THIS CLICK THROUGH SUBSCRIPTION AGREEMENT (hereinafter “Agreement”) is an agreement between you an authorized agent of your company, organization or commercial entity (hereinafter “Customer”) and Cayosoft, Inc., a Delaware corporation (“Cayosoft”) or its successor, for Cayosoft Products and/or Support Services.  Cayosoft and Customer are each a “Party” and shall be collectively referred to as the “Parties”. Capitalized terms used in this Agreement have the meanings set forth in Section 10 below.

TRIAL INSTALLATION: In the event that Customer accesses the Cayosoft Products (i) by installing the Cayosoft Products for use on a trial basis (a “Trial Installation”) or (ii) via a demonstration of Cayosoft Products, the terms of this Agreement shall apply.  The duration of any Trial Installation shall begin on the date that Customer first installs any Cayosoft Products and end twenty-five (25) days after the date of such installation (the “Trial Period”).  Upon the expiration of the Trial Period, all of Customer’s access to the Cayosoft Products will automatically be terminated or the Cayosoft Products will be reduced in functionality to the “freeware” version.  In the event that the Trial Period is extended for any reason with the consent of Cayosoft, the terms of this Agreement will continue to apply for the duration of any extension of the Trial Period, in addition to the Trial Period.

By downloading, installing, copying, purchasing or otherwise using the Cayosoft Products or any updates to the Cayosoft Products you agree to the terms of this Agreement, set out below, in their entirety and if you do not agree to the terms of this Agreement in their entirety do not purchase, download, install or use the Cayosoft Products, terminate the installation process immediately and completely remove the Cayosoft Products including all program files, installation files, ancillary files, documentation files and any other Cayosoft Products files from all your computer or other hardware systems on which they are installed.

1.      Subscription.

1.1             So long as Customer is in compliance with all terms and conditions of this Agreement, Cayosoft hereby grants to the Customer the Customer License for the Term of this Agreement.  The rights and licenses granted under this Agreement to Customer may be used by or on behalf of any Affiliate of Customer. Customer may not (a) authorize or license any third party whatsoever (except an Affiliate) to use, license, sublicense or otherwise transfer the Cayosoft Products or any part thereof, (b) modify or customize the Cayosoft Products (except as may otherwise be set forth herein), (c) create any derivative works in, or based on, the Cayosoft Products, (d) print, copy, reproduce, distribute, transfer, transmit (whether physically or electronically), except as needed for internal business purposes, or assign the Cayosoft Products, (e) decompile, disassemble, decode or otherwise reverse engineer the Cayosoft Products or any part thereof or (f) promote, deliver, distribute, resell, or license the Cayosoft Products through any third-party. The Customer shall maintain any and all proprietary notices incorporated in, or fixed to, the Cayosoft Products and on all copies or extracts thereof and may not alter or remove such notices.

1.2             Subject only to the limited license granted according to the provisions of Section 1.1, all right, title and interest in and to (a) the Cayosoft Products, (b) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by either party hereto from its use of the Cayosoft Products or in the performance of its obligations under the Agreement and (c) all associated copyright, trademark, patent, trade secret and intellectual property rights of the Cayosoft Products, is, and shall be, at all times solely vested in, and shall remain the exclusive property of, Cayosoft and those third parties whose software programs have been incorporated by Cayosoft as part of the Cayosoft Products.  Cayosoft, on behalf of itself and such third parties, reserves all of its, and all of such third-parties’, rights in such property.

1.3             All of the Customer Data as well as the Customer Work Product, including any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by the Customer that is not part of the Cayosoft Products or is used by the Customer to create the Customer Work Product, is and shall remain the sole and exclusive property of its owner.

1.4             Cayosoft will provide Customer with the user ID’s, passwords, and such other access control information to protect the security of the Cayosoft Products. Cayosoft may modify the security procedures during the term of this Agreement from time to time. The Customer agrees to establish commercially reasonable security procedures to protect the integrity of the Cayosoft Products from access by unauthorized persons. Should any unauthorized or third party gain access to Cayosoft Products, Customer agrees to immediately notify Cayosoft.

2.      Term & Termination.

2.1             Unless otherwise specified in an invoice or order form, the term of this Agreement is for twelve (12) months (the “Initial Term“) beginning on the Effective Date. This Agreement shall automatically renew after the Initial Term for an additional twelve (12) months (each, a “Renewal Term” and, collectively with the Initial Term, the “Term“), unless either party provides written notice of termination to the other party sixty (60) days prior to the end of the then-current term.

2.2             The provisions of this Agreement shall commence as of the Effective Date and continue in full force and effect for the Term or until terminated by either party according to the provisions of this Section 2.

2.3             Either party hereto may terminate this Agreement upon written notice to the other party hereto if such other party (a) made a material inaccuracy or breach of a representation or warranty in Section 6, (b) materially breaches a covenant made in this Agreement or (c) materially fails to perform, or materially fails to comply with, its obligations under the provisions of this Agreement and does not cure such inaccuracy, breach or failure within forty-five (45) days after receipt of written notice from the non-breaching party (except for payment obligations, for which the cure period is fourteen (14) days).

2.4             Either party hereto may immediately terminate this Agreement if the other party hereto (a) files a petition in bankruptcy, (b) has filed against it a petition in bankruptcy and such petition is not dismissed within 90 days of being so filed, (c) becomes insolvent, and (d) makes an assignment, or enters into some other arrangement, for the benefit of its creditors.

2.5             Immediately upon the termination of this Agreement, the Customer (i) may no longer use the Cayosoft Products and shall have no further right, title or interest in the Cayosoft Products or any part thereof, including any license in either of the same, and (ii) shall pay all outstanding fees due to Cayosoft (if any).  Except as otherwise provided herein, upon the termination of this Agreement, neither party hereto shall have any further obligation or liability to the other under the provisions of this Agreement.

2.6   The applicable portions of this Agreement that are intended to survive termination shall survive, including but not limited to Sections 1.2, 1.3, 2.5, 2.6, 5, 7, 8, and the applicable portions of Section 9.

3.      Fees.

3.1             In consideration of the subscription to the Cayosoft Products and/or Support Services, Customer shall pay to Cayosoft the fees described in the applicable order form or invoice, subject to the payment terms described in Schedule A. Such invoice or order form will describe the Cayosoft Products ordered by the Customer, and the quantities and types thereof. Cayosoft will provide Customer with notice of any pricing changes for the Cayosoft Products and/or Support Services within 30 days of the end of the then-current term. All fees shall be paid in U.S. Dollars within 30 calendar days of the date on which Cayosoft invoices Customer. Any amounts unpaid after 30 days will bear interest on the unpaid balance at 1.5% per month. If this Agreement is not renewed by the end of the then-current term or if fees are past due, Cayosoft reserves the right to turn off Customer’s access to the Cayosoft Products and/or Support Services until payment is made. Customer shall bear the cost of collection of any past due amounts.

3.2             The fees listed on the applicable order form or invoice are exclusive of any sales, use, excise, value-added, withholding or other taxes due or payable as a result of the parties’ mutual execution and delivery of this Agreement.  Customer shall be responsible for all, and shall reimburse Cayosoft for any, such taxes.  If Customer owes to Cayosoft any amounts whatsoever, Cayosoft may deduct an amount equal thereto from the Amounts Due.

4.      Maintenance.

4.1             Cayosoft may provide training, support, maintenance, configuration, customization and/or other professional services (“Support Services”) to Customer at an additional cost. The terms and fees associated with the Support Services shall be set forth in the Customer’s applicable invoice, and such invoice will be incorporated as an addendum to this Agreement. Except as otherwise provided in this Agreement or an invoice, Cayosoft shall have no obligation to provide any Support Services for the Cayosoft Products to Customer or its end users.

4.2             The Customer shall promptly report to Cayosoft, in writing, any flaws, errors, bugs, defects or other problems in or with the Cayosoft Products that it identifies.

4.3             Support Services are included in the license fee and will be provided by Cayosoft for the Term.

5.      Confidentiality.

5.1             The term “Confidential Information” means any information that a reasonable person would consider to be confidential, including but not limited to all trade secrets, know-how, software and other financial, business or technical information of a party that is disclosed to the other party in connection with this Agreement. Information shall not be considered Confidential Information if the receiving party can document that the information (i) is or becomes (through no improper action or inaction by the receiving party or any affiliate, agent, consultant or employee) generally available to the public, (ii) was in its possession or known by it without restriction prior to receipt from the disclosing party, or (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of or reference to the Confidential Information of the disclosing party. The receiving party may make disclosures required by law or court order provided that the receiving party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order, and notifies the disclosing party of such disclosure.

5.2             Except for the specific rights granted by this Agreement, each party agrees not to use or disclose any Confidential Information of the other party without the prior written consent of the disclosing party, and shall use reasonable care to protect the other party’s Confidential Information.  Each party is responsible for any breach of confidentiality by its employees.  The Cayosoft Products and related documentation are the Confidential Information of Cayosoft.

5.3             Competitive Comparisons.  Except for the specific rights granted by this Agreement, Customer shall not distribute or disclose any information about the Cayosoft Products to be used for competitive comparison or other competitive purposes.

6.      Representations & Warranties.

6.1             The Customer hereby represents and warrants to Cayosoft that, as of the Effective Date, it has the full right, power and authority to enter into, and fully perform its obligations under the provisions of, this Agreement.

6.2             Cayosoft hereby represents and warrants to the Customer that, as of the Effective Date, (a) it has the full right, power and authority to enter into, and fully perform its obligations under the provisions of, this Agreement, (b) it has the full right, power and authority to grant to the Customer the rights and licenses described herein and (c) the Cayosoft Products do not infringe upon the intellectual property rights of any third-party or misappropriate the trade secrets of any third-party in granting the Customer License to the Customer. No oral or written advice given by Cayosoft shall create additional warranties or in any way increase the scope of the warranties expressed herein.

7.      Indemnification.

7.1             Each party hereto shall indemnify, defend and hold harmless the other, and its shareholders, members, partners, directors, officers, employees, independent contractors, agents and affiliates from and against any liabilities, costs, fees and/or damages that arise out of any Indemnifiable Claim.

7.2             No Indemnifying Party may be obligated to indemnify the Indemnified Party until the Indemnifying Party is notified of the Indemnifiable Claim. The Indemnified Party shall deliver to the Indemnifying Party, and/or its designee, any and all documents, records and/or other information in the possession of, or otherwise known to, the Indemnified Party.  The Indemnifying Party may control the defense and/or settlement of any Indemnifiable Claim, provided that, if applicable, the Indemnifying Party may not settle any such Indemnifiable Claim without the obtaining the consent of the other party hereto, such consent not to be unreasonably withheld. The Indemnified Party shall cooperate with the Indemnifying Party in such defense and/or settlement at the Indemnifying Party’s expense (which expenses shall be reasonable). If the defense and/or settlement of any Indemnifiable Claim is compromised by the failure of such other party hereto to comply with the provisions of this Section 7.2, such other party hereto shall be liable for the expenses, costs and/or damages incurred by the Indemnified Party but only to the extent of such failure.

7.3             Notwithstanding that set forth in Section 7.2, neither the Customer nor any third-party may seek indemnification from Cayosoft for any Indemnifiable Claim that asserts the Cayosoft Products infringe upon the intellectual property rights of a third-party if:

(a)              the Cayosoft Products or any part thereof has been modified, altered or changed in any manner whatsoever by the Customer and/or any party acting on behalf of any of the same and such assertion of infringement would be, or would have been, invalidated, or could not have been brought, or would not have been successful, if such modification, alteration or change was not so made;

(b)             the Customer and/or any party acting on behalf of the same failed to install or apply, or failed to have installed or applied, any Update or Upgrade and such assertion of infringement would be, or would have been, invalidated or could not have been brought, or would not have been successful, if such Update or Upgrade was installed or applied;

(c)              the Customer and/or any party acting on behalf of the same used or uses the Cayosoft Products in a manner (1) inconsistent with the provisions of this Agreement and/or (2) contrary to its intended use and or purpose; and/or

(d)             such assertion of infringement relates solely to the Customer Work Product and/or the Customer Data.

8.      Limitations of Liability.

8.1             The provisions of Section 8 set forth the entire obligation of a party hereto to indemnify, reimburse or otherwise compensate the other party hereto for any claim brought as a result of the parties’ mutual execution and delivery of this Agreement. 

8.2             EXCEPT AS OTHERWISE EXPRESSLY STATED. THE CAYOSOFT PRODUCTS ARE PROVIDED BY CAYOSOFT ON AN “AS-IS” BASIS.  ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED.  WITHOUT LIMITATION, CAYOSOFT DOES NOT WARRANT THAT (A) THE OPERATION AND/OR USE OF THE CAYOSOFT PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THE CAYOSOFT PRODUCTS WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (C) ALL DEFICIENCIES OR ERRORS IN THE CAYOSOFT PRODUCTS ARE CAPABLE OF CORRECTION OR (D) THE CAYOSOFT PRODUCTS MEET THE REQUIREMENTS OF ANY PARTY WHATSOEVER.  THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.

8.3             NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE DAMAGES THAT MAY BE RECOVERED BY ALL INDEMNIFIED PARTIES MAY NOT EXCEED the AMOUNTS PAID BY THE CUSTOMER to Cayosoft. 

8.4             NEITHER PARTY HERETO MAY BE HELD LIABLE TO THE OTHER OR TO ANY OTHER INDEMNIFIED PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.

8.5             EACH PARTY HERETO ACKNOWLEDGES THAT THE OTHER PARTY HERETO HAS RELIED UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THE AGREEMENT.

9.      General Provisions.

9.1             Each party hereto shall comply in all material respects with all applicable laws, regulations, codes and ordinances in performing its obligations under this Agreement.

9.2             Any notice required or permitted to be delivered under the provisions of this Agreement (a) shall be in writing, (b) shall be deemed effective (1) upon receipt, when delivered personally or by courier, electronic mail (if confirmed by the recipient thereof), (2) the day delivered, if delivered by a reputable overnight delivery service, or (3) 48 hours after being delivered via certified or registered mail with postage prepaid if delivered to the address, (c) shall be given according to the provisions of this Section 9.2 and (d) delivered to the address, or fax number, set forth beneath the signature of such party’s authorized representative on this Agreement.

9.3             This Agreement constitutes the entire agreement between such parties as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of the parties with respect to the subject matter hereof, whether written or verbal. To the extent of any conflict between this Agreement and any click-to-proceed agreement associated with the Cayosoft Products (if any) or any purchase order provided by Customer, this Agreement shall apply.

9.4             Any term of this Agreement may be amended, waived, terminated or discharged only with the written consent of the parties hereto.

9.5             The failure of either party hereto to insist upon the performance of any of the terms or conditions contained in this Agreement, and the failure of either party hereto, to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.

9.6             If any provision of this Agreement is held to be unenforceable, the parties hereto shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each party prior to such holding with respect to each such provision rendered unenforceable.  If the parties hereto cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, this Agreement shall be enforceable in accordance with its terms.

9.7             Neither party may assign this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent, such consent to not be unreasonably withheld, provided, however, that either party may assign this Agreement without the other party’s consent if such assignment is made to an Affiliate or as part of the purchase of all or substantially all of that party’s business or as part of a merger, consolidation or reorganization thereof.  Any attempt to assign this Agreement other than in accordance with the provisions of this Section 9.7 shall be null and void and of no legal force or effect.  This Agreement shall be binding upon and shall inure to the benefit of the parties successors and permitted assigns.

9.8             Except for payment obligations hereunder, neither party may be held liable for its failure to perform hereunder or for any loss or damage due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.

9.9             The validity of this Agreement, the construction and enforcement of its terms and the interpretation of the rights and duties of the parties hereunder shall be governed by the internal laws of the State of Ohio, without regard to its conflicts of law principles. 

9.10         Neither this Agreement nor any provision contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the parties hereto.  The relationship created hereby is strictly that of Cayosoft and Customer.  For the avoidance of doubt, neither party hereto has the power or authority to, and no party hereto may, assume or create any obligation or responsibility on behalf of the other.

9.11         Except as may be required by applicable law or in a legal proceeding, each party hereto agrees that, except with the prior written consent of the other party hereto, it shall at all times keep confidential and not divulge, use, furnish or make accessible to anyone any confidential information, knowledge or data concerning or relating to the business or financial affairs of the other party hereto to which such party has been or shall become privy by reason of this Agreement, discussions or negotiations relating to this Agreement, or the performance of its respective obligations hereunder. Each party hereto may publicize that it has entered into this Agreement with the other and the relationship between the parties hereto, provided that neither party may (a) disclose the specific terms of this Agreement (including pricing) or (b) use the logos or trademarks of the other party, without the prior written consent of the other party, such consent to not be unreasonably withheld. 

9.12         Upon Cayosoft’s reasonable request and subject to Customer’s agreement, the Customer shall (a) provide to Cayosoft material, statistics or other information that is not confidential to the Customer if Cayosoft elects to publicize the same, (b) act as a reference in marketing and sales initiatives by Cayosoft and (c) work with Cayosoft to issue press releases and participate in media interviews, case- and market-research studies.

9.13         This Agreement may be executed in two or more counterparts (including by facsimile or other electronic transmission), each of which shall be deemed an original and all of which together shall constitute one instrument.

10.  Defined Terms.  Each of the following capitalized terms shall have the meaning set forth in this Section 10.

“Affiliate” means, with respect to the applicable party, any corporation, company, partnership, trust, sole proprietorship or other entity or individual which: (a) is owned, controlled or managed by such party, in whole or in part; (b) owns, controls or manages such party, in whole or in part; or (c) is under common ownership, control or management with such party, in whole or in part.

“Agreement” means this Click-Through Subscription Agreement entered into by and between Cayosoft and the Customer.

“Cayosoft Products” means the software products downloaded by Customer from cayosoft.com or the software products identified on the applicable invoice or order form, and any related documentation or user manuals.

“Effective Date” the first day on which the Customer downloads or otherwise accesses the Cayosoft Products and/or Support Services and/or the date the customer agrees to purchase the Cayosoft Products and/or Support Services, whichever comes first.

“Customer” means the party with which Cayosoft entered into this Agreement. 

“Customer Data” means all data provided to Cayosoft by the Customer or otherwise inputted into the Cayosoft Products, whether by the Customer or otherwise.

“Customer License” means a limited, nonexclusive and nontransferable right and license to use the Cayosoft Products.

“Customer Work Product” means that data and those forms developed or acquired by the Customer for internal business purposes independent or outside of Cayosoft or the Cayosoft Products.

“Indemnifiable Claim” means a third party claim for damages resulting from (a) any material inaccuracy or breach of the representations and warranties made by the Indemnifying Party in Section 6, (b) any material failure to perform, or any material failure to comply with, the Indemnifying Party’s obligations under the provisions of this Agreement and/or (c) any third party claim made against Customer alleging that its use of a Cayosoft Product upon the intellectual property rights of any third-party or misappropriate the trade secrets of any third-party.

“Indemnified Party” means a party entitled to indemnification according to the provisions of Section 6.

“Indemnifying Party” means a party to this Agreement responsible for the indemnification of the other party hereto according to the provisions of Section 6.

“Services Agreement” means an agreement entered into by and between Cayosoft and the Customer to provide for, among other things, maintenance, support, training and/or other professional services.

“Source Code” means (a) computer software code comprising the statements, instructions and data relating to the Cayosoft Products displayed in a form readable and understandable by a programmer of ordinary skill, (b) technical documentation and specifications relating to the Cayosoft Products, including a description of the tools used to develop and maintain the Cayosoft Products, the compiler or assembler and compilation and execution procedures and (c) the source code, technical documentations and specifications relating to any Updates or Upgrades.

“Support Services” means the maintenance and support of the Cayosoft Products, including Updates and Upgrades provided by Cayosoft to Customer.

“Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0 to 2.0.1), maintenance release, bug fix or modified form of the Cayosoft Products that performs comparable or improved functionality and which is not an Upgrade.

“Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Cayosoft Products that includes enhancements and improvements that may be added by Cayosoft.  Enhancements and improvements are any changes to the Cayosoft Products that (a) substantially increase the speed, efficiency or ease of use of the Cayosoft Products, or (b) add additional capabilities to, or otherwise improve the functions of, the Cayosoft Products.

SCHEDULE A

PAYMENT TERMS

Cayosoft Products Distribution Delivery:

All products listed on the invoice will to be distributed via electronic download only. No tangible media or documentation will be shipped in association with this quote or any order or purchase. Access to the products is not dependent upon any tangible media that may have been previously provided to you prior to or separately from this schedule.

Return Policy:

All Cayosoft products include a standard 25 day evaluation prior to payment. You agree and accept Cayosoft’s no refund policy after such evaluation period.

Payment Methods:

To receive a proforma invoice with payment details prior to paying by bank transfer or company check, please email orders@cayosoft.com. To purchase a Cayosoft product, you may use one of the following payment methods:

• Purchase Orders (Net 10 Days) – We accept purchase orders from approved organizations. Please supply your Purchase Order along with the Sales Order Form and e-mail it to orders@cayosoft.com. Please enter your Purchase Order number here ______________________.
• Reseller Purchase – Customer may elect to purchase the software through an authorized Cayosoft reseller or Cayosoft partner. In the event the Customer’s chosen authorized Cayosoft reseller defaults on payment to Cayosoft, Customer will assume payment responsibility.
• Check – To avoid delays, please include a copy of the form with the check. Orders are processed upon clearance of the funds. (If needed, reference Proforma Invoice 2017-Cayosoft and mail to remittance address above.)
• Domestic Bank/Wire transfer – Please email orders@cayosoft.com for wire transfer instructions. Transfer charges are to be paid by the purchaser.
• Credit Cards – Credit Cards accepted by Cayosoft: Visa, Master Card, or American Express. Please e-mail orders@cayosoft.com for instructions on payment by credit card.