End User License Agreement and  Admin Support Agreement   (129.4267)

This Agreement is an addendum to the CirclesX Terms of Use (https://www.CirclesX.com/termsofuse) document dated (i.e., last modified) April 14, 2020, which is incorporated into this Agreement by reference. See the Customer identifying information in the signature block below.

For the convenience of the parties, the signature blocks of this Agreement are set forth on this page.  All provisions on this and subsequent pages are part of this Agreement, which is effective, when signed electronically by creating an account on the website or on behalf of both parties, as of the date signed by Customer as written below or the date of account creation on the website.

AGREED — “CirclesX”: SimpsX Technologies LLC, a Delaware limited liability company, with principal offices and an initial address for notice at 12335 Kingsride #418, Houston, Texas, 77024; US +832 916 2001 by:	AGREED — “Customer”: [Customer] a [STATE] [ENTITY TYPE], with principal offices at [physical address] and an initial address for notice at [notice address],  [+phone number] by:
____________________________ Signature ____________________________ Printed name ____________________________ Title ____________________________ Date signed	____________________________ Signature ____________________________ Printed name ____________________________ Title ____________________________ Date signed

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1.0 Overview

Customer’s admin region:  United States.

Summary of admin account features: Each admin account (see section 2 below) will have at least the following capabilities:

• Use of desktop and mobile apps as released by CirclesX from time to time
• Asset storage, syncing, and sharing with 100 GB of cloud storage per admin account
• General Transit Feed Specification (GTFS) integration
• Web-based admin console for assigning/reassigning licenses
• Centralized IT deployment tools
• In-transit asset encryption
• At-rest encrypted multi-tenant storage
• User authentication with CirclesX ID
• Corporate control of assets stored in the cloud
• Asset sharing options controlled by the administrator
• 1:1 support sessions with product experts (see the Appendixes at the end of this document)
• Online tutorials
• Advanced-level tech support with dedicated phone line, plus email, chat, and forums experts (see the Appendixes at the end of this document)

License duration: One year, to be automatically extended for successive one-year terms IF: (i) CirclesX gives Customer written notice of upcoming expiration no later than 60 days before expiration, and (ii) Customer does not opt out of the extension by written notice to CirclesX before the expiration date.

License fee per admin account: As agreed in writing per use case.

Payment terms:  Net 30 days from receipt of a correctly-stated invoice per the payment terms in section 7 below.

Is Customer a taxable entity? Yes; see section 7.2(a) below (Customer representation of tax-free status).

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2.0 Administrator accounts

Introduction: When agreed in writing, CirclesX will arrange for Customer to create and manage an agreed number of special accounts on the CirclesX Platform (“admin accounts”) that may be used by designated Customer employees and/or contractors (each, an “admin”).

Capabilities: CirclesX will arrange for each admin account to have the ability (i) to upload certain types of information to the CirclesX Platform and (ii) to manage such information to support use of the CirclesX Platform by commuter-users in Customer’s admin region as specified on page 1. 

Individual accounts: Each admin must have his‑ or her own unique account; sharing of one admin account by multiple admins is not allowed.

Reassignment of admin accounts: Customer may permanently transfer a given admin account from one admin to another in Customer’s discretion. (This privilege is not to be abused.)

Use restrictions: The use restrictions of the Terms of Use apply except as expressly provided otherwise in this Agreement.

Contractor use: Any use of an admin account by a Customer contractor will be deemed Customer’s use for purposes of determining whether Customer is in compliance with this Agreement. 

License fee: CirclesX will invoice Customer for the license fee specified on page 1 for each admin account ordered by Customer. This will be CirclesX’s only charge to Customer for an admin account unless otherwise agreed in writing.

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3.0 Customer content

Customer responsibility: As between Customer and CirclesX, Customer is solely responsible for any content, of any kind, that is sent to or stored on the Platform by anyone using a Customer admin account. Customer will defend and indemnify CirclesX and its officers, directors, and employees from any third-party claim of any nature concerning such content.

CirclesX removal of Customer content: CirclesX may in its discretion remove or block access to any content that Customer uploads to the Platform in violation of the Terms of Use. (CirclesX does not undertake to police uploaded content.)

CirclesX handling of Customer content: CirclesX may collect, store, use, compile, modify, translate, and/or disclose any content that  Customer provides to CirclesX as stated in the CirclesX Privacy Policy or as required by law.

Compulsory disclosures: IF: CirclesX receives a subpoena, search warrant, or other compulsory legal demand for content that Customer has provided; THEN: CirclesX will (i) endeavor to promptly report the demand to Customer, subject to any applicable legal restrictions on such reporting; and (ii) provide reasonable cooperation with any efforts Customer might make, at Customer’s request and expense, to limit the disclosure and/or to obtain legal protection for the information to be disclosed.

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4.0 Limited Warranties and ‑Remedies

4.1 Introduction

CirclesX hereby warrants[1] to Customer as stated in this section; these warranties are subject to the limitations below and to the additional limitations in this Agreement. 

These warranties apply only while Customer has at least one active admin account in good standing.

Any noncompliance with one or more of these warranties must be reported in writing to CirclesX while the warranty (or warranties) in question remains in effect.

In any incident of apparent noncompliance with a warranty, Customer must provide CirclesX with all information reasonably requested by CirclesX concerning the incident.

If Customer experiences a warranty breach, then CirclesX will take the stated remedial action(s), which will be Customer’s EXCLUSIVE REMEDIES for that breach.

4.2 Platform performance warranty

CirclesX warrants that the Platform as made available to Customer’s admins will perform, in all material respects, as stated in the “Specifications,” namely

(i) the user documentation that CirclesX provides to its customers generally with the item of Platform, and

(ii) any additional specifications for the Platform’s performance that are expressly set forth and identified as such and are agreed to on behalf of CirclesX by an individual having authority at least equivalent to that of a vice-president of a corporation

Customer’s EXCLUSIVE REMEDIES for any failure to comply with the above performance warranty will be error-correction efforts as stated in section 5, failing which a refund as stated in section 5.2.

Note: CIRCLESX DOES NOT WARRANT that the Platform will be free of errors or defects, will meet Customer’s needs, or will operate without interruption. 

4.3 Malware warranty

CirclesX warrants that it has made prudent efforts[2] to ensure that the Platform as made available to Customer does not contain any virus, Trojan horse, or worm, or other soft­­ware de­signed to permit un­auth­orized ac­cess to, or to erase or otherwise harm, Customer’s soft­ware, hardware, or data.

In case of any violation of the above malware warranty, Customer’s EXCLUSIVE REMEDY will be fore CirclesX to do the following: (1) provide error-correction efforts as stated in section 5; and (2) reimburse Customer for all reasonable out-of-pocket costs incurred by Customer in mitigating and remediating harm resulting from malware covered by the above warranty, OTHER THAN to the extent that the harm that could have been mitigated or avoided by prudent precautions (for example, regular backups) by or on behalf of Customer.

4.4 Non-infringement warranty

 CirclesX warrants to Customer that the Platform does not infringe any valid copyright or trade secret right (nor, so far as CirclesX is aware, any patent right) of any third party.

IF: A party makes a claim against Customer or its employees that, if true, would constitute a violation of the above non-infringement warranty; THEN: As the EXCLUSIVE REMEDY, CirclesX will:

(1) provide Customer and/or its employees (as applicable) with a competent defense against, or settle, the claim in accordance with section 8; and

(2) in the event of a Stop-Use Event, provide Customer with Infringement Remedies as stated in section 6.

4.5 Disclaimer of other warranties, representations, etc.

CirclesX, on its own behalf and that of its suppliers, to the maximum extent permitted by law,  DISCLAIMS ANY AND ALL WARRANTIES, DUTIES, TERMS OF QUALITY, CON­DI­TIONS, AND REP­RE­SEN­TA­TIONS THAT ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT (or otherwise expressly agreed in writing),[3] with respect to the Platform or the use thereof. 

The above disclaimer extends, but is not limited, to any and all implied warranties (and any implied duties, conditions, terms, or representations) of quality, title,[4] non-infringement,[5] non-interference, quiet enjoyment, mer­chantability, fitness or suitability for any purpose (whe­­ther or not CirclesX or any of its suppliers know, have reason to know, have been advised, or are otherwise in fact aware of any such purpose), results, effort, accuracy, or quality, whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing. 

CIRCLESX DISCLAIMS — for itself and its suppliers — any warranty, duty, condition, term of quality, or rep­resentation to any individual or organization other than Customer unless CirclesX has expressly agreed otherwise in writing.[6]   

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5.0 Error correction efforts

This section sets forth CirclesX’s obligations to attempt to correct errors in Platform when so stated elsewhere in this Agreement.

What CirclesX will do

CirclesX will endeavor to provide Customer, at no additional charge, with a correction or workaround for the error as set forth in the technical-support provisions of sections 15 and 16.

To be entitled to the above error correction efforts, Customer must:

(1) report the failure to CirclesX in writing while an affected admin account remains active and in good standing; and

(2) provide CirclesX with such information about the failure as CirclesX may reasonably request.  Upon Customer’s written request, CirclesX will reimburse Customer for its reasonable out-of-pocket costs of providing CirclesX with such information.

Refund as backup remedy upon request

 IF: CirclesX does not provide Customer with a correction or workaround as stated in the Tech Support Commitment; THEN: The following will occur upon Customer’s written request for refund, and subject to confirmation of Customer’s eligibility, AS CUSTOMER’S EXCLUSIVE BACKUP REMEDY.

All of Customer’s admin accounts will be terminated automatically.

CirclesX will refund the unused portion (computed as stated below) of Customer’s paid license fee for the then-current period.

For purposes of determining the unused portion of a paid license- or maintenance fee in the above provisions, the unused portion will be computed by pro-rating the amount of the fee, on a monthly basis, as of the date on which Customer gave CirclesX notice of the issue that led to termination.

The deadline for Customer to request a refund — by notice to CirclesX, with a copy sent separately to the attention of CirclesX’s general counsel — is the latest of the following:

(1) 90 days after Customer first notified CirclesX in writing of the problem that came to entitle Customer to a refund, if CirclesX has not provided a correction or workaround by then;

(2) 60 days after CirclesX has made three attempts to correct the problem and reported failure to Customer; or

(3) such other date as the parties may agree in writing.

Note:   CirclesX sales personnel are not authorized to agree to requests for refunds.  If a sales representative purports to accept Customer’s request for a refund, that acceptance will have no effect unless Customer is otherwise entitled to a refund under this Agreement.

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6.0 Infringement Remedies

This section applies whenever this Agreement requires CirclesX to provide “Infringement Remedies.”

Definitions

“Accused Item” refers to an item for which CirclesX is obligated to provide Infringement Remedies.

The “Stop-Use Events“ are the following: 

(1) (i) a court of competent jurisdiction enjoins Customer from using the Accused Item as a result of a third-party infringement claim for which CirclesX has a defense or indemnity obligation hereunder, and (ii) CirclesX is unable to have the injunction stayed or overturned within a reasonable period of time consistent with Customer’s need for the Accused Item or for a CirclesX-provided workaround; or

(2) CirclesX settles an actual- or potential such claim and directs Customer in writing to stop using the Accused Item as part of the settlement; or

(3) CirclesX determines, in its reasonable discretion, that CirclesX should stop using the Accused Item because of an actual- or potential such claim and so directs Customer in writing.

Infringement remedy obligations

IF: A Stop-Use Event occurs while Customer is entitled to Infringement Remedies; THEN: CirclesX will take the action(s) set forth in one or more of Plans A through C below — at CirclesX’s expense — with the specific Plan(s) to be determined in CirclesX’s reasonable discretion. 

Plan A:  CirclesX will modify or replace the Accused Item with a non-infringing substitute which, in all material respects, performs the same functions as the replaced Accused Item. 

Plan B:  CirclesX will procure the right for Customer to continue using the Accused Item.

Plan C:  If in CirclesX’s reasonable judgment neither Plan A or Plan B is commercially feasible, then CirclesX will refund the unused license fee paid by Customer for the then-current license period, computed pro-rata as of the date CirclesX directs Customer to stop using the Accused Item. 

CirclesX will not be responsible for any infringing use that Customer may make of the Accused Item after CirclesX notifies Customer that CirclesX is proceeding under one of the plans above after a Stop-Use Event, beginning a reasonable time after CirclesX’s notification to permit Customer to achieve an orderly transition.

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7.0 Payments

Payment terms

All payments under this Agreement are due as specified on page 1.

If Customer disputes a portion of an invoice, then Customer will:

(1) notify CirclesX before the invoice is due;

(2) provide CirclesX with any information that it reasonably requests concerning the dispute; and

(3) timely pay the undisputed portion pending resolution of the dispute.[7] 

IF: Customer fails (i) to pay any undisputed amount when due, or (ii) to comply with the provisions of subparagraph (b) for disputed amounts; AND: Customer does not remedy the failure within 30 days after CirclesX gives Customer written notice of the failure; THEN: Without limiting any other rights or remedies CirclesX may have, CirclesX may suspend performance of CirclesX’s obligations under this Agreement by written notice to Customer until payment has been received.

Taxes

If this Agreement states that Customer is a non-taxable entity, then:

(1)  Customer represents that Customer is exempt from all taxes levied by any state, county, municipality or local taxing authority (other than certain real property taxes). 

(2) In reliance on Customer’s representation, CirclesX will not add sales tax to CirclesX’s invoices to Customer unless Customer informs CirclesX otherwise. 

(3) If a taxing authority subsequently claims that CirclesX was required to collect and pay a sales tax or similar tax in connection with any transaction under this Agreement, then Customer will defend CirclesX against such claim and indemnify CirclesX against any such tax and any penalty imposed on CirclesX for failure to collect or pay it.

(If Customer is not a non-taxable entity:)  IF: Any sales tax, use tax, value-added tax, or other tax or charge is now or hereafter imposed or assessed by any governmental entity in connection with an Order Form; THEN: Except as excluded by subparagraph (c), Customer will pay such tax or charge when invoiced by CirclesX unless you provide CirclesX with an applicable exemption certification. 

Customer will not be liable for taxes, duties, levies, and other similar charges based on and related to CirclesX’s employment of CirclesX’s employees, production costs, equity, revenues, profits, or income.

If CirclesX invoices Customer for indirect taxes such as value-added taxes (“VAT”), then at Customer’s request CirclesX will provide Customer with authorized invoices for reclamation purposes.

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8.0 Claim defense

This section applies whenever, by agreement, a party is to provide another party with a defense against a specified claim.

Defending party’s obligations

The defending party will do the following — at its own expense — subject to the provisions below:

(1) provide the protected party with a competent defense against the claim, using reputable counsel with reasonable experience in defending against that type of claim;

(2) indemnify the protected party against any award of damages, court costs, or attorneys’ fees to the extent it arises from such claim;

(3) provide all reasonable cooperation with any separate counsel that the protected party may elect to engage (at its sole option and expense) to monitor the defense; and

(4) except as otherwise provided in this Agreement or agreed in writing between the parties, not settle the claim without the protected party’s consent if the settlement would have any binding effect on the protected party.

Protected party’s obligations 

To be entitled to the benefits of the defending party’s obligations above, the protected party must:

(1) notify the indemnifying party of the claim in time to avoid materially prejudicing the indemnifying party’s ability to conduct the defense;

(2) allow the defending party to control the defense and coop­erate with it in providing the defense — the defending party will reimburse the protected party upon request for its reasonable out-of-pocket expenses incurred in such cooperation;

(3) not make any non-factual admission that might prejudice the defense without the defending party’s consent; and

(4) not settle the claim without the defending party’s consent — which is not to be unreasonably withheld — if the settlement would have any binding effect on the defending party.

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9.0 Remedy limitations

Applicability

Each of the remedy limitations in this section (and elsewhere in this Agreement) is to be enforced to the maximum extent permitted by applicable law, independently of any other applicable remedy limitation, even if any particular remedy is held to have failed of its essential purpose, and also independently of the warranty-disclaimer provisions of this Agreement. 

The limitations in this section are a material consideration for each party’s entry into this Agreement.

Remedy exclusions

Except as provided in the carve-outs below, to the greatest extent not prohibited by applicable law, NEITHER PARTY nor its subsidiaries, parent company, or affiliates, if any, WILL BE LIABLE to the other party or its subsidiaries, parent company, or affiliates, nor to any party claiming under the other party’s rights hereunder, for any indirect, con­se­quen­tial, incidental, special, punitive, exemplary, or sim­i­lar damages arising out of or relating to a breach of this Agreement by the first party, including, for example, damages for lost profits or other economic loss.  

Monetary cap

Except as provided in the carve-outs below, the following limitation (“monetary cap”) will apply to the greatest extent not prohibited by applicable law  THE MAX­I­MUM AGGREGATE LIABILITY OF EITHER PARTY and its suppliers, subsidiaries, parent company, or affiliates, if any, to the other party and all persons claiming rights through the other party (including, for example, any affiliate or other entity having rights under this Agreement), in respect of any and all claims arising out of or related to this Agreement, in contract, tort, or otherwise, will be the amount of the license fee paid or payable the three years preceding the final determination of such liability.

Carve-outs from remedy limitations

The above remedy exclusions and monetary cap will not apply to the categories in the list below (see also the accompanying notes):

(1) claim-defense and/or indemnity obligations under this Agreement, if any [Note 1];

(2) a par­ty’s intentional breach of a confidentiality obligation hereunder or intention­al infringement of the other party’s intellectual property rights;

(3) direct damages arising from a party’s willful misconduct;

(4) direct damages arising from bodily injury or death [Note 2];

(5) direct damages arising from physical injury to, or destruction of, tangible personal property [Notes 2, 3].

Note 1:  To the extent that this Agreement requires a party to defend or indemnify another party, the defense- and indemnity obligations are to be deemed “direct damages” and will not be limited by the remedy exclusions or monetary cap above.  The previous sentence, however, is not otherwise to be deemed to imply that remedies such as indirect, special, punitive, consequential, or incidental damages are available where otherwise excluded by this Agreement.

Note 2:  The direct damages indicated are subject to the remedy limitations and monetary cap above to the extent that (i) the tangible personal property in question is an information-storage medium and (ii) the injury is to information stored in such medium (including, for example, computer programs) without other damage to such medium.

Note 3:  To be carved out of the monetary cap, the damages in question must be shown to have been caused by the negligence or willful misconduct of a party or its personnel.

In case of doubt, money owed by Customer for fees agreed in writing will not be subject to the monetary cap above. [8]

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10.0 Termination

Definition. 

The phrase “termination of this Agreement” means termination of the admin-account license created by this Agreement.

Termination at will by Customer 

(a)  Customer may terminate this Agreement at any time, with or without cause, by written notice to CirclesX. [9] 

(b) If Customer terminates this Agreement, it will not be entitled to a refund of amounts paid, nor to decline to pay unpaid amounts due, under this Agreement unless expressly stated otherwise in this Agreement (generally, in the applicable warranty- and remedy provisions of this Agreement).  

Restrictions on termination by CirclesX

(a) CirclesX may terminate this Agreement if:

(1) CirclesX gives Customer written notice of a material breach by Customer; and

(2) Customer does not cure the breach within ten business days thereafter.

(b) CirclesX may also terminate this Agreement, upon 90 days’ prior written notice, if CirclesX ceases supporting commuting in Customer’s admin region. In any such case, CirclesX will refund Customer a prorated amount of Customer’s paid license fee for the license period in question.

No waiver of other rights 

Termination of this Agreement by either party in connection with a breach of this Agreement by the other party is without prejudice to any other available rights or remedies (but in any case subject to the applicable warranty- and remedy-limitation provisions of this Agreement) in respect of such breach.

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11.0 “Business associate” statutory privacy provisions

Gramm-Leach-Bliley compliance commitment

(a) These provisions apply, in addition to any applicable confidentiality portions of this Agreement, if and to the extent that (i) Customer is a “financial institution,” and (ii) Customer discloses “nonpublic personal information” of or about a “consumer” to CirclesX, as the quoted terms are defined in the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., and the applicable implementing regulations  

(b)  CirclesX will maintain the confidentiality of such nonpublic personal information and will not use it other than to carry out the purposes for which it was disclosed to CirclesX under this Agreement, or as permitted by any applicable exception under the Act and/or applicable governmental regulations. 

(c)  CirclesX will not, directly or through an affiliate, disclose such nonpublic personal information to any other person that is a nonaffiliated third party of both Customer and CirclesX, unless such disclosure would be lawful if made directly to such other person by Customer. 

(d) CirclesX will notify Customer of any breach of CirclesX’s foregoing obligations within one business day of CirclesX becoming aware of such breach.

HIPAA compliance commitment

The­se provisions apply, in addition to any applicable confidentiality provisions of this Agreement, if and to the extent that Customer discloses any “protected health information” (“PHI”), if any, to CirclesX, as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA“).   Pursuant to the HIPAA privacy rule, 45 CFR, Part 160-164, CirclesX agrees as follows.

(a) CirclesX will not use or further disclose PHI other than as permitted or required by this Agreement or as required by law.

(b) CirclesX will use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Agreement.

(c) CirclesX will promptly report to Customer any use or disclosure of PHI not provided for by this Agreement of which it become aware.

(d) CirclesX will ensure that any agents, including a subcontractor to whom CirclesX provides PHI received from Customer, or created or received by CirclesX on Customer’s behalf, agree to the same restrictions and conditions that apply to CirclesX with respect to such PHI.

(e) CirclesX will make available PHI in accordance with 45 CFR § 164.526.

(f) CirclesX will make available PHI for amendment and incorporate any amendments to PHI in accordance with 45 CFR § 164.526.

(g) CirclesX will make available PHI required to provide an accounting of disclosures in accordance with 45 CFR § 164.528.

(h) CirclesX will make CirclesX’s internal practices, books, and records to the extent that they relate to the use and disclosure of PHI received from Customer, or created or received by CirclesX on Customer’s behalf, available to the secretary of HHS for the purpose of determining Customer’s compliance with the HIPAA privacy rule.

(i) If Customer determines that CirclesX has breached this HIPAA compliance commitment, Customer may terminate this Agreement, effective immediately upon notice of termination (or such other time as stated in such notice, in accordance with the notice- and termination provisions of this Agreement.

(j) CirclesX will, at any termination of this Agreement, if feasible, return or destroy all PHI received from Customer’s or created or received by CirclesX on Customer’s behalf that CirclesX still maintains in any form and retain no copies of such information; or, if such return or destruction is not feasible, extend the protections of this Agreement to PHI and limit further uses and disclosures to those purposes that make the return or destruction of PHI infeasible.

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12.0 Assignment of this Agreement.  

In general

Either party may assign this Agreement to an entity that qualifies as an Affiliate of that party by virtue of ownership of at least 50% of the voting stock of the entity.

Customer may assign this Agreement without CirclesX’s consent in conjunction with an assignment of substantially all the assets of Customer’s business in connection with which Customer uses the Platform in question.

CirclesX may assign this Agreement in conjunction with an assignment of substantially all CirclesX’s assets relating specifically to the Platform in question. 

Either party may assign this Agreement with the prior written consent of the other party, not to be unreasonably withheld, delayed, or conditioned. 

It would be an unreasonable condition to consent if the other party, as a prerequisite to consent, required the assigning party to pay a fee or provide other consideration of any kind to the other party, in addition to any fee or other consideration that would otherwise be due to the other party under this Agreement.

Any other attempted or actual assignment of this Agreement will be void.

Assignment — general provisions

If Customer assigns this Agreement, then Customer’s right to use the Platform will automatically terminate without the need for notice from CirclesX unless expressly agreed otherwise in writing by CirclesX.

Promptly after any assignment, the assigning party and the assignee must jointly give notice of the assignment to the other party.  The assignee will be deemed to have assumed the assigning party’s post-assignment obligations under, and to have undertaken to be bound by the terms and conditions of, this Agreement.

As used herein, the term “assign this Agreement” and similar terms refers to assigning all rights and delegating all future obligations of the assigning party under this Agreement. However, such an assignment will not relieve the assigning party of liability for any pre-assignment failure to meet its obligations under this Agreement without the other party’s prior written consent. 

This Agreement will inure to the benefit of, and be binding upon, the respective successors and permitted assigns of the parties.

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13.0 General provisions

Language

This Agreement and its appendixes, exhibits, and attachments, if any, are written in and shall be interpreted for all purposes in accordance with the English language as used in the United States of America.  (French translation  Les parties conviennent expresssément que le présent Accord ainsi que toutes ses annexes seront rédigés en langue Anglaise et interprétés par référence à la terminologie utilisée aux Etats-Unis.)

Notices

All notices required or permitted by this Agreement must be in writing. 

Notices may be sent to the parties’ respective addresses shown in this Agreement, or to such other address as a party designates by notice or by other reasonable written communication.  

Notices are effective upon the earlier of (1) actual receipt by the person to whose attention it is addressed, or (2) refusal of delivery by the receiving party, in either case as confirmed in writing by (i) the receiving party, or (ii) a delivery service or other neutral party in the ordinary course of business, or (3) after reasonable delivery attempts have been unsuccessful.   

A party giving notice of breach or termination is strongly encouraged, but not required, to separately send a copy of the notice, by any reasonable method, to the attention of the general counsel of the party to whom it is addressed (“receiving party”), at the general counsel’s actual address if known, otherwise at the receiving party’s address. 

Any notice that is actually received by or tendered to the person to whose attention it is directed, is to be deemed effective regardless of the address or delivery mode used.

Trademark use restrictions

Except as otherwise provided in this Agreement, neither party will use any trademark of the other party in advertising, press releases, or other publicity without obtaining the other party’s prior approval.

Customer lists

With Customer’s prior written consent, CirclesX may include Customer’s name in customer lists that it provide to prospective customers and/or in published advertisements.

CirclesX will comply with Customer’s standard trademark-usage guidelines if Customer provides them to CirclesX.

Upon Customer’s request at any time, CirclesX will promptly provide Customer with representative copies of CirclesX’s materials that identify Customer as a customer (redacted if necessary to remove confidential information) and will work with Customer either to modify or to remove Customer’s name from such materials to which you object.

Governing law

If Customer is one of the United States or a subdivision of such a state, then any dispute arising out of or relating to this Agreement or its interpretation, validity, enforceability, or breach will be governed by the laws of that state, otherwise by the laws of the state of Texas (in any case, exclusive of conflicts-of-law provisions). [10] 

The parties exclude application of the Uni­ted Nations Convention on Contracts for the International Sale of Goods.

Savings clause

If any provision of this Agreement is held to be invalid, void, unenforceable, or otherwise defective by a court or other tribunal of competent jurisdiction, then:

(1) all other provisions will remain enforceable, and

(2) the provision in question will be deemed modified to the minimum extent necessary to cure the defect. 

Attorney fees

If either party brings an action in respect of any dispute arising out of or relating to this Agreement or its interpretation, validity, enforceability, or subject matter, then the prevailing party in the action itself and the prevailing party in any separate contested proceeding of the action (for example, any motion in the action) shall be entitled to recover, in addition to any other relief, reasonable attorneys’ fees and expenses and costs of the action or proceeding.

Exclusive agreement; amendments

This Agreement (by definition incorporating this Agreement and its applicable schedules, appendices, exhibits and attachments, if any, by reference) constitutes the final, complete, and ex­clusive agreement between Customer and CirclesX relating to its subject matter. 

This Agreement su­per­­sedes any and all prior oral or written ag­ree­ments, representations, negotiations, or other deal­­ings be­tween Customer and CirclesX con­cerning that subject matter. 

In entering into this Agreement, neither party is relying, and neither party will rely, on any representation by the other party, express or implied, except as specifically set forth in this Agreement or in a document expressly referenced by or incorporated by reference herein. 

This Agreement may not be amended except by a writing signed by the parties (and in CirclesX’s case, by an officer of CirclesX) that specifically identifies the amended document and expressly states that it “amends” such document.  Any purported oral or other non-written amendment shall be null and void. 

Neither (i) endorsement, by a party’s clerical or accounting personnel, of a check or similar instrument that contains amendatory language, nor (ii) any printed, typed, or handwritten language in any purchase order or other form provided by Customer, shall be effective as an amendment unless the conditions of the first sentence of this subparagraph (b) are satisfied.

Purchase orders  

Without limiting the entire-agreement provisions of this Agreement:  IF: Customer provides CirclesX with a purchase order in connection with this Agreement, then regardless whether CirclesX signs, acknowledges, accepts, or fully‑ or partially performs under the purchase order, CIRCLESX OBJECTS to any additional or different terms in the purchase order, other than any that are identical to those of this Agreement, UNLESS the purchase order meets the requirements to amend this Agreement. 

Any such acknowledgement, acceptance, or performance is not to be construed as assent to any such additional or different terms, but instead will constitute an acknowledgement of receipt of the purchase order and, if the purchase order is deemed an offer on Customer’s part, CirclesX’s counteroffer on the terms of this Agreement.

Force majeure

Neither party will be liable for performance delays or for nonperformance due to natural disaster, acts of God, labor disputes, government intervention, or other causes that (i) were beyond its reasonable control, and (ii) were not the result of the party’s willful misconduct or failure to take prudent precautionary measures.

This section’s excuse from performance does not apply to failure to pay any amount due under this Agreement unless the failure results from (i) physical damage to the premises of the party failing to pay, or (ii) disruption of banking channels that prevents the party from timely making payment.

Independent contractors

The relationship between the parties to this Agreement is to be deemed that of independent contractors; nothing in this Agreement is to be construed to create or imply a partnership, joint venture, agency relationship or contract of employment.

Signature; counterparts  

This Agreement may be signed and delivered in sep­­arate count­erparts, each of which shall con­sti­tute an original, but all of which to­­ge­ther shall con­sti­tute one and the same instru­ment.  Any coun­terpart may com­prise one or more du­pli­cates or dupli­cate sig­nature pages, any of which may be exe­cuted by less than all of the parties provided that each party whose execution is required executes at least one of the same.

A copy of this Agreement or a signature page thereof, signed on behalf of a party and transmitted to the other party by FAX, or in graphical-image form by email or other electronic transmission, shall be deemed for all purposes to have been signed and delivered by that party to the other party. 

If and to the extent that a fully- or partially-executed original of this Agreement is ad­mis­sible in evidence in any proceeding as be­tween the parties (including, for example, a FAX- or graphical-image copy), then a photocopy of the same is to be deemed admissible to the same extent as the original.

No unannounced modifications to signature documents

The parties have reviewed (and, if applicable, negotiated) this Agreement in its electronic form.  They desire to be able to sign the hard-copy version, exhibit, amendment, or addendum to this Agreement (together, “Signature Documents“), without having to re-read such document to confirm that no unauthorized changes were made before the final printout. 

Toward that end, by signing and delivering any Signature Document, now or in the future, each party will be deemed to represent to the other that it has “redlined,” or otherwise called to the other party’s attention in writing, all changes it has made in drafts of the document exchanged by the parties in the course of the discussions and/or negotiations (other than non-substantive changes such as format modifications and correction of typographical errors).

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14.0 Definitions

Affiliate:  As to a corporation or other entity, “Affiliate” means:  (a) any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with such entity; and (b) any other entity (if any) expressly agreed to in writing. 

NOTE: As used in this definition, “controlled” or “control” means (1) ownership, directly or indirectly, of 50% or more of the voting securities of such party, or (2) the power to direct or cause the direction of the management and policies of such entity through (i) ownership of voting stock, or (ii) by contract.

Examples are not intended to be limiting.

Includes: (in either upper- or lower case)   The term “includes” means “includes without limitation” unless expressly stated otherwise.

(CONTINUED ON NEXT PAGE)

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15.0 Appendix: Technical Support Policies and Procedures

When Customer acquires CirclesX’s Standard Support, Premium Support, or TAM Support packages via an Order Form, Customer has access to CirclesX support summarized in the following table and explained in more detail below.

	Available to then-current maintenance customers of
Support types (see below for details)	Standard  Support	Premium Support [1]	TAM Support  [1, 2]
CirclesX Customer Portal access	X	X	X
Email Support	X	X	X
Standard Phone Support  (12 x 5)	X	X	X
Severity-Level Responsiveness	X	X	X
24 x 7 x 365 Phone Support		X	X
Expedited Support – priority status in the phone queue		X	X
Senior-Level Access		X	X
Technical Account Manager (TAM) assignment			X
Scheduled Support			X
Health Check annual site visits			X

[1]  At this writing, Premium Support and TAM Support are available only in the U.S and U.K.

[2] TAM Support includes all features of Premium Support.  For technical reasons, Customer’s invoice may include individual line items for both Premium Support and TAM Support.

Severity-Level Responsiveness – see below for details.

24 x 7 x 365 Phone Support provides Premium Support and TAM Support customers with continuous, round-the-clock, on-call support outside of regular business hours, including evenings and weekends, for issues concerning CirclesX’s software.  A technical support representative (“TSR”) will be paged and will return Customer’s call.  A senior TSR may not be immediately available 24×7 but will contact Customer promptly.  Important:  One of Customer’s representatives (employee or contractor) must be available to work with CirclesX’s TSR, otherwise CirclesX will handle the call as a Standard Phone Support call.

Expedited Support:  Support calls by Premium Support and TAM Support customers are given priority status, with hold time targeted at under two minutes.

Senior-Level Access  Technical issues reported by Premium Support and TAM Support customers are handled by some of CirclesX’s most-experienced technical support representatives.

The Technical Account Manager (TAM) serves as a TAM Support customer’s single point of contact at CirclesX for status and escalation of technical issues; see CirclesX’s Website for details.

Scheduled Support allows TAM Support customers to schedule support calls at any time, including weekends (but excluding holidays), on an as-needed basis, by contacting their TAM.  Scheduled Support is available to TAM Support customers at no additional charge, when scheduled at least five business days in advance, for up to four continuous hours of telephone support, once per calendar quarter.  Additional Scheduled Support is available by mutual agreement (subject to availability of CirclesX’s personnel) at CirclesX’s then-standard consulting services rates.

(END OF APPENDIX)

Appendix: Severity-Level Responsiveness Commitment

If Customer contacts CirclesX about a technical issue concerning CirclesX’s Platform, CirclesX will work with Customer to determine whether the issue is Severity 1, 2, 3, or 4.  CirclesX will respond, and subsequently keep Customer updated about CirclesX’s progress, as set forth in the following table and its accompanying notes.

		Standard Support		Premium- or TAM Support
	Contact Method	Targeted Initial Response Time [2]	Follow-Up Efforts [3]	Targeted Initial Response Time [2]	Follow-Up Efforts [3]
1 – Critical	Phone	1 business hour	High priority 12 x 5	1/2 hour	High priority 24 x 7; updates every 4 hours upon request.
2 – High	Phone	4 business hours	High priority 12 x 5	2 business hours	High priority 12 x 5; updates every business day upon request
3 – Medium	E-mail, Web, or phone	8 business hours	Regular priority 12 x 5	4 business hours	Regular priority 12 x 5
4 – Low	E-mail, Web, or phone	8 business hours	Regular priority 12 x 5	4 business hours	Regular priority 12 x 5

Notes

[1] Severity levels are defined as follows  

Severity Level 1     A system, server or major application is down or seriously affected, or data is lost or corrupted, and there is no reasonable workaround.   

Severity Level 2     A system, server, or application is impaired, affecting Customer’s business productivity. There is no workaround currently available, or the workaround is cumbersome to use.   

Severity Level 3     A non-critical, limited problem. It does not hinder operation or it can be temporarily circumvented or avoided, or there is an available workaround.  

Severity Level 4     Non-critical problems or general questions.   

[2] “Targeted initial response” is the length of time for a CirclesX technical support representative to acknowledge Customer’s initial request for service.  To be eligible for specified Severity-Level handling, Customer’s initial notification to CirclesX must be by the corresponding contact method(s) listed in the table.

[3] For CirclesX’s follow-up efforts, CirclesX will in each case make commercially reasonable efforts to provide Customer with a correction or workaround to solve Customer’s problem or reduce its Severity Level —  taking into account the information that Customer provides to CirclesX about the importance and urgency of the issue to Customer as well as CirclesX’s other resource commitments at the time in question. 

CirclesX’s commitment to such efforts is predicated on Customer’s making appropriate employees or contractors available at Customer’s site to work with CirclesX’s technical support representative(s) and on Customer’s using corresponding efforts to provide CirclesX with diagnostic and test information as CirclesX requests.

During any period of time that Customer is unable to do so, CirclesX reserves the right to treat Customer’s issue as having a lower Severity Level. 

As used above, “24 x 7” means 24 hours per day, 7 days per week, and “12 x 5” means CirclesX’s normal (Houston) tech-support working hours, twelve hours per day, five days per week except holidays.

(END OF APPENDIX)

[1]  These warranty- and exclusive-remedy provisions are important to CirclesX; they have been crafted to allocate risk in a way that is balanced and fair to both Customer and CirclesX.

[2] Some customers ask software vendors to commit to making “best” efforts to prevent infection by viruses, etc.  The trouble with that is that, if a problem were to arise, with 20-20 hindsight it would almost always be possible for aggressive trial counsel and paid expert witnesses to come up with some additional precaution that theoretically the vendor should have taken to prevent the problem, and that by not taking that additional precaution, the vendor had supposedly breached the contract for not having used “best” efforts.

[3] The purpose of this disclaimer is to ensure that only CirclesX’s express warranties will be given effect.  CirclesX does not want any “implied” warranties, of uncertain scope or meaning, to be floating around.

[4] CirclesX cannot make the implied warranty of title because various components of the Platform are likely to be owned by others and used by CirclesX under license.

S CirclesX provides an express warranty of non-infringement, so it’s not appropriate to have an undefined implied warranty on that subject.

[6] CirclesX may be contractually required to make this disclaimer on behalf of certain of CirclesX’s suppliers.

[7] CirclesX asks for prompt notification of disputes concerning its invoices because it wants to know about such disputes before they show up in CirclesX’s accounts-receivable statistics.

[8] The money-owed category is not subject to the monetary cap, because at the very beginning of a license relationship, the money that Customer owes for a license fee will always exceed the amount of the dollar cap.

[9] Inasmuch as Customer may terminate at any time without cause, this Agreement does not include the usual provisions for termination in case of breach, insolvency, etc. 

[10] Texas has a well-developed body of business law and a business-friendly legal environment — as evidenced by far-reaching tort reform measures enacted by the legislature and approved by the voters in a constitutional amendment.

END.