Services; and (iii) in any data generated solely by Client that identifies Client or any of Client’s employees or any of Client’s vendors, clients or trading partners (all of the foregoing intellectual property being the “Client Transactional IP”).

6.3 Mutual Respect. IIS agrees to assert no claim of ownership over the Client Transactional IP and Client agrees to assert no claim of ownership over the IIS Transactional IP.

Data Security and Confidentiality

7.1 Confidentiality. In connection with the Services, IIS and Client will each have access to confidential or proprietary information of the other party that is subject to reasonable limitations and restrictions that are intended to maintain the secrecy and confidentiality of such information (as applicable, “Confidential Information”). Confidential Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, client lists, financial information, and sales and marketing plans. Without limiting the foregoing, the Agreement and the pricing terms referenced therein shall be considered Confidential Information of IIS. Each Party will not, without the prior written consent of the other Party, use or disclose to any Person any Confidential Information of the other Party disclosed or made available to it, except for use of such Confidential Information as required in connection with the performance of its obligations or use of the Services hereunder. Each party (as applicable, a “Recipient”) will: (i) treat the Confidential Information of the other party (as applicable, a “Discloser”) as secret and confidential; (ii) limit access to the Discloser’s Confidential Information to those of the Recipient’s employees who require it in order to effectuate the purposes of the Agreement; and (iii) not disclose the Discloser’s Confidential Information to any other Person without the prior written consent of the Discloser. Notwithstanding the foregoing, however, the following shall not be considered Confidential Information: (i) any information that the Recipient can demonstrate was within its legitimate possession prior to the time of disclosure by the Discloser; (ii) any information that was in the public domain prior to disclosure by the Discloser; (iii) any information that, after disclosed by the Discloser, comes into the public domain through no fault of the Recipient; (iv) any information that is disclosed to the Recipient without restriction by a third-party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any trade secret that is no longer protected under applicable law.

7.2 Use of Client Information. In connection with the Services, IIS may have access to Client Transactional IP, including Client Confidential Information, and IIS may use such Client Transactional IP and Client Confidential Information to the extent such use is required to provide the Services to maintain the security and integrity of the Services and IIS’s networks, and to facilitate or confirm IIS’s compliance with its legal obligations, provided, however, that IIS may not use the Client Transactional IP or Client Confidential Information for any other purpose. Notwithstanding its obligations of confidentiality in these Master Terms and Conditions, IIS may disclose Client Confidential Information: (1) in response to a subpoena or court order; (2) in response to an administrative order or other directive from a governmental entity having jurisdiction over IIS; (3) in response to a request from a law-enforcement agency; or (4) as otherwise required by applicable law.

7.3 Disclosure Notification Laws. Client must notify IIS of any suspected breach in security or integrity affecting Client’s access to the Services, any suspected breach in security or integrity to the Services or IIS’s networks, or any suspected breach in security or integrity in Client’s Transactional IP. To the extent any applicable law requires Client to notify other persons or any suspected breach in security or data integrity involving the personal or transactional data of such persons which data is contained within the Client Transactional IP (such laws being “Disclosure Notification Laws”), Client shall be wholly responsible for its compliance with such Disclosure Notification Laws. To the extent any such Disclosure Notification Laws obligate IIS to take any action or provide notification to any person as a consequence of personal or transaction data of any person contained within the Client Transactional IP, Client shall be wholly responsible for taking such action or providing such notification and Client shall reimburse IIS for its reasonable costs and expenses to the extent that IIS performs any such action or provides any such notification.

7.4 Return. Each Party agrees to immediately return to the other Party or destroy all Confidential Information of the other Party in its possession, custody or control in whatever form held (including all copies of all written documents relating to that) upon termination of the Agreement or at any time, or from time to time, upon the request of the other Party.

Warranty and Disclaimer

8.1 IIS represents and warrants that: (i) it has the corporate power and authority to enter into and perform its obligations under this Agreement; and (ii) it shall conduct itself in a professional and workmanlike manner.

8.2 General Warranty By Client. Client represents and warrants that (i) Client has the corporate power and authority to enter into and perform Client’s obligations under this Agreement; (ii) Client has full right, power and authority with regard to each assent to consent to IIS’s performance of Services; and (iii) Client will not make any unauthorized representation or warranty to any third party relating to IIS’s Services.

8.3 Hardware and Software Warranty. IIS warrants that the hardware and software provided hereunder, when operated by Client in accordance with this Agreement, will operate in substantial conformity with the applicable Documentation. Client’s sole and exclusive remedy for breach of this warranty is to notify IIS of the non-conformity in writing, whereupon IIS, as its sole obligation and liability, will at its election, either: (i) correct the affected hardware or software to render it conforming to the applicable Documentation within a reasonable period of time, or in the event that (i) is not commercially reasonable; (ii) accept the return of the item and refund to Client a pro-rata portion of the subscription paid for such item. This section sets forth Client’s sole and exclusive remedy and IIS’s entire liability to Client for any software or hardware non-conformity or other malfunction of the Cloud Services not covered by Section 8.4 below.

8.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, IIS PROVIDES THE SERVICES, SUPPORTED COMPONENTS, AND ANY EQUIPMENT AND THIRD PARTY SOFTWARE ON AN “AS IS” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IIS HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION.ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AVAILABILITY, SECURITY, REASONABLE CARE, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT IIS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO ANY AND ALL SERVICES, SUPPORTED COMPONENTS, AND ANY EQUIPMENT OR THIRD PARTY SOFTWARE. IIS DISCLAIMS ANY AND ALL WARRANTIES, AND REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT.

8.5 IIS shall not be liable for any indirect or collateral damage, including consequential damages, profit losses, interest losses, missed savings, financial losses, or other similar types of damage.

Indemnification

10.1 By IIS. To the extent permitted under 28 USC §516, IIS will defend, indemnify, and hold harmless Client from and against any and all claims, losses, liabilities, damages and expenses (including, without limitation, reasonable attorneys’ fees) finally awarded to the extent arising from any claim brought against Client by a third party alleging that IIS’s services infringes a third party’s U.S. intellectual property right (“Claim”); provided that (i) Client promptly notifies IIS in writing of its notification of a Claim such that IIS is not prejudiced by any delay of such notification; (ii) to the extent permitted under 28 USC §516, IIS will have sole control over the defense and any settlement of such Claim; and (iii) Client will provide reasonable assistance in the defense of same. In providing such assistance, IIS will reimburse Client up to 12 months’ charges Client paid for IIS’s services, commencing from the date Client receives notice of such infringement. IIS shall not enter into any such settlement agreement which imposes an obligation on Client without Client’s prior written consent which shall not be unreasonably withheld or delayed. Client may participate in the defense or settlement of a Claim with counsel of its own choosing and at its own expense, however, Client shall not enter into any settlement agreement or other settle any such Claim without IIS’s prior written consent.

10.2 Infringement Remedies. Following notice of an infringement claim covered by Section 10.1, and in the event an injunction is sought or obtained against use of the Services subscribed to hereunder or in IIS’s opinion is likely to be sought or obtained, IIS shall, at its option and expense, either: (i) procure for Client the right to continue to use the Services as contemplated herein; (ii) replace or modify the Services to make Client’s use non-infringing while being capable of performing the same function without material degradation. In the event the options set forth in sections (i) and (ii) herein above, are not reasonably available, IIS may in its sole discretion and upon written notice to Client, terminate the impacted Services and provide Client a pro-rata refund representing the portion of any fees previously paid for the unused portion of the terminated Services. This section states IIS’s sole liability and Client’s sole and exclusive remedy for claims of infringement related to the Services.

10.3 By Client. Client shall not enter into any settlement agreement that imposes any obligation on IIS without IIS’s prior written consent.

Limitation of Liability

IIS and its Affiliates and their respective officers, directors, trustees, employees, and agents, successors and assigns (collectively referred to as “Covered Parties”) will not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any deficiency, unavailability, or interruption in any of the Services not within the reasonable control of IIS; (b) any use of the Services by a Third Party (regardless of whether the Third Party received any assistance from a Covered Party in using the Services); (c) any Third Party’s use of any equipment in connection with the Services; or (d) any delay or failure in performance beyond the reasonable control of a Covered Party. REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IIS’S TOTAL LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOVER, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY IIS’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. IN NO EVENT SHALL IIS BE LIABLE IN CONTRACT, TORT, OR ANY OTHER THEORY OF LAW, FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR CONSEQUENTIAL DAMAGE PERTAINING TO ANY OF THE SERVICES HEREUNDER OR THE EQUIPMENT OR ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICE DOWN-TIME COSTS OR CLAIMS OF CUSTOMERS OF CLIENT FOR SUCH DAMAGE, REGARDLESS OF HOW SUCH DAMAGES MAY BE CAUSED, WHETHER OR NOT BECAUSE OF NEGLIGENCE, STRICT LIABILITY, FAULT OR DELAY OF IIS OR ITS BREACH OR FAILURE OF PERFORMANCE HEREUNDER.

Dispute Resolution

12.1 Arbitration. Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be governed by the laws of the State of California without regard to its conflict of laws provisions and shall be determined by arbitration in Los Angeles, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator shall make detailed findings of fact and law in writing in support of any decision or report which shall be in writing and shall state the reasons upon which it is based. Judgment on the award may be entered in any court having jurisdiction. Such arbitration shall be the exclusive remedy hereunder with respect to any dispute relating to the Agreement; provided, however, that nothing contained in this section shall limit any party’s right to bring (a) post-arbitration actions in a court of competent jurisdiction seeking to confirm an arbitration award or (b) actions seeking emergency or temporary injunctive or other similar temporary relief (pending the resolution of the arbitration contemplated herein) in the event of a breach or threatened breach of any of the provisions of the Agreement. With respect to any action or proceeding that a successful party to the arbitration may wish to bring to confirm any arbitration award or to seek injunctive or other similar relief in the event of the breach or threatened breach of the Agreement (or any other agreement contemplated hereby), each party irrevocably and unconditionally (and without limitation): (i) submits to and accepts, for itself generally and unconditionally the exclusive jurisdiction of the state and federal courts of the State of California; and (ii) waives any objection it may have now or in the future that such action or proceeding has been brought in an inconvenient forum. Each party hereto shall use best efforts to cause any proceeding conducted pursuant to this Section to be held in confidence by JAMS, the arbitrator and each of the parties to such proceeding and their respective Affiliates, and all information relating to or disclosed by any party thereto in connection with such proceeding shall be treated by the parties thereto, their respective Affiliates and the arbitrator as confidential business information and no disclosure of such information shall be made by any party thereto, its Affiliates or the arbitrator without the prior written consent of the party thereto furnishing such information in connection with the arbitration proceeding, except as required by applicable law or to enforce any award of the arbitrator. Except as otherwise set forth in the Agreement, the parties shall equally share the administrative costs of the arbitration and the arbitrator, and each party shall bear its own costs and expenses for its own legal counsel and experts.

12.2 Jurisdiction. If for any reason a claim relating to this Agreement is brought and heard in any court and not through arbitration, such claim shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws provisions, and Client and IIS agree that the sole venue and jurisdiction for all claims shall be the federal or state courts located in the California. The Parties hereby submit to the exclusive jurisdiction of the federal and state courts located in Los Angeles County, State of California and each party waives any right that it might have to claim that venue in any such court is improper or that any such court is an inconvenient forum.

12.3 The parties agree that, to the maximum extent permitted by law, the Uniform Computer Information Transactions Act does not apply to the transactions and other matters contained in the Agreement. Any action of any kind arising out of or in any way connected with the Agreement, other than collection of outstanding payment obligations by IIS, shall be barred unless such action is commenced within two (2) years of the date upon which the cause of action accrues

General Provisions

13.1 U.S. Government Rights. The Services are “commercial items” as that term is defined at FAR 2.101. If Client is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), IIS provides the Services, including any related technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with IIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for this Agreement, the Government agrees to terminate its use of the Services and return the Documentation and any other software or technical data delivered as part of the Services, unused, to IIS. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.

13.2 Export Restrictions. Client may not download, export, or re-export any hardware, software or technical data received hereunder, including software and technical data embedded in any hardware, regardless of the manner in which received: (i) into, or to a national or resident of, any country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using the Services, Client represents and warrants that: (a) Client is not located in, under the control of, or a national or resident of, any such country or on any such list; and (b) Client shall comply with all applicable export control laws.

13.3 Compliance with Laws. The Parties agree to comply with all applicable local, state, national and foreign laws, rules and regulations in connection with their performance, access and/or use of the Services under IIS’s Master Terms and Conditions. Notwithstanding any provision in this Agreement, IIS shall have the right to terminate this Agreement, or an Order, immediately upon the determination by IIS that Client or its Affiliates are not in compliance with US export laws.

13.4 Entire Agreement. These Master Terms and Conditions as well as the terms and conditions of any Purchase Orders, Order Form, Proposal for Services, or Statements of Work represents the entire understanding between the Parties with respect to its subject matter and supersedes any previous communication or advertising that may exist, including any online agreement presented to Client during Client’s registration or any additional terms or conditions submitted by Client to IIS, whether part of a purchase order or otherwise.

13.5 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect.

13.6 Enforceability & Waiver. No provision of this Agreement shall be deemed waived or modified except in a writing signed by an authorized representative of the respective party.

13.7 Assignment. Client may not assign this Agreement without the prior written consent of IIS, which shall not be unreasonably withheld, provided that no such IIS consent will be required for an assignment pursuant to a merger or sale of all or substantially all of Client’s assets; provided further that such assignee is not a direct competitor of IIS.

13.8 Notices. All notices or approvals under this Agreement shall be directed to the addresses set forth on the Purchase Order, Order Form, Proposal for Services, or Statement of Work, as may be revised from time to time.

13.9 Independent Contractors. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create any form of partnership, principal-agent relationship, employer-employee relationship, or joint venture between the parties.

13.10 Force Majeure. Neither party will be liable to the other party, nor deemed in breach under the Agreement, for any delay or failure in performing (except for obligations to make payments to the other party hereunder) to the extent such delay or failure is caused by unforeseen acts of God, natural disasters, war, insurrection, acts of terrorism, major electrical or power or utility or telecommunications outages, denial of service or distributed denial of service attacks outside of IIS’s control, pandemic, health emergency declared by any governmental agency, or adoption of any law, regulation or governmental guideline, in each case to the extent outside of the non-performing party’s reasonable control (“Force Majeure Events”), provided the nonperforming party utilizes commercially practicable efforts to mitigate the effects of any Force Majeure Events.

13.11 Reliance. IIS will not be liable for any failure to meet its obligations under the Agreement if such failure is attributable to: (a) Client’s or any of Client’s employees, representatives, agents or subcontractors infringement of Third Party proprietary rights or Third Party Intellectual Property; (b) violations of Applicable Law by Client or any of Client’s employees, representatives, agents, or subcontractors; (c) any failures or defects in (i) any of Client’s software that Client provides, (ii) any of the hardware Client provides, or (iii) any equipment not under IIS’s control. Further, IIS is entitled to rely upon any instructions, authorizations or approvals made or provided by Client, and IIS shall not incur any liability or responsibility of any kind in relying on or complying with any such instructions, authorizations, or approvals.