End User Agreement

NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING, COPYING OR USING THE LICENSED PRODUCT ACCOMPANYING THIS AGREEMENT. BY SIGNING THIS END USER AGREEMENT, CLICKING ON THE "I ACCEPT" BUTTON BELOW, OR IN ANY OTHER WAY INSTALLING, ACCESSING, COPYING OR USING THE LICENSED PRODUCT, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

RETURN: IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST CLICK ON THE "CANCEL" BUTTON BELOW, AND YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE LICENSED PRODUCT, AND YOU MUST, WITHIN 3 DAYS, DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE LICENSED PRODUCT AND DOCUMENTATION, AND TO OBTAIN A REFUND, YOU MUST NOTIFY LICENSOR IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.

PARAGRAPHS 11 THROUGH 22 ONLY APPLY TO THIS END USER AGREEMENT, IF YOU USE THE HOSTING SERVICES.

This End-User License Agreement (the Agreement), effective as of the date you accept the terms hereof (unless returned as specified above, the Effective Date), is entered into between PLE Software Group, LLC, a Nebraska limited liability company, with an address at 2011 Pine Lake Rd, Lincoln, NE 68512 USA (“Licensor”) and you the end user, (“Licensee”). The parties agree as follows:

1. DEFINITIONS

“Client Data” means any documents, related materials, data, information, You or any User provides, submits or uploads in connection with the Hosting Service. It also includes any Client Documents and Customer Data.

“Client Documents” means any documents, related materials, data, information, You or any User provides, submits or uploads in connection with the Hosting Service. It also includes any Client Data and Customer Data.

"Confidential Information" means all information of a party ("Discloser") disclosed to the other party ("Receiver"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including prices and other terms in any Schedule, unless required by law), Customer Data, the Service and its components, the Software, Licensor’s or any of its suppliers trade secrets, know-how, financial information, business and marketing plans, technology and technical information, product designs, and business processes. However, Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation by Receiver; (b) was known to Receiver prior to its disclosure by Discloser; (c) was independently developed by Receiver without reliance on any Confidential Information; (d) is received from a third party without a known duty of non-disclosure to Discloser; or (e) is required to be disclosed by law or a governmental body or court, but in such case Receiver shall reasonably cooperate with Discloser, at Discloser’s expense, to limit such disclosure. The Licensed Software is Licensor’s Confidential Information.

“Content” means the database records, reports, documents, audio and visual information, all images, videos, photos, text, templates, and other content accompanying this Agreement and provided by the Licensor.

"Customer Data" means any documents, related materials, data, information, You or any User provides, submits or uploads in connection with the Hosting Service. It also includes any Client Documents and Customer Data.

“Distributor” means the Authorized Distributor that Reseller has entered into an agreement with to sell and service PLE’s Licensed Software.

“Documentation” means the user guide, help information and/or other documentation provided by Licensor with the Licensed Products.

“End User” means You, the Customer, the Licensee.

"Hosting Service" means the provision by PLE to You of hosted document management and related services identified during the ordering process.  The Hosting Service includes the provision on a hosted basis of non-exclusive use and access to the Licensed Software, and associated hosting and support services as described herein.

“Including,” “Include,” and their variants means including without limitation.

“Licensed Software” means PLE’s proprietary software, associated media, printed materials, and online or electronic documentation.  The licensed software also includes:  (a) the PLE name, PLE logo, DocMgt name, DocMgt logo and domain names; the product and service names associated with the Service; and other related trademarks and service marks; (b) the Content and Updates; and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, all related Documentation and other tangible or intangible technical material or information.

“Licensee” means You, the User, together with the business or other entity for which the Licensed Products are obtained.

“Licensor” means PLE, Software Group, LLC

“Regular Business Hours” shall mean the time period from 8 am and 5 p.m. CST Monday through Friday.

“Reseller” means the Reseller that You have entered into an agreement with for You to use PLE’s Licensed Software.

“Support Service” means the Support Service provided by Licensor in support of the Licensed Software.

“Site” means the web site address that PLE communicates to You where You may access the Hosting Service.

“Software” means any Licensor computer program (in object code) accompanying this Agreement.

“Updates” means, if applicable, any patch, update or new version of the Software delivered to Licensee pursuant to the Support Services.

"Users" means the Licensee, or Licensee employees, consultants, contractors or agents authorized to use by the Licensee to use the Licensed Software and the Site, or anyone who have been supplied User IDs and passwords by You (or by us at your request). Licensee agrees to be responsible for the acts and omissions for its Users.

"User Guide" means the online documentation as updated from time to time.

2. LICENSE

2.1 Licensed Products. Subject to all terms and conditions in this Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsublicensable right and license to have the User use the Licensed Products without modification.

2.2 Content. Subject to all terms and conditions in this Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsublicensable right and license to have the User use, modify and otherwise process the Content (but only as part of its authorized use of the Licensed Products) and to distribute renderings of the Content (but only in form as output by the Licensed Products).

2.3 Limitations. Licensed Products may only be used for Licensee’s internal business purposes, but not by more than the number of authorized Users for which all fees have been paid by or on behalf of Licensee. Licensee has no right to sublicense the Licensed Software. If all fees are not paid and up to date, then the license is subject to suspension and termination under Section 8.

2.4 License Control. Licensee acknowledges that the Licensed Products may contain code or require devices that detect or prevent unauthorized use of, or disable, the Licensed Products, and Licensee agrees not to circumvent or disable such code or devices.

2.5 Payments. Licensee shall pay Reseller any and all initial and recurring fees for the Licensed Products, in the amounts and at the times agreed by Reseller during the purchase process. Licensor reserves the right to suspend the license if Licensee’s account has charges which are 30 days or more overdue.

2.5.1 Licensee agrees to pay all invoices within terms mutually agreed upon between Licensee and Reseller. Licensor will not invoice Licensee directly. Licensor will not accept and will refuse all payments made that Licensee makes to Licensor. This is subject to Section 2.6.

2.6 Reseller. Licensee acquired this License through a Reseller and the use of the License is conditioned upon the Reseller being authorized to sell the License. If the Reseller is no longer permitted to provide Licensor’s Licensed Software, then the remaining duration of the Licensed Software shall be serviced by Licensor.

2.6.1 If Reseller is managed by a Distributor, then the remaining duration of the Licensed Software shall be serviced by Distributor instead of the Licensor.

3. SUPPORT SERVICES

3.1 Support. All requests for technical support shall be made to the Reseller. Licensor or Distributor provide support to Licensee through and in cooperation with the Reseller. Licensor and Distributor will use commercially reasonable efforts to provide maintenance and support for the Licensed Software in accordance with its standard practices (as amended from time to time). Licensor and Distributor shall have no obligation to support any version other than the then current and immediate prior version of the Licensed Software. Licensee agrees that Reseller may charge in accordance with its then current policies for any support services resulting from (a) problems, errors or inquiries relating to any non-Licensor-provided hardware, system, service or other content or software or (b) use of any unsupported version of the Licensed Software.

3.2 Updates. Licensor will make updates to the Licensed Software available to the Reseller. If Licensee desires any updates, Licensee shall work with Reseller.

4. CONFIDENTIALITY

4.1 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees.

4.2 Confidentiality Breach.  Licensee agrees that any violation of this Section 4 may cause Licensor irreparable injury for which Licensor would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against Licensee for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that Licensor shall have at law or in equity.

5. PROPRIETARY RIGHTS

5.1 Ownership. Licensee agrees Licensor and its licensors own all intellectual property rights in and to the Licensed Software and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos and screen displays associated therewith.

5.2 Restrictions. Except and only to the extent expressly specified in this Agreement, Licensee shall not (a) use any Confidential Information to create any software, content or documentation that is similar to any Licensed Software, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Licensed Software or encryption for the Content (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Licensed Software, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Licensed Software, (e) use the Licensed Software in an automated process, (f) use the Licensed Software, or allow the transfer, transmission, export or re-export of all or any part of the Licensed Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use the Licensed Software for the benefit of any third party (e.g., time-share or service bureau arrangement) without Licensor’s prior written consent, at its discretion.

5.3 No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Licensor (and its suppliers) shall retain all right, title and interest in and to the Licensed Software (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).

5.4 Markings. Licensee shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Licensed Software or packaging.

5.5 Third Party Software. The Licensed Software may operate or interface with software or other technology (In-Licensed Code) that is in-licensed from, and owned by, third parties (Third Party Licensors). Licensee agrees that (a) it will use In-Licensed Code in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the In-Licensed Code or Licensed Software, (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the In-Licensed Code or Licensed Software, (d) Licensor has no responsibility for any Third-Party Software, and You irrevocably waive any claim against Licensor with respect to such Third-Party Software. Licensor will provide a list of Third-Party Software upon request.

5.5.1 Certain items of Licensor’s Materials and Source Code include “open source” or “free software” software (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the licensing provisions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this Agreement limits Licensee rights under, or grants customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. A list of third party Open Source Software, together with the applicable end user license(s) that are used is available upon request.

5.5.2 Licensor makes no warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability of any third party software or Open Source Software, non-infringement of third party rights or intellectual property by any third party software or Open Source Software.

5.6 Licensed Software Suggestions.  Licensor shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Licensed Software any suggestions, ideas, enhancement requests, feedback, or other information provided by Licensee or any User relating to the Licensed Software.

6. WARRANTY DISCLAIMERS

THE LICENSED SOFTWARE AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR SUPPORT SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED SOFTWARE AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

LICENSOR MAKES NO PROMISES (I) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE LICENSED SOFTWARE OR SUPPORT SERVICE OR ANY CONTENT, ALL OF WHICH ARE PROVIDED STRICTLY ON AN "AS IS" BASIS; (II) AS TO ANY THIRD-PARTY PROVIDER OR ANY OF ITS PRODUCTS OR SERVICES, WHETHER OR NOT LICENSOR MAY HAVE DESIGNATED IT OR ITS PRODUCTS OR SERVICES AS "CERTIFIED," "VALIDATED," OR OTHERWISE; (III) THAT THE USE OF THE LICENSED SOFTWARE WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (IV) THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (V) THAT ANY CUSTOMER DATA WILL BE ACCURATELY OR RELIABLY STORED, (VI) THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR (VII) THAT THE LICENSED SOFTWARE WILL BE FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT, ALTHOUGH LICENSOR WILL NOT KNOWINGLY INSERT ANY SUCH HARMFUL CODE

7. LIMITATION OF LIABILITY

7.1 Limitation of Liability. IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, GOODWILL, ECONOMIC ADVANTAGE, OR OTHER DAMAGES OF ANY OTHER KIND OR (D) IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY TO YOU (INCLUDING ANY AWARD OF ATTORNEY FEES) EXCEED $50,000, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

7.2 Acknowledgement. You acknowledge that: (a) this Section 7 is reasonable given the cost of the Licensed Software; (b) this Section 7 applies even if a remedy fails of its essential purpose; (c) all your claims are subject to the damages limitation in this Section 7.

8. TERM AND TERMINATION

8.1 Term of Agreement

8.1.1 Term Licenses. This Agreement will be effective as of the Effective Date and, unless sooner terminated as herein provided, will continue for the period of time set forth in Licensee’s agreement with the Reseller.

8.1.2 Monthly Subscription Licenses. Licensee may terminate this Agreement at any time for its convenience upon 30 days’ written notice to the Reseller. Such termination is subject to the agreement between Licensee and Reseller.

8.1.3 Premise Licenses. Licensee may terminate this Agreement at any time for its convenience upon 30 days’ written notice the Reseller. Such termination is subject to the agreement between Licensee and Reseller.

8.2 Termination for Cause. Licensor may terminate this Agreement: (a) upon 30 days’ written notice of a material breach by the other party if the breach remains uncured at the expiration of such period; and (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Licensor may terminate this Agreement immediately upon a breach of any confidentiality obligations imposed by this Agreement or immediately if any use of the Software is found to be illegal or in violation of any federal laws, state laws, local laws, federal rules and regulations, state rules and regulations, and/or foreign laws. Licensor will have the right to suspend your use of or access to the Software and Hosting Service if Licensor determines in its sole discretion that Licensee has breached this Agreement.

8.3 Licensee and Reseller Relationship. If Licensee terminates its relationship with the Reseller pursuant to the agreement between the Licensee and the Reseller, this Agreement shall terminate upon notice to Licensor. The agreement between Customer and Reseller is NOT incorporated into this Agreement.

8.3.1 If Reseller is managed by a Distributor and Licensee terminates its relationship with the Reseller pursuant to the agreement between the Licensee and the Reseller, this Agreement shall terminate upon notice to Distributor.

8.4 Reseller Termination. Licensor has a relationship the Reseller. The Reseller must be authorized to provide Licensor’s Licensed Software. If the Reseller is no longer permitted to provide Licensor’s Licensed Software, then the remaining duration of the Licensed Software shall be serviced by Licensor. In such case, Licensee shall pay Licensor directly.

8.5 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, any payment obligation) and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all of the Licensed Products and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 2.3 (Limitations), 2.5 (Payments), 4 (Confidentiality), 5 (Proprietary Rights), 6 (Warranty Disclaimers), 7 (Limitation of Liability), 8.5 (Effects of Termination), 9 (Dispute Resolution) 10 (General Provisions) shall survive.

9. Dispute Resolution. 

9.1 Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Lincoln, NE (USA), under the Federal Arbitration Act or under the Nebraska Uniform Arbitration Act, whichever may so apply and applying the commercial arbitration rules of the American Arbitration Association (“AAA”). You hereby waive any right to jury trial in connection with any Dispute. The arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of Nebraska or any other applicable law. The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.

9.2 Personal Jurisdiction. Licensee hereby unconditionally consents to the exclusive personal jurisdiction of the State of Nebraska. If judicial proceedings are brought to enforce compliance with the arbitration clause, such judicial proceedings shall only be brought in the District Court of Lancaster County, Nebraska. No text or other information set forth on any of Licensee’s purchase orders, preprinted forms, or other documents shall add to or vary any term of this Agreement.

10. GENERAL PROVISIONS

10.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee’s purchase order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska without regard to its conflicts of law provisions.

10.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.

10.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address specified by Licensee when the Licensed Product was ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. Consents and approvals required under this Agreement may be provided electronically, if they are provided in a jurisdiction that recognizes electronic signatures as enforceable under the particular circumstances.

All notices shall be in English, effective upon receipt or, if refused, three (3) business days after being sent as set forth above.

10.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.

10.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither Party shall not have authority, and shall not hold itself out as having authority, to make any contract or assume, create or incur any obligation of any kind, expressed or implied for or on behalf of the other party.

10.7 Modifications. Licensor reserves the right to modify this Agreement. Such modifications will be posted at on Licensor’s Web site thirty (30) days before the modifications are to become effective. Licensee reserves the right to terminate this Agreement within that 30 day period should Licensee choose not to abide by any such modifications. Failure to terminate this Agreement within that 30 day time period will constitute Licensee’s Agreement as so modified.

10.8 Severable.  Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.

10.9 No Waiver/Cumulative Remedies. No failure or delay in exercising a right shall constitute a waiver of that right. Except as expressly provided herein, a party’s rights and remedies shall be cumulative, and none of them shall be in limitation of any other right or remedy in law or equity.

10.10 No Designation.  This Agreement does not designate either party as the agent, employee, legal representative, partner or joint venturer of the other party for any purpose whatsoever. There are no intended third-party beneficiaries under this Agreement.

10.11 Force Majeure. Licensor shall not be liable for any failure of performance which is due to forces or circumstances beyond its reasonable control and that Licensor is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, Licensor will give prompt notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.

10.12 Export Laws.  Licensee agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Government, the U.S. Departments of Commerce and State, U.S. Export Administration Regulations and Executive Orders ("Export Controls") which prohibit export or diversion of certain technical products to certain countries. Licensee warrants that Licensee are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). Licensee will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to Licensor’s business or related technical data or any direct product thereof to any Restricted Person.

10.13 Taxes. Licensee shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by Reseller or Licensor, but excluding taxes based upon the net income of Licensor or Reseller. If Licensor has the legal obligation to pay or collect any such tax, Licensor will invoice Reseller. It is then up to Reseller’s discretion on whether Reseller invoices Licensee for the tax.

10.14 Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

10.15 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT.

10.16 License to the Government. If any user of the Licensed Products is a department, agency or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Licensed Products is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Licensed Products are comprised of commercial computer software and commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.

10.17 Acknowledgment. Licensee acknowledges that (a) Licensee has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the User and Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the Licensed Products or any other Confidential Information.

HOSTING SERVICES TERMS

HOSTING SERVICES TERMS APPLY ONLY IF LICENSEE IS UTILIZING LICENSOR’S HOSTING SERVICES. BY USING THE HOSTING SERVICES, YOU AGREE TO THE FOLLOWING TERMS

11. Hosting Service

11.1 Availability. Under the terms of and subject to the restrictions in this Agreement (including payment of applicable fees), and any and all Schedules executed hereunder, Licensor will provide the Hosting Service on a subscription basis to Licensee during the term of this Agreement. You may use and access the Hosting Service and Licensed Software solely through the Site, unless the Hosting Service is terminated. Your rights to use the Hosting Service are non-exclusive and non-transferable. You may use the Hosting Service only for your own benefit, and not for the benefit of any other third party. 

11.2 Intended Use.   The Hosting Service may be used and accessed for your internal business purposes and only by Licensee’s Users. Third parties authorized by Licensee may use the Hosting Service only for the purpose of facilitating business transactions with Licensee or for providing services to Licensee, and in no event may third parties use and access the Licensed Software provided to Licensee as a document management solution for their own or for another person’s benefit. Licensee agrees not to charge any Users to use the Licensed Software, either directly or indirectly. Licensee shall be fully responsible for use of the Licensed Software and Hosting Service by Users and their compliance with the terms of this Agreement.

11.3 Hosting Services Termination.  Licensee may elect to terminate the hosting services provided by this agreement at any time. Termination of Hosting Services also terminates Your License rights referred to in Section 2. Hosting Services are subject to suspension under sections 2.5 and 14.2, and termination under Section 8.

12. Using the Licensed Software and Hosting Service.

12.1 Licensor Responsibilities. Licensor will use commercially reasonable efforts to make the Hosting Service available on a 24 hours a day, 7 days a week, and 365 days a year basis, subject to Section 12.1.1 below excluding downtime for maintenance purposes.  

12.1.1 Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, armed conflict, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor disturbances, virus attacks or hackers, failure of third party software, failure of third party cloud services, interruption or delay in transportation, act of any government affecting the terms hereof, acts of terrorism, accident, embargo, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.

Licensor will, to the extent practicable, schedule maintenance downtime outside of regular business hours. To the extent practicable, Licensor will give notice if its maintenance will occur during regular business hours. Licensor has no control over third party cloud services or when scheduled maintenance will occur on third party cloud services.

12.1.2 Licensor shall not be liable for any failure or delay due to Licensee’s acts or omissions including but not limited to the acts or omissions of Licensee’s employees, contractors, agents, End-Users, Users or others who gain access to the Licensed Software and Hosting Service via the Licensee login identifier or password. 

12.1.3 Disclaimer of Liability. Licensor disclaims all liability whatsoever for any and all damages, including direct, consequential and incidental damages, arising out of the failure or inability of licensor to maintain access to thE HOSTING SERVICE in accordance with this Agreement, including, but not limited to, losses or damages resulting from your loss of business, loss of data or service as the result of delays or service interruptions.

12.1.4 Licensor is not responsible to ensure that Licensee’s data is in compliance with all federal, state, local laws, foreign laws, rules and regulations. Licensor does not and will not monitor Licensee’s data for inappropriate or illegal content.

12.2 Licensee’s Responsibilities.

12.2.1 In addition to Licensee’s other obligations, Licensee is solely responsible for:

a) Determining whether the Licensed Software and Hosting Service will meet Licensee’s needs

b) Selecting and training appropriate individuals to use the Licensed Software

c) Issuing appropriate passwords for Users (or asking us to do so on your behalf) and allowing only one individual to access the Licensed Software at the same time using the same user name and password

d) Maintaining the confidentiality of your Users’ user names and passwords

e) Not impersonating another User or providing false identity information for any purpose

f) All activities that occur under User accounts

g) Using commercially reasonable efforts to prevent unauthorized access to or use of the Licensed Software or any Content in whole or in part

h) Notifying us promptly of any actual or suspected unauthorized access/use

i) Abiding by all applicable local, state, national, and foreign laws, treaties and regulations, including those related to data privacy, communications, and the transmission of technical or personal data. Licensee’s responsibilities shall not be transferred to Licensor.

j) The accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data

k) Complying with our standard support policies to obtain support and other services under this Agreement

l) Providing, installing, and maintaining computer equipment and communications tools and access as Licensor specifies from time to time as applicable

12.2.2 You warrant and agree not to:

a) Violate any local, state, national or international law or regulation in connection with use of the Licensed Software and Hosting Service, or otherwise use the Licensed Software Hosting Service in any way that is in furtherance of criminal, fraudulent, or other unlawful activity

b) Cause or store any Customer Data on the Hosting Service that is unauthorized or which material is protected by intellectual property rights of a third party, unless Licensee owns or has appropriate rights to such material.

c) Interfere with or disrupt the Hosting Service or servers or networks connected to the Hosting Service

d) Violate any codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Licensed Software and Hosting Service

e) Interfere with or attempt to interfere with any other person’s use of the Hosting Service

f) Gain access to or attempt to gain access to any account, computers or networks related to the Hosting Service without authorization

g) Use the Hosting Service to send or otherwise make available any viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property

h) Use the Hosting Service in a manner that results in excessive bandwidth usage, as determined in PLE’s sole discretion

i) Impersonate any other person or entity, or misrepresent your affiliation with any other person or entity

j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Hosting Service

k) Directly or indirectly reverse engineer, decompile, modify, reproduce, or create derivative works of the Hosting Service or Licensed Software

13. Client Documents.  Licensee shall retain ownership of the documents and related materials and information Licensee uploads in connection with the Hosting Service.  Solely in order to provide the Hosting Service to Licensee, Licensor may copy, archive, index, and create metadata relating to the Client Documents. Licensor may derive and compile from your usage of the Hosting Service certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal any information about Licensee, any individual, or the contents of any Client Documents. Such aggregated data and metadata may be used for Licensor’s own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve Licensor’s products and services and create new products.

14. Fees and Payment.

14.1 Fees. Licensee shall pay the Reseller 100% of the Setup fees, Professional Service Fees, License Fees and Hosting Service Fees according to the agreement entered into between Licensee and the Reseller. Fees for additional users of the Licensed Software or for additional storage that occur during a monthly period are charged in accordance with Licensee’s agreement with the Reseller.

14.2 Suspension of Hosting Service and License. If the Reseller informs Licensor that Licensee’s account has charges which are 30 days or more overdue (except charges disputed reasonably and in good faith), Licensor reserves the right to suspend the Hosting Service and License until such amounts are paid in full. Licensor will inform Licensee in writing if the Hosting Service and License is being suspended. Once Licensor sends out notice that Hosting Service and License is being suspended, Licensee has 5 business days from receipt of the notice to inform Licensor if there is a reasonable dispute between Licensee and the Reseller regarding past due charges.

14.3 Contact Information. Licensee shall provide Licensor with complete and accurate contact information, including your legal company name, street address, e-mail address, and name and telephone number of an authorized contact and System Administrator. Licensee shall update this information within 30 days of any change. Licensee agrees that notice via e-mail is sufficient notice. If Licensee provides false or fraudulent information, Licensor may terminate Licensee’s access to the Service.

14.4 Reconnection Fee. Licensor reserves the right to impose a reconnection fee of $500 if Licensee’s access to the Service is suspended and Licensee thereafter requests access to the Hosting Service. Licensor will invoice Reseller for the $500 reconnection fee. It is then up to Reseller on whether Reseller invoices Licensee for the reconnection fee.

15. Additional Confidentiality. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, Licensee shall disclose and allow access to the Hosting Service only for the purpose of supporting and augmenting your use of the Hosting Service. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure. Further, if disclosure is necessary, such disclosure shall be made pursuant to a protective order, and such party shall use its best efforts to secure the protective order prior to any such required disclosure.

Licensor shall not provide any Confidential Information, Customer Data and Client Documents to any third party unless there is a court order. Absent a court order, Licensee will not release the information to a third party even if the request is made by Licensee for Licensor to release information to a third party.

15.1 Return. If requested, Licensee shall return all of our Confidential Information. This Section 15 shall survive any termination or expiration of our relationship, including Licensee’s decision to stop using the Service. 

15.2 Return of Documents.  Upon termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party; the process for the return of Client Documents by Licensor to Licensee is detailed in Section 18.

16. Protection of Information.  Licensor will take reasonable security measures designed to protect your Confidential Information, including your Client Documents. These measures will include the use of reasonable physical, administrative, and technical security techniques and systems designed to prevent unauthorized access and disclosure, maintain data accuracy, and ensure appropriate use of your Confidential Information. While Licensor will provide security measures to protect Client Documents and Confidential Information, Licensee does not make any warranties that the Licensed Software or the Hosting Services are PCI compliant.

17. HIPAA

17.1 To the extent required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and regulations related to privacy promulgated thereunder (the “Privacy Standard”), and notwithstanding anything to the contrary herein, Licensor will maintain the confidentiality of Protected Health Information (“PHI”) as defined by the Privacy Standard.

17.2 Disclosure of PHI. Licensor will use appropriate safeguards to prevent use or disclosure of PHI. If there is unauthorized use or disclosure or breach of third party cloud servers, and Licensor is aware of such unauthorized use or disclosure or breach of third party cloud servers, Licensor will report such to Licensee.

17.3 Licensor will only disclose or provide PHI to Licensee who provided or created the PHI or as provided by a court order. Licensor will not provide any PHI to any third party, including any subcontractor of the Licensee. If Licensee requests Licensor to disclose PHI to a third party, Licensor will not comply with such a request.

17.4 Mitigation. Licensor will mitigate, to the extent commercially practicable, the harmful effect of any unauthorized use or disclosure of PHI. Licensor will comply with the standards set forth under the Privacy Standard of HIPAA if there is unauthorized use or disclosure of PHI.

17.5 Termination of Agreement. Upon termination of this Agreement, Licensor will destroy all PHI received, provided or created by the Licensee. If destruction of PHI is not possible, Licensor will inform Licensee in writing and extend the protections of this Section to the PHI even after termination of the Agreement.

17.5.1 Licensor agrees that its obligations may change from time to time if necessary to comply with HIPAA. The requirements of this Section will survive this Agreement.

18. Return of Customer Data upon termination of Hosting Services.  Upon termination of the Hosting Services Licensee may request in writing that Licensor provide Licensee with access to a copy of all Client Documents and Client Data, Licensor will provide such information to Licensee so long as Licensee pays the then-current fee for such service to the Reseller and all outstanding fees to the Reseller have been paid. Licensor shall have no obligation to maintain or provide any Customer Data more than thirty (30) days after termination of the Hosting Services or expiration of this Agreement for any reason. Thereafter, unless legally prohibited, Licensor shall delete all Customer Data in our possession or under our control. 

19. Publicity.  Licensee agrees that Licensor may include Licensee as a customer in promotional material for the Licensed Software, the Service and/or for Licensor including use of Licensee’s logos, trademarks, trade names and similar identifying material. Licensee can revoke this right by submitting a request via e-mail to Licensor at sales@docmgt.com. Confirmation of such request (via reply e-mail) must be received for this to be effective. Upon receipt of such request, Licensor will use commercially reasonable efforts to remove any reference to Licensee from such promotional material within thirty (30) days and make no further reference to Licensee. Upon Licensor request, Licensee agrees to participate in a mutually agreed press release regarding the relationship established by this Agreement. In addition, Licensee agrees from time to time, as reasonably requested by Licensor and subject to Licensee’s approval, to participate in Licensor’s promotional activities, such as preparation of case studies; participation in media interviews; and preparation of quotes and other marketing materials for Licensor. Approvals under this Section shall not be unreasonably withheld or delayed by Licensee.

20. Additional Warranties and Disclaimers.

20.1 Authority Warranty. Each party represents and warrants that it has the legal authority to enter into this Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder. Licensee represents and warrants that all information Licensee provides to Licensor is and will be true and correct. Licensor warrants that the Service will substantially conform to the written or electronic documentation provided by Licensor in connection with the Service.  If a breach of this warranty by Licensor, as Licensee’s sole and exclusive remedy, Licensor will, at its expense, use commercially reasonable efforts to cause the Service to conform.

20.2 Client Documents and Client Data.  Licensee represents and warrants that all Client Documents and associated content and data provided to Licensor in connection with Licensee’s use of the Site and the Service: (i) is owned by Licensee, or Licensee has the full right to provide the Client Data to Licensor; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. Licensee further represents and warrants that Licensee’s use of Client Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that Licensee has any other person or entity. Licensee is solely responsible for the Client Data, and acknowledge that Licensor has no responsibility or intent to review or monitor any Client Data.

20.3 Responsible Use.  Licensee shall be solely responsible for Licensee’s use of the Service, and, except as otherwise agreed in writing by the parties, for maintaining backup copies of the Client Documents. Licensee acknowledges and agrees that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.

20.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12.1, LICENSOR MAKES NO, AND HEREBY DISCLAIMS ANY, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AT LAW OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING WE MAKE NO PROMISE: (I) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, ALL OF WHICH ARE PROVIDED STRICTLY ON AN "AS IS" BASIS; (II) AS TO ANY THIRD-PARTY PROVIDER OR ANY OF ITS PRODUCTS OR SERVICES, WHETHER OR NOT WE MAY HAVE DESIGNATED IT OR ITS PRODUCTS OR SERVICES AS "CERTIFIED," "VALIDATED," OR OTHERWISE; (III) THAT THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (IV) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (V) THAT ANY CUSTOMER DATA WILL BE ACCURATELY OR RELIABLY STORED, (VI) THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR (VII) THAT THE SERVICE WILL BE FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT, ALTHOUGH WE WILL NOT KNOWINGLY INSERT ANY SUCH HARMFUL CODE.

21. Indemnification

21.1 Indemnification.  The Parties shall, at their expense, indemnify, defend and hold each other and its officers, directors, owners, employees, and affiliates harmless from and against all claims, liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to your use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) breach of any representations, warranties, provisions or covenants in this Agreement, (b) compliance with applicable laws and regulations, and (c) the Client Documents. The Parties shall provide the indemnified Party with prompt written notice of any such claim.

22. Additional General Provisions

22.1 Non-Discrimination. Licensor agrees to comply fully with Title VI of the Civil Rights Act of 1964, as amended, the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§48-1101 to 48-1125, as amended, and Board Policy 5000 in that there shall be no discrimination against any employee who is employed in the performance of this Agreement, or against any applicant for such employment, because of age, color, national origin, race, religion, disability, sex, sexual orientation, or gender identity. This provision shall include, but not be limited to employment, promotion, demotion, transfer, recruitment, layoff, termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. Licensor further agrees to insert a similar provision in all subAgreements for services allowed under this Agreement.

22.2 ADA & Drug-Free Workplace Requirements. All provisions of this Agreement are subject to the Americans with Disabilities Act (ADA). Further, Licensor certifies that Licensor operates a drug-free workplace and, during the term of this Agreement, will be in compliance with the provisions of the Drug-Free Workplace Act of 1988.

22.3 Technology Access. All contracts, that include provisions of technology products, systems, and services, including data, voice, and video technologies, as well as information dissemination methods, shall comply with the Nebraska Technology Access Standards adopted pursuant to Neb. Rev. Stat. §73-205. These Standards are available for viewing on the Web at http://nitc.nebraska.gov/standards/2-201.pdf and are incorporated into this Agreement as if fully set forth herein.

SIGNED for and on behalf of:

By: ____________________________________________________ (Your Name)

For: ___________________________________________________ (Company)

Signature: ______________________________________________

Title: __________________________________________________