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SOFTWARE AS A SERVICE AGREEMENT

BEFORE YOU ("CUSTOMER") INSTALL OR ACCESS OR OTHERWISE USE THE SERVICE OR CLICK ON THE "END USER LICENSE AGREEMENT ACCEPTANCE" BUTTON AT STORE REGISTRATION FORM, CAREFULLY READ THE TERMS AND CONDITIONS OF THESE AGREEMENTS. BY INSTALLING OR OTHERWISE USING OR ACCESSING THE SERVICE OR ANY OF THE SOFTWARE CONTAINED WITHIN THE SERVICE BY CLICKING ON THE END USER LICENSE AGREEMENT ACCEPTANCE BUTTON, YOU ARE CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT.

Software as a Service Agreement

This Software as a Service (SaaS) Agreement (the "Agreement"), dated as of today (the "Effective Date"), is by and between GEMALLY LLC, a Delaware corporation with offices located at 12819 SE 38th St Suite 230, Bellevue, Washington 98006 ("Provider") and ("Customer).

WHEREAS, Customer wishes to procure from Provider the software services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions.

    "Access Credentials" means any user name and password to verify an individual's identity and authorization to access and use the Hosted Services.

    "Authorized User" means employees, contractors, agents and other individuals authorized by Customer to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.

    "Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.

    "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

    "Documentation" means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

    "Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.

    "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

    "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

    "Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

    "Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's internal business operations.

    "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

    "Personal Information" means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.

    "Process" means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.

    "Provider Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

    "Provider Materials" means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.

    "Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.

    "Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of thirdparty services.

    "Representatives" means, with respect to a party, that party's employees, officers, directors, consultants, and agents.

    "Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

    "Service Software" means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.

    "Specifications" means the specifications for the Services set forth in Schedule A and, to the extent consistent with and not limiting of the foregoing, the Documentation.

    "Third Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.

  2. Services.
    1. Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the termsand conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services described in the attached Schedule A and this Agreement (collectively, the "Services") in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:

      (a) Scheduled Downtime in accordance with Section 5.2;
      (b) Service downtime or degradation due to a Force Majeure Event;
      (c) any other circumstances beyond Provider's reasonable control, including Customer's or any Authorized User's use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
      (d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosted Services as permitted by this Agreement.

    2. Service and System Control. Except as otherwise expressly provided in this Agreement or as may be required for installation and maintenance of the Gemally SaaS Platform, as between the parties:

      (a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and

      (b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.

      Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.

    3. Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.

    4. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.

    5. Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").

    6. Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider's other rights or remedies, whether at law, in equity or under this Agreement.

  3. Authorization and Customer Restrictions.
    1. Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement and Provider's End User License Agreement, a current copy of which can be located at https://www.gemally.com/saas-eula-agreement.php. This authorization is non-exclusive and, other than as may be expressly set forth in Section 16.7, non-transferable.

    2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.

    3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

      (a) copy, modify or create derivative works or improvements of the Services or Provider Materials;
      (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any timesharing, service bureau, software as a service, cloud or other technology or service;
      (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
      (d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
      (e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
      (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider's provision of services to any third party, in whole or in part;
      (g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
      (h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law;
      (i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage; or
      (j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.

  4. Customer Obligations.
    1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintaina nd operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

    2. Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").

    3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

  5. Service Levels.
    1. Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-eight percent (98%) of the time as measured over the course of each calendar year during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Hosted Services to meet the Availability Requirement. "Available" means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Hosted Services will be considered unavailable nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Hosted Services by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 2.6.

    2. Scheduled Downtime. Provider will use commercially reasonable efforts to give Customer at least twenty-four (24) hours prior notice of all scheduled outages of the Hosted Services ("Scheduled Downtime").

    3. Service Support. The Services include Provider’s standard customer support services ("Support Services") in accordance with the Provider service support schedule, a current copy of which is included in Schedule A. Provider may amend the Support Schedule from time to time in its sole discretion.

  6. Data Backup. The Provider Systems are programmed to perform routine data backups as set out in Provider's backup policy in effect from time to time (the "Backup Policy"). In the event of any loss, destruction, damage or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider's then most current backup of such Customer Data in accordance with the then current Backup Policy.

  7. Security.
    1. Privacy Policy. Provider will only use data collected by it in conformity with the Agreement and as stated in its Privacy Policy, as the same may be amended from time to time, a current copy of which can be located at https://www.gemally.com/privacy-policy.php

    2. Data Breach Notification. In the event that Provider experiences or reasonably suspects a security breach affecting Customer Data, Provider shall use commercially reasonable efforts to provide Customer with notification within 48 hours after Provider becomes aware of the security breach. Notification shall be made to the Customer contact provided in Section 16.4 of the Agreement.

    3. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

    4. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data for Processing by the Hosted Services.

  8. Payment Terms.
    1. Payment Term. Payment terms governed by agreement between Customer and Reseller.

    2. Overage Fee. If the Customer’s actual usage of the Service exceeds the entitlement per the purchase order.the Customer will be invoiced for the Overage Fee in accordance with the rates and calculation specified.

  9. Intellectual Property Rights.
    1. Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

    2. Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.

    3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. With respect to any data that does not include any personal information, including anonymized data and data aggregated with other users, Provider may use such data for any purpose, including but not limited to improvements to the Services, analysis of the capabilities of the Services and statistical analyses.”

  10. Confidentiality.
    1. Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 10.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential"

    2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

    3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
      (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
      (b) except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 10.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3;
      (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
      (d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 10.
    4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b)provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that[, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose.

  11. Term and Termination.
    1. Introductory or Trial Term. The introductory or trial term of the Agreement commences on the earlier of the Effective Date or the date the Customer is provisioned for Services (“the Provision Date”) and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the end date of any introductory or trial term as stated in Schedule A.

    2. Initial Term. The initial term of this Agreement commences as of the later of the Effective Date or the end date of the Introductory or Trial Term and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect for the following twelve (12) months (the "Initial Term").

    3. Renewal. This Agreement will automatically renew for additional successive one year terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").

    4. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
      (a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions) or Section 10 (Confidentiality).
      (b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
      (c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    5. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
      (a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
      (b) Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly control, provided that, for clarity, Provider's obligations under this Section 11.5(b) do not apply to any Resultant Data;
      (c) Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; and (ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls.
      (d) Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;
      (e) if Customer terminates this Agreement pursuant to Section 11.4(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination.
      (f) if Provider terminates this Agreement pursuant to Section 11.4(a) or Section 11.4(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Provider's invoice therefor.
    6. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.5, this Section 11.6, Section 12, Section 13, Section 14 and Section 16.

  12. Representations and Warranties.
    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
      (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
      (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
      (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
      (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

    3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

    4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND NEITHER PROVIDER NOR ANY RESELLER MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NEITHER PROVIDER NOR ANY RESELLER MAKES ANY WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

  13. Indemnification.
    1. Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
      (a) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Provider;
      (b) modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider's written approval in accordance with Provider's written specification;
      (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; or
      (d) act, omission or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c) or Section 13.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
    2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any:
      (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
      (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
      (c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
      (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
    3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been [materially] prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

    4. Mitigation. If any of the Services or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
      (a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
      (b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
      (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, , subject to Customer's compliance with its post-termination obligations set forth in Section 11.5, Customer will be entitled to a refund of any unused portion of Fee where Services subsequently become unavailable due to termination by Provider.
    5. THIS SECTION 13 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

  14. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS RESELLERS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    2. CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER OR ANY RESELLER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO PROVIDER IN THE PRECEDING TWELVE MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    3. Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do not apply to Provider's obligations under Section 13 (Indemnification) or liability for Provider's gross negligence or willful misconduct.

  15. Force Majeure.
    1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of sixty (60) days or more.

    2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

  16. Miscellaneous.
    1. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

    2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

    3. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer's consent, include Customer's name in its lists of Provider's current or former customers of Provider in promotional and marketing materials.

    4. Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4):

      If to Provider: Gemally LLC
      12819 SE 38th St Suite 230
      Bellevue, Washington 98006
      Facsimile: 206-357-9369
      E-mail: rushabh@gemally.com
      Attention: Rushabh Sheth, Manager

      If to Customer:___________________________

      Facsimile: ___________________________
      E-mail: ___________________________
      Attention: ___________________________

      Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

    5. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

    6. Entire Agreement. This Agreement, together with the End User License Agreement any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

    7. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent, which consent Provider shall not unreasonably withhold or delay. Any purported assignment, delegation or transfer in violation of this Section 16.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

    8. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

    9. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

    10. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    11. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington.

    12. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 or, in the case of Customer, Section 3.3 or Section 4.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

    13. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

      IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

GEMALLY LLC

Signature: ___________________________

Name: ______________________________

Title: ________________________________

Date: ________________________________


Customer

Signature: ______________________________

Name: __________________________________

Title: ___________________________________

Date: ___________________________________



SCHEDULE A

SERVICES

This Schedule A, Provider’s Services and Fees Schedule, shall be incorporated in and governed by the terms of the Software as a Service Agreement by and between GEMALLY LLC, a Delaware corporation with offices located at 12819 SE 38th St Suite 230, Bellevue, Washington 98006 ("Provider") and ("Customer”) as amended (the “Agreement”). Unless expressly provided for in this Schedule A, in the event of a conflict between the provisions contained in the Agreement and those contained in this Schedule A, the provisions contained in this Schedule A shall prevail.

Services Description

Gemally is a multi-vendor, jewelry and gemstone, cloud-based management platform which improves jewelry manufacturing efficiency and end-user convenience. Gemally-powered websites engage jewelry shoppers and build consumer confidence by providing an interactive shopping experience. Gemally jewelry retail subscribers build brand recognition while showcasing their unique jewelry designs.

END USER LICENSE AGREEMENT

This End-User License Agreement is a legal agreement between you (the "END-USER") and GEMALLY LLC (“GEMALLY”) with its principal place of business at 12819 SE 38TH ST SUITE 230, Bellevue, Washington, USA. By accessing or using the GEMALLY object code (“SOFTWARE”), including a bug fix, patch, error correction and/or other minor enhancement (“UPDATES”), END-USER agrees to be bound by the terms of this End User License Agreement and all amendments made hereto by written agreement between the parties (“AGREEMENT”). If END-USER does not agree with the terms of this AGREEMENT, END-USER shall not access the SOFTWARE or shall discontinue use of the SOFTWARE. In consideration of the promises, covenants and agreements herein contained, the parties hereto agree as follows:

1. Definitions.
(a) "COMMENCEMENT DATE" means the date on which the SOFTWARE is initially accessed by the END-USER;
(b) "THIRD-PARTY SOFTWARE" means software programs developed and/or owned by a third party, separate and independent from the SOFTWARE.

2. Rights and Restrictions
(a) Subject to the terms and conditions of this AGREEMENT, END-USER is hereby granted a non-exclusive, non-transferable license to use the SOFTWARE solely for END-USER’s own internal operations. END-USER may not re-license the SOFTWARE. END-USER covenants and agrees that the SOFTWARE will only be used in accordance with the provisions of this AGREEMENT.
(b) END-USER shall have no right to change, copy, alter, amend, reverse engineer, decompile, disassemble, publish, disclose, display or make available, in whole or in part, or otherwise use the SOFTWARE in any manner whatsoever, and shall take all reasonable steps to ensure END-USER’s employees comply with these provisions.
(c) GEMALLY or its licensors shall retain all right, title, copyright, trade secrets, patents, trade-marks and other proprietary and intellectual property rights in the SOFTWARE. END-USER does not acquire any rights, express or implied, in the SOFTWARE, other than those specified in this AGREEMENT. END-USER shall not remove any proprietary, copyright, patent, trade-mark, design right, trade secret or any other proprietary rights legends from the SOFTWARE.
GEMALLY or its licensors shall retain all right, title, copyright, trade secrets, patents, trade-marks and other proprietary and intellectual property rights in the SOFTWARE. END-USER does not acquire any rights, express or implied, in the SOFTWARE, other than those specified in this AGREEMENT. END-USER shall not remove any proprietary, copyright, patent, trade-mark, design right, trade secret or any other proprietary rights legends from the SOFTWARE.
(d) THIRD-PARTY SOFTWARE may be embedded in or delivered with the SOFTWARE licensed under this AGREEMENT. END-USER shall be limited to use of the SOFTWARE licensed under this AGREEMENT. END-USER’s right to use any THIRD-PARTY SOFTWARE shall be limited to the use necessary to implement the SOFTWARE licensed. END-USER shall have no right to use such THIRD-PARTY SOFTWARE other than as necessary for the licensed ordinary use of the SOFTWARE. END-USER grants PHAROS’s licensors the right to protect their interests under this AGREEMENT and agrees that such licensors are benefited by the provisions of this AGREEMENT.
(e) END-USER will take appropriate steps, both before initial access and at all times thereafter, to copy and protect END-USER’s own data and programs that may be lost, harmed or destroyed and to protect END-USER’s equipment from any damage. END-USER, and END-USER alone, will be responsible for reconstruction, replacement, repair or recreation of lost programs, data or equipment in the event of hardware or SOFTWARE failure. GEMALLY shall, under no circumstances, be responsible for any such losses or damages.

3. Warranty and Disclaimer
(a) END-USER HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT, EXCEPT AS PROVIDED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS" AND GEMALLY, ITS EMPLOYEES, RESELLERS, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, IN RESPECT OF THE SOFTWARE OR ANY WORK OR SERVICES PERFORMED BY GEMALLY OR ITS EMPLOYEES, OR AGENTS, INCLUDING WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED, PROVIDED THAT THIS DISCLAIMER AND EXCLUSION IS LIMITED SO AS NOT TO APPLY IN ANY JURISDICTION IN RELATION TO A WARRANTY WHICH IS LEGALLY INCAPABLE OF EXCLUSION IN SAID JURISDICTION.
(b) GEMALLY does not warrant, guarantee or represent to END-USER that the SOFTWARE will meet END-USER’s requirements, that the access or operation of the SOFTWARE will be uninterrupted or error free or that SOFTWARE defects will be corrected.

4. Limitation of Liability

Notwithstanding any damages you might incur, the entire liability of GEMALLY and any of its Resellers, licensors and suppliers under this AGREEMENT and your exclusive remedy under this AGREEMENT will be limited to the greater of the amount actually paid by you for the SOFTWARE or U.S. $5.00. NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL GEMALLY (OR ITS EMPLOYEES, AGENTS, SUPPLIERS, RESELLERS, AND LICENSORS) BE LIABLE TO END-USER OR ANY THIRD PARTY CLAIMING THROUGH END-USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS AND THE LIKE) WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF THE SOFTWARE, REGARDLESS OF WHETHER GEMALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.

BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF THE FOREGOING WARRANTIES OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO END-USER. IN THE EVENT APPLICABLE PROVINCIAL, STATE, FEDERAL OR OTHER LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OR LIMITATION OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THIS AGREEMENT, THE LIABILITY OF GEMALLY, ITS EMPLOYEES, RESELLERS, AND AGENTS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

5. Assignment

GEMALLY may assign its rights hereunder without the consent of or notice to END-USER. END-USER shall not transfer, assign, sub-license or pledge its rights or obligations hereunder, including by operation of law (e.g., in connection with a merger transaction), without the written consent of GEMALLY.

6. Term and Termination
(a) The license granted under this AGREEMENT shall remain in effect for so long as GEMALLY provides services to END-USER pursuant to the terms and conditions of an agreement between GEMALLY and END-USER concerning such services, unless terminated as provided in Section 6(b) below or otherwise as provided herein.
(b) Without prejudice to any other rights of GEMALLY, GEMALLY may terminate this AGREEMENT if END-USER fails to comply with the terms and conditions of this AGREEMENT.
(c) Upon termination of this AGREEMENT, END-USER shall cease accessing and using the SOFTWARE.

7. General
(a) Confidentiality. By virtue of this AGREEMENT, the END-USER, and GEMALLY, may have access to information that is confidential to one another ("CONFIDENTIAL INFORMATION"). CONFIDENTIAL INFORMATION shall be limited to the SOFTWARE, the terms under this AGREEMENT and all information clearly identified as confidential or any and all information END-USER should reasonably know is confidential. A party’s information shall not be considered CONFIDENTIAL INFORMATION if it: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party, either directly or indirectly, from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The parties agree to hold each other’s CONFIDENTIAL INFORMATION in strict confidence. The parties agree, unless required by law, not to make each other’s CONFIDENTIAL INFORMATION available in any form to any third party or to use each other’s CONFIDENTIAL INFORMATION for any purpose other than the implementation of this AGREEMENT. Each party agrees to take all reasonable steps to ensure that CONFIDENTIAL INFORMATION is not disclosed or distributed by its employees in violation of the terms of this AGREEMENT.
(b) Data Collection/Use of Data. In providing service to End USER, GEMALLY will collect data concerning printer usage and other technical data related to the services provided by GEMALLY to the End USER. Such data may be combined with data collected from other End USER’s and may be shared with third parties for analytical purposes and to provide support to End USER’s. In addition to printer usage and technical data, GEMALLY may also collect information relating to an identified or identifiable living individual (“Personal Data”). Personal Data will not be disclosed to third parties. To the extent permitted by applicable law, by accepting these terms and conditions you consent to the collection and use of technical data and Personal Data by GEMALLY as described in this EULA and as further described in GEMALLY’s privacy statement.
(c) Applicable Law. This AGREEMENT shall be governed by, interpreted and construed in accordance with the laws of the State of Washington without regard to choice of law principles. In the event of litigation or other proceedings by GEMALLY to enforce or defend any term or provision of this AGREEMENT, END-USER agrees to pay all costs and expenses sustained by GEMALLY, including, but not limited to, reasonable attorney’s fees. END-USER further agrees to litigate any dispute concerning this matter in the courts of the State of Washington, consents to jurisdiction in that forum, and waives the right to jury trial.
(d) Relationship of Parties. The parties are not agents or legal representatives of each other. The parties to this AGREEMENT are independent contractors. No relationship of principal to agent, master to servant, employer to employee or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
(e) Survival. The provision in this Section 7(e) along with the provisions in Sections 2(c), 2(d), 2(e), 3, 4, 6(c), 7(a), 7(c) and 7(f) shall survive termination of this AGREEMENT.
(f) Entire Agreement. This AGREEMENT constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, concerning the subject matter of this AGREEMENT. This AGREEMENT may not be modified or amended by END-USER, except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to modify this AGREEMENT. GEMALLY may, in its sole discretion, modify the terms of this Agreement at any time.
(g) Severability. If one or more provisions of this AGREEMENT are held to be unenforceable under applicable laws, such provisions shall be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.
(h) Enurement. The rights and obligations under this AGREEMENT shall enure to the benefit of and shall be binding upon the successors and assigns of the parties.
(i) Notice. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail or personal delivery (including overnight mail by private carrier) to the address first above written (which address may be altered upon written notice to END-USER).
(j) Waiver. The waiver by either party of any default or breach of this AGREEMENT shall not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of Pharos’s proprietary rights in the SOFTWARE, no action, regardless of form, arising out of this AGREEMENT may be brought by either party more than one (1) year after the cause of action has arisen.
(k) Export Administration. END-USER acknowledges that SOFTWARE is subject to the U.S. Export Administration Regulations (the “EAR”) maintained by the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”). END-USER agrees to comply with the EAR and applicable U.S. Government, EU and UN export and reexport laws, regulations and requirements. END-USER further certifies that END-USER will not export or reexport any SOFTWARE that may be subject to such laws, regulations and requirements, to any location, or to any end-user, or for any end-use, without first obtaining any export license, permit or other approval that may be required. Without limiting the foregoing, END-USER specifically agrees that END-USER will not export or reexport any software subject to export and reexport laws to (1) any Group E country listed in SUPPLEMENT NO. 1 TO PART 740 – COUNTRY GROUPS or (2) any person listed in BIS LISTS TO CHECK, or (3) for any end-use related to the development, production or use of nuclear, chemical or biological weapons or missiles. In addition, END-USER is responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use these products.