End User License Agreement for Microsoft Sharepoint 2016 with Nintex End User License Agreement for Data Resolutions 'SPLA License' or 'Bring Your Own License' for Data Resolutions Software Bundle, Windows SQL Enterprise, Microsoft Sharepoint and Nintex End-User License Agreement This End-User License Agreement (this "Agreement") is a legal contract between you, as either an individual or a single business entity, and Data Resolution, LLC. and its affiliates ("DR"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING DR'S PROPRIETARY SOFTWARE CONFIGURED BUNDLE (the "SOFTWARE") OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE. THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU HAVE READ MICROSOFT SQL ENTERPRISE AND MICROSOFT SHAREPOINT AGREEMENTS, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THE AGREEMENTs, YOU SHOULD CLICK THE "I DO NOT ACCEPT" BUTTON BELOW, TERMINATE THE DOWNLOAD PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND DR CONCERNING THE SOFTWARE CONFIGURED BUNDLE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH DR RELATING TO THE SOFTWARE. 1. License 1.1. Grant of License. DR hereby grants to you, and you accept, a limited, nonexclusive SaaS (SPLA) license to use the Software in machine readable, object code form only, and the user manuals accompanying the Software (the "Documentation"), only as authorized in this Agreement. For purposes of this Agreement, the "Software" includes any updates, enhancements, modifications, revisions, or additions to the Software made by DR and made available to end-users through DR. Notwithstanding the foregoing, DR shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. If using a TBring Your Own LicenseU in conjunction with DR Software Bundle, then you will be asked to provide such licenses as part of the provisioning process. 1.2. Scope of Use. You may use the appropriate number of user copies of the Software activated by a license key on servers provisioned by the DR Software Bundle provisioned through the AWS Marketplace. For purposes of this Agreement, "use" of the software means loading using the Software in the AWS instances provisioned by DR Software Bundle. If you use or distribute the Software to multiple users, you must ensure that the number of users does not exceed the number of license keys you have obtained, or you will be in breach of this Agreement. 1.3. Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. IF you require copies for backup or archival purposes you must contact DR Support though AWS. No copies of the Software, Documentation, or license keys, or any portions thereof, may be made by you or any person under your authority or control. 1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, to any party without prior written consent of DR. 2. Intellectual Property and Confidentiality 2.1. Use Reporting, License Violations and Remedies. DR reserves the right to gather data on key usage including license key numbers, server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this End-User License Agreement. DR expressly prohibits simultaneous, multiple installations of our Software s and domain count overrides without prior written approval. Any unauthorized use shall be considered by DR to be a violation of this End-User License Agreement. DR reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized keys by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this agreement. Any blocking of data required for compliance under this agreement is considered to be violation of this agreement and will result in immediate termination of this Agreement pursuant to Section 4. 2.2. License Automatic Update and Expiration. Your licenses include an expiration date that can result in the termination of the license. The license updates automatically except if DR determines that a license is used in violation of the terms of this Agreement. If your license key is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify DR of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For lease licenses, your monthly payment for each month must be processed prior to the expiration date in order for the license updates to be performed. It is your responsibility to contact DR regarding any potential expiration that you deem inappropriate. DR shall not liable for any damages or costs incurred in connection with the expired licenses. 2.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to DR and Microsoft, and the Software and Documentation are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and DR, DR and Microsoft own and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that DR uses in connection with the Software or with services rendered by DR or Microsoft are marks owned by DR or Microsoft. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks. 2.4. Confidentiality. You shall permit only authorized users, who possess rightfully, obtained license keys, to use the Software or to view the Documentation. Except as 8.5. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. 3. License Fees The Software will be available to you for use upon your receipt of one or more provisioned instances and upon acceptance of this Agreement. The license fees paid by you are paid in consideration of the license granted under this Agreement. 4. Term and Termination This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are leasing the Software, and fail to pay the applicable license fees, DR shall have the right to shut down your server. 5. Indemnification You will, at your own expense, indemnify and hold DR, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys' fees (collectively, "Claims"), arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement. 6. Disclaimer THE SOFTWARE AND DOCUMENTATION ARE LICENSED "AS IS," AND DR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, PARALLELS EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE. 7. Limitation of Liability IN NO EVENT SHALL DR BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF DR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. General Terms 8.1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated within the State of California. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. 8.2. Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. 8.3. Survival. Articles 2, 5, 6, 7, and 8 of this Agreement and all Sections thereof, shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely. 8.4. Headings. The Article and Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 8.5. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. 8.6. Amendment. DR reserves the right, in its sole discretion, to amend this Agreement from time to time. If there is a conflict between this Agreement and the most current version of this Agreement, posted at www.dataresolution.net, the most current version will prevail. If you do not accept amendments made to this agreement, then this license will be immediately terminated pursuant to Section 4. 8.7. Taxes. You shall, in addition to the license fees required under this Agreement, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of the transaction contemplated under this Agreement, excluding income taxes on the net profits of DR. You shall reimburse DR for the amount of any such taxes or duties paid or incurred directly by DR as a result of this transaction. 9. United States Government Restricted Rights The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable. NINTEX END USER LICENSE AGREEMENT This Nintex End User License Agreement ("Agreement") is between Nintex and the customer (individual or entity) that has purchased a license for the Nintex Software ("Customer"). "Nintex" means the Nintex affiliate designated on the applicable Order Form. If you are an individual using the Nintex Software on behalf of a corporation, partnership, or other entity, than that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement. Each Nintex and Customer is a "Party" and together they are the "Parties." IMPORTANT: BY INSTALLING OR USING ANY PORTION OF THE SOFTWARE, CUSTOMER IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS, CUSTOMER MAY NOT INSTALL OR USE THE SOFTWARE. 1. Grant of License 1.1 In consideration of payment of the License Fee, Nintex grants Customer the Software License, subject to all of the terms and conditions of this Agreement. This license continues until terminated in accordance with this Agreement. 1.2 Customer is entitled to install the Software on one (1) computer or server only, for the sole purpose of using the Software. Customer may make one (1) copy only of the Software for back-up purposes. That copy must contain all Nintex proprietary notices. If Customer upgrades the Software, Customer may no longer use the previous version from which the Software was upgraded. 1.3 In the event that Nintex makes available to Customer a software upgrade or update, add-on component, web service and/or supplement (whether in conjunction with providing Support or otherwise), the terms of this Agreement shall apply. 2. Warranties 2.1 Nintex Warranties. The Software has notbeen written to meet Customer's individual requirements and is supplied on an "as is" basis. A failure of any part or the whole of the Software to be suitable for Customer's requirements will not give rise to any right or claim against Nintex. Nintex's sole warranties in connection with the Software are that: (a) it will work substantially in the manner described in the Software Documentation for a period of thirty (30) days from the first day the Software is first installed; and (b) it does not infringe the IP of any person. 2.2 Remedy for Breach of Warranties. Customer's sole remedy for any breach of the warranties in clause 2.1 is that Nintex must, at its option, either: (a) modify the Software; or (b) replace the Software with software of substantially similar functionality, so as to correct any defect or to render use of the Software non infringing (as the case may be) PROVIDED THAT the identified defect or infringement has not been caused by: (x) any modification, variation or addition to the Software not performed by Nintex; (y) incorrect use, abuse or corruption of the Software; or (z) the use of the Software with other software or on equipment with which it is incompatible. Customer must provide sufficient information about any defect to enable Nintex to reproduce it on Nintex's systems. 2.3 Customer's Acknowledgement. Customer acknowledges that the Software in general is not free of errors or defects and agree that the existence of any errors or defects will not constitute a breach of this Agreement. 2.4 Viruses. Nintex does not warrant that the Software is free from all known viruses. Although Nintex has used commercially reasonable efforts to check for the most commonly known viruses, Customer is solely responsible for virus scanning the Software. 3. Confidentiality 3.1 Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, in connection with Software, that is designated as confidential or that reasonably should be understood by the Receiving Party to be confidential given the nature of the information and the circumstances of disclosure. Nintex Confidential Information includes the Software and Software Documentation. Confidential Information of each Party includes code, business and marketing plans, financial information, technology and technical information, inventions, know-how, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party. 3.2 Confidentiality Obligations. Customer acknowledges that the ideas and expressions contained in the Software and any modifications or particulars of those ideas and expressions that may be provided to Customer by Nintex are confidential (except to the extent that such information has entered the public domain other than through a breach of this Agreement by Customer). Customer undertakes not to disclose this Confidential Information to any person other than its agents and employees and then only to enable the Software to be used in accordance with and for the purposes of this Agreement. Customer must ensure that these persons maintain this confidentiality. 3.3 Copyright and Confidentiality Notices. Customer must not remove, delete or obscure any copyright notices or confidentiality notices on or in the Software. 4. Support Nintex will provide Customer with Support in accordance with the Support Documentation or a separate agreement between the Parties. 5. Intellectual Property (IP) 5.1 Rights in IP. Customer acknowledges that Customer obtains no IP in the Software or the Support. As between the Parties, all IP in the Software and the Support vests in Nintex. 5.2 Impermissible Actions. Customer shall not, except to the extent, if any, permitted by any law: (a) copy, modify, enhance or reproduce any part of the Software, in whole or in part (other than in accordance with clause 1.2) or create a derivative work of any part of the Software; (b) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever; (c) incorporate, embed, combine, merge or bundle the Software with any other hardware or software (except to the extent strictly necessary to use the Software in accordance with its intended purpose and these terms); (d) publically disseminate performance information or analysis from any source relating to the Software; (e) use the Software to develop a product which is competitive with any Nintex product offerings; or (f) directly or indirectly permit any third party to do any of the above. Nintex End User License Agreement (April 2016) 5.3 IP Obligations. If Customer becomes aware of any infringements or suspected infringements by any third party of any IP in the Software or Support, Customer must immediately notify Nintex. Customer must at Nintex's request and expense take any action as Nintex reasonably deems is appropriate to protect its IP. 6. Termination 6.1 Termination. Nintex may terminate this Agreement immediately by notice if Customer breaches this Agreement and fails to remedy the breach within fourteen (14) days of becoming aware of the breach. 6.2 Effect of Termination. On termination of this Agreement, Customer must immediately cease to use the Software and, if possible, return the Software (and all copies) to Nintex. Where the Software cannot be returned, Customer must permanently delete or destroy the Software and provide to Nintex a declaration that Customer has complied with this clause 6.2. This requirement is without prejudice to any other rights and remedies that Nintex may have in respect of the breach. Clauses 3, 5, 7, 8 and 9 survive the expiry or termination of this Agreement. Clause 3.1 expires three (3) years after the date of termination or expiry of this Agreement. 7. Taxes and Export Restrictions 7.1 Unless expressly stated to the contrary, all fees, costs and charges referred to in this Agreement are exclusive of all taxes, duties and imposts. 7.2 If Nintex is or will be liable for any taxes, duties or imposts (including goods and services tax or value added tax) on or relating to this Agreement or anything done pursuant to this Agreement (excluding income tax) then Customer must pay Nintex an amount equal to that liability at the time that Customer pays any fees, costs or charges to which the liability relates. 7.3 Export Compliance. The Software and other technology Nintex makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not, and shall not allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Software in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation, or any export or import laws, regulations, or requirements of any United States or foreign agency or authority. 8. LIMITATION OF LIABILITY 8.1 IN NO EVENT WILL NINTEX BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, DELETION OR CORRUPTION OF ELECTRONICALLY STORED INFORMATION, LOST DATA, OR OTHER SPECIAL, DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SOFTWARE, SUPPORT OR OTHER PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF NINTEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. 8.2 NINTEX'S AGGREGATE LIABILITY UPON ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SOFTWARE, SUPPORT OR OTHER PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY NINTEX UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY CUSTOMER TO NINTEX UNDER THIS AGREEMENT FOR THE APPLICABLE SOFTWARE, SUPPORT OR OTHER PRODUCTS OR SERVICES. 8.3 NINTEX ACKNOWLEDGES THAT IT HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY SET OUT IN THIS AGREEMENT, AND THAT THESE FORM AN ESSENTIAL BASIS OF THE BARGAIN REACHED exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim (provided that Customer may not settle any claim unless such settlement unconditionally releases Nintex of all liability); and (z) all reasonably necessary cooperation (at Customer's cost) from Nintex. 10. General 10.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties as to its subject matter and supersedes all prior communications in connection with that subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties. The Parties acknowledge that, except as expressly stated in this Agreement, they have not relied on any representation, warranty or undertaking of any kind made by or on behalf of the other Party in relation to this Agreement. 10.2 Authorization. Each Party warrants that it has the authority, power and capability to enter into and to perform its obligations under this Agreement and that its obligations under this Agreement are binding and enforceable. 10.3 Force Majeure. Neither Party will be liable for any failure to perform its obligations under this Agreement (other than an obligation to pay money) if the Party is prevented from doing so by any cause beyond its reasonable control. 10.4 Severability. Each term of this Agreement must be interpreted in such manner as to be effective and valid under applicable law. If any term of this Agreement is held to be prohibited by or invalid under Nintex End User License Agreement (April 2016) applicable law, that term is ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 10.5 Waiver. A term of this Agreement may not be waived except in writing signed by the Party granting the waiver. The waiver by a Party of a breach by another Party of any term of this Agreement does not operate as a waiver of another or continuing breach by that Party of that term or any other term of this Agreement. 10.6 Assignment. Customer must not assign or novate any of Customer's rights or obligations under this Agreement without Nintex's prior written consent (which Nintex may withhold in its absolute discretion). Nintex may assign or novate any of its rights or obligations under this Agreement to any person by notice to Customer. 10.7 Choice of Law and Jurisdiction. Excluding conflict of laws rules, this Agreement shall be governed by and construed under (a) the laws of the State of Washington, U.S. if Customer is located in North or South America, (b) the laws of the state of Victoria, Australia if Customer is located in Asia or Australia, or (c) the laws of England and Wales if Customer is located outside of North or South America, Asia and Australia. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of (i) Seattle, Washington when the laws of Washington apply, (ii) Melbourne when the laws of Australia apply, or (iii) London when the laws of England and Wales apply. Nothing in this section shall restrict Nintex's right to bring an action (including for example a motion for injunctive relief) against Customer in the jurisdiction where Customer's place of business is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement. 11. Definitions "Affiliate(s)" mean(s), with respect to either Party, any individuals, companies, corporations, partnerships or other entities, directly or indirectly, controlling, controlled by, or under common control with, such party. "Customer Content" means the business information or other data used by Customer in connection with the Software. "Intellectual Property" (or IP) means: (a) Patents, trademarks, services marks, design rights (whether registered or unregistered and including any applications for these rights); (b) Copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist; (c) Trade or business names; and (d) Know-how, Confidential Information and trade secrets, and any other similar rights or obligations whether registrable or not in any country. "License Fee" means the relevant license fee for the Software. "Material" means material in any form, including documents, reports, products, equipment, information, data, source code, software, software tools, and methodologies. "Software" means Nintex's software product and includes the Software Documentation and all other associated Material provided by Nintex in relation to that software. "Software Documentation" means any documentation provided by Nintex which is incorporated in or associated with software. "Software License" means a non-exclusive, non-transferable license to use the Software in accordance with this Agreement. "Support" means the support, assurance, new releases and related maintenance services for the Software described in the Support Documentation and includes the Support Documentation and all other associated Material provided by Nintex in relation to that support. "Support Documentation" means any documentation provided by Nintex which is incorporated in or associated with Support.