# Semarchy End-User License And Support Agreement ("Agreement" or "Subscription")

Do not install or use the Software until you (the "Customer") have read and accepted all of the license terms. Permission to use the Software is conditional upon your agreeing to the license terms. Installation or use of the Software by you will be deemed to be acceptance of the license terms. When you install the Software, the Licensor is Semarchy Inc. Acceptance will bind you to the license terms in a legally enforceable contract with Semarchy Inc. Semarchy Inc. is hereinafter referred to as "Semarchy".

NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained in this Agreement and other valuable and adequate consideration, receipt of which is hereby acknowledged, Semarchy and Customer agree as follows:

1. DEFINITIONS

"Affiliate" means any entity, now or hereafter existing (so long as such entity does not have its own agreement with Semarchy for use of the Software or access and use of the Semarchy’s Support Services) that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "control" means direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. An entity shall be considered an "Affiliate" only so long as that entity meets the foregoing definition.

"Authorized Purposes" means Customer’s internal business purposes if the License Term is not for an Evaluation License. If the License Term is for an Evaluation License, then "Authorized Purposes" means Customer’s internal testing and evaluation use only.

"Delivery Date" means the date, set forth in the applicable Order Form, on which the Software is scheduled to be made available to Customer.

"Documentation" shall mean owner's manuals, user's manuals, installation instructions, operating instructions and other similar items regardless of storage medium that explain the capabilities of the Software or provide instructions for using the Software.

"Evaluation License" means a non-production license granted to Customer with respect to the Software for the limited period of time specified in the Order Form.

"Intellectual Property Rights" means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

"License Term" means the license period for Customer’s use of the Software set forth in an Order Form. Unless otherwise specified in the applicable Order Form, the License Term for an Evaluation License is limited to Thirty (30) days from the Delivery Date.

"Open Source Software" means all software that is available under any license approved by the Open Source Initiative (www.opensource.org). Open Source Software components are licensed under the terms of their respective license agreements and not under the terms of this Agreement.

"Order Form" means the ordering documents for Services and licenses for Software purchased from Semarchy that are executed hereunder by the parties from time to time, including modifications, supplements, and addend thereto.

"Software" means the version of the software product specified in the Order Form and any software that Semarchy provides to Customer in accordance with Support Services that Customer is entitled to receive pursuant to this Agreement, all in object code form only.

"Support Services" means the support and maintenance services offered by Semarchy and purchased by Customer separately pursuant to an Order Form. For the avoidance of doubt, Support Services are included with the annual subscription form of license.

"Third Party" shall mean any person or person, firms or corporations other than Semarchy or the Customer, and shall include, but not be limited to, Customer's subcontractors and agents.

"Users" means Customer’s or its Affiliates’ employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Software during a License Term have been purchased pursuant to an Order Form, (b) who are authorized by Customer or its Affiliates to access and use the Software, and (c) where applicable, who have been supplied user identifications and passwords for such purpose by Customer.

2. LICENSE GRANT

2.1 Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Semarchy hereby grants to Customer, during the relevant License Term, a limited, non-exclusive, non-transferable right to use the Software solely for Customer’s Authorized Purposes for the number of Base Objects as defined and set forth in the Order Form and not for the benefit of any other person or entity. Customer’s use of the Software may be subject to certain limitations as specified either in the Order Form or in the Documentation. Customer further acknowledges that Software includes third parties Open Source Software which is licensed under the terms of their respective license agreements, and not under the terms of this Agreement. For the avoidance of doubt, all third-party Open Source Software included with the Software is listed and regularly updated at https://www.semarchy.com/doc/semarchy-xdi/license.html.

2.2. Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to:

(a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software;

(b) modify, translate, or create derivative works based on any element of the Software or any related Documentation;

(c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Software; or

(d) remove any proprietary notices from the Documentation.

2.3. Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer. All rights not granted in this Agreement are reserved by Semarchy.

3. CUSTOMER OBLIGATIONS

3.1. Customer System. Customer is responsible for

(a) obtaining, deploying, and maintaining all computer hardware, software, modems, routers and other communications equipment necessary for Customer, its Affiliates and their respective Users to use the Software; and

(b) paying all third-party fees and access charges incurred in connection with the foregoing.

Except as specifically set forth in this Agreement, or an Order Form, Semarchy shall not be responsible for supplying any hardware, software, or other equipment to Customer under this Agreement.

4. MAINTENANCE AND SUPPORT SERVICES

4.1. Maintenance and Support Services Term. When a Customer has a valid, active and renewed maintenance or subscription, Semarchy will provide Support Services, Software patches, and upgrades in accordance with published support policies (the "Support Documentation") found at: https://www.semarchy.com/global-support-policy/

4.2. Evaluation. No maintenance or support services are offered or made in connection with this Agreement if the License Term is for an Evaluation License. Semarchy has no obligation to support or maintain the Software during the License Term of any Evaluation License in any way, correct any errors or deficiencies in the Software or provide updates, new builds, or error corrections.

5. REPORTS, RECORDS AND INSPECTIONS

Customer shall at all times maintain adequate records specifically identifying the Software licensed hereunder, the location of each copy thereof, the location and configuration of the Equipment on which the Software is installed, and the license fee and license support fees due hereunder. Such records shall be available for inspection by Semarchy during regular business hours upon reasonable advance notice for the purposes of enforcement of the terms and conditions of this Agreement. Semarchy shall be granted reasonable access, during regular business hours to Customer's premises as necessary to audit compliance with this Agreement.

6. WARRANTY

6.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that:

(a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and

(b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

6.2. Software Warranty. Unless otherwise set forth in the applicable Order Form, Semarchy warrants that during the period of ninety (90) days after the Delivery Date (the "Warranty Period"), the Software will function substantially in conformance with the Documentation. If Customer becomes aware of the Software not functioning in substantial conformance with the Documentation (a "Defect"), Customer must provide Semarchy with written explanation of the Defect within the Warranty Period. Semarchy will use commercially reasonable efforts to promptly correct the Defect or provide a replacement software product to Customer with substantially similar functionality, or at Semarchy’s option, terminate the License Term for the defective Software and refund to Customer the fees paid for that defective Software (as well as any fees paid for any Support Services not received). THE FOREGOING SETS FORTH SEMARCHY’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE SOFTWARE.

6.3. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 6, THE SOFTWARE, SUPPORT SERVICES, CONSULTING AND TRAINING SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SOFTWARE, SUPPORT SERVICES, CONSULTING AND TRAINING SERVICES IS AT ITS OWN RISK. SEMARCHY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY SEMARCHY IN SECTION 6 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED BY SEMARCHY PURSUANT TO THIS AGREEMENT IS LICENSED AND NOT SOLD. NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE LICENSE TERM OF ANY EVALUATION LICENSE.

NO AGENT OF SEMARCHY IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SEMARCHY AS SET FORTH HEREIN. SEMARCHY DOES NOT WARRANT THAT: (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (C) THE SOFTWARE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED OTHER THAN AS SET FORTH IN THE SUPPORT DOCUMENTATION.

7. PATENT/COPYRIGHT INDEMNIFICATION

7.1 General. During the License Term (other than with respect to an Evaluation License), Semarchy, at its expense, shall defend Customer and its Affiliates and their respective officers, directors and employees (the "Customer Indemnified Parties") from and against all actions, proceedings, claims and demands by a third party (a "Third-Party Claim") alleging that the Software infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Semarchy’s obligations under this Section are conditioned upon (i) Semarchy being promptly notified in writing of any claim under this Section, (ii) Semarchy having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Semarchy’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Semarchy’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Semarchy’s right to control the defense and settlement.

7.2 Mitigation. If any claim which Semarchy is obligated to defend has occurred, or in Semarchy’s determination is likely to occur, Semarchy may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Software, (b) substitute a functionality equivalent, non-infringing replacement for such the Software, (c) modify Software to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Software due to such claim and the remaining days in the then-current License Term.

7.3 Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) use of the Software in combination with any software, hardware, network or system not supplied by Semarchy where the alleged infringement relates to such combination, (ii) any modification or alteration of the Software other than by Semarchy, and (iii) Customer’s continued use of the Software after Semarchy notifies Customer to discontinue use because of an infringement claim.

7.4 Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SEMARCHY WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SOFTWARE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SEMARCHY WITH RESPECT THERETO. NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE. NOTWITHSTANDING THE ABOVE, THE CUSTOMER HAS THE RIGHTS AS STATED IN SECTION 12 OF THIS AGREEMENT – LIMITATION OF LIABILITY.

8. INDEMNIFICATION BY CUSTOMER

Customer shall defend Semarchy and its Affiliates, licensors and their respective officers, directors, and employees ("Semarchy Indemnified Parties") from and against any and all Third-Party Claims which arise out of or relate to:

(a) Customer’s use or alleged use of the Software other than as permitted under this Agreement, or

(b) arising from the occurrence of any of the exclusions set forth in Section 7.3.

Customer shall pay all damages, costs, and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon

(c) Customer being promptly notified in writing of any claim under this Section,

(d) Customer having the sole and exclusive right to control the defense and settlement of the claim, and

(e) Semarchy providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim.

In no event shall Semarchy settle any claim without Customer’s prior written approval. Semarchy may, at its own expense, engage separate counsel to advise Semarchy regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.

9. CONFIDENTIALITY

9.1. Confidential Information. "Confidential Information" means any and all non-public technical and non-technical information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to:

(a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable);

(b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information;

(c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and

(d) the terms of this Agreement and any Order Form.

Confidential Information of Semarchy shall include the Software, the Documentation, the pricing, and the terms and conditions of this agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.

9.2. Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, Affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

9.3. Exceptions to Confidential Information. The obligations set forth in Section 9.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which:

(a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party;

(b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or

(c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.

Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall

(d) assert the confidential nature of the Confidential Information to the agency;

(e) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and

(f) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

9.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

10. TITLE

The Software (including any modifications, enhancements or derivative works) and any and all partial or complete copies are and shall remain the sole property of Semarchy. In no event shall any term of this Agreement be construed to require the transfer of title to Customer of any of Semarchy's Software.

11. TERM AND TERMINATION

11.1. Term. The term of this Agreement commences on the Effective Date and continues until the expiration or termination of all License Term(s), unless earlier terminated as provided in this Agreement. License Terms (other than for Evaluation Licenses) for all Users shall automatically renew for additional periods equal to the expiring License Term unless either party gives written notice of non-renewal at least Thirty (30) days prior to the expiration of the then current License Term. Such non-renewal, however, is not permitted during a commitment period or as otherwise specified in the applicable Order Form. Evaluation Licenses will terminate at the end of their respective License Term unless the parties enter into an Order Form for a new License Term.

11.2. Termination for Cause. A party may terminate this Agreement (and all License Term(s)) upon written notice to the other party in the event the other party

(a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or

(b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree.

11.3. Termination for Convenience. Unless otherwise set forth in the Order Form, Customer may terminate this Agreement for convenience on 60 days’ notice. Such termination will not affect licenses granted on a time-bound basis will continue for the duration of such paid period(s), subject to the terms of this Agreement. Semarchy will not provide refunds or credits for any partial subscription or maintenance period(s) if the Agreement or an Order Form is terminated. Notwithstanding the foregoing, if the Order Form references a "commitment", the Agreement cannot be terminated for convenience as set forth in this Section 11.3 during such commitment period.

11.4. Effects of Termination. In addition, upon expiration or termination of this Agreement,

(a) Customer’s use of and access to the Software and Semarchy's performance of all Support Services shall cease;

(b) all fees and other amounts owed to Semarchy throughout the remainder of the License Term shall be immediately due and payable by Customer, including without limitation, all fees incurred by Consulting Services or Training completed; and

Within ten (10) days of the effective date of termination each Receiving Party shall:

(c) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and

(d) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.

12. LIMITATION OF LIABILITY

12.1. NO CONSEQUENTIAL/INDIRECT DAMAGES. NEITHER SEMARCHY NOR ITS LICENSORS OR SEMARCHYS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SEMARCHY OR ITS LICENSORS OR SEMARCHYS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SOFTWARE, CONSULTING AND TRAINING SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF. THE FOREGOING SENTENCE SHALL NOT APPLY TO LIMIT DAMAGES ARISING OUT OF (I) EITHER PARTY'S INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTIES INTELLECTUAL PROPERTY RIGHTS, (II) CUSTOMER'S BREACH OF SECTION 2 (LICENSE GRANT), OR (III) EITHER PARTY'S BREACH OF SECTION 9 (CONFIDENTIALITY). SEMARCHY WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

12.2. LIMITS ON LIABILITY. NEITHER SEMARCHY NOR ITS LICENSORS OR SEMARCHYS SHALL BE LIABLE FOR ANY OTHER CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.

12.3. EXCLUSIONS. THE FOREGOING SENTENCE SHALL NOT APPLY TO LIMIT DAMAGES ARISING OUT OF (I) EITHER PARTY'S INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTIES INTELLECTUAL PROPERTY RIGHTS, (II) CUSTOMER'S BREACH OF SECTION 2 (LICENSE GRANT), OR (III) EITHER PARTY'S BREACH OF SECTION 9 (CONFIDENTIALITY), OR (IV) FOR FRAUD OR WILFULL INTENT.

12.4. ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE.

13. MISCELLANEOUS

13.1. Notices. All notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier confirmation of delivery. Notices to Semarchy must be sent to the address or email stated in this Agreement or associated order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices.

13.2. Governing Law, Dispute Resolution. This agreement, and all matters arising out of or relating to this agreement, shall be governed by US and California law. The exclusive jurisdiction over all disputes between the parties relating to the validity, interpretation and execution of this agreement are the state and federal courts located in San Mateo County, CA.

13.3. Publicity. Semarchy has the right to reference and use Customer’s name and trademarks and disclose the Software provided hereunder in each case in Semarchy business development and marketing efforts, including without limitation Semarchy’s web site.

13.4. License Compliance. Upon 45 days written notice, Semarchy, at its own cost, may verify Customer’s license compliance. Customer agrees to cooperate and provide reasonable assistance and access to information. Customer agrees to pay, within 30 days of written notice, any fees applicable to Customer use of the programs in excess of existing license rights, otherwise Semarchy can end Customer’s technical support, licenses and/or this Agreement. Customer agrees that Semarchy shall not be responsible for any Customer costs related to the license compliance review.

13.5. Waiver. No term or provision of this Agreement shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent or waiver to a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

13.6. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

13.7. Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate of Semarchy, without prior notice, of any rights Semarchy may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

13.8. Relationship of the Parties. Semarchy is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.

13.9. Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.

13.10. Entire Agreement. This Agreement, including all applicable Order Forms, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

Semarchy includes the following third party licenses: notice.html