Followit (XWORK)

Subscription Service Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING OR USING THE FOLLOWIT SERVICE (“Followit” or the “Service”).

This Subscription Service Agreement (“Agreement“) is between You (“Subscriber”) and COMPUTER EXPERT GROUP, INC., D/B/A CEGsoft (“CEGSOFT”), a corporation organized under the laws of the Commonwealth of Puerto Rico.

This Agreement is a legal agreement between SUBSCRIBER and CEGSOFT pursuant to which the FollowIt Service (“Service”) is made available as a subscription to SUBSCRIBER. The Service, which is known as ‘FOLLOWIT’, or ‘XWORK’, allows the SUBSCRIBER access to an online portal where the server stores the Service and software code that allows multi-user management of any type of task, such as tasks, requests and correspondence. The Service may only be Used (as hereinafter defined) by SUBSCRIBER or Users (as hereinafter defined) for the purposes of internal multi-user case management as limited by this Agreement. By accessing the Service in any way, you, the User and/or SUBSCRIBER (“You”) agree to be bound by the terms and conditions of this Agreement. To be able to Use the Service, You, whether You are a SUBSCRIBER or a User, must express Your acceptance to be bound by the terms and conditions of this Agreement by clicking the “Agree/Accept” button. If you, whether You are a SUBSCRIBER or a User, do not agree to these terms and conditions, You may not access or Use the Service.

Notwithstanding anything to the contrary in this Agreement, acceptance of this Agreement before or without acceptance and/or without the provision, use, or acceptance of a Billing Document, as defined below, still binds SUBSCRIBER and all Users, if any, to: (a) this Agreement and (b) to pay to CEGSOFT the appropriate and current Fee for SUBSCRIBER in consideration of the Users.

It is SUBSCRIBER’s responsibility to ensure each an every User is aware of and accepts this Agreement.

1. Definitions

1.1 Defined Terms

The following capitalized terms, as used in this Agreement, shall have the meanings set forth below:

(a) “Billing Document” means any set of forms, website, pages, prompts and/or selection that allows SUBSCRIBER to select the version of the Service that the SUBSCRIBER wishes to access, the corresponding Fee to be incurred for using the same, alongside the number of Users permitted to Use the Service (or Free Service, if appropriate). The number of Users, if any, disclosed in the Billing Document shall be absolute and correspond to the number of natural persons that may Use the Service (or Free Service, if appropriate). Neither SUBSCRIBER nor User may transfer their subscription or right to Use the Service under this Agreement, except that SUBSCRIBER may assign a new user if a User becomes ceased to be an employee of SUBSCRIBER. If SUBSCRIBER has purchased a subscription that is limited to current employees, then any ex-employee may not use the Service.

(b) “Documentation” means explanatory written materials related to the Service, which may also be available as part of or accessible with the Service.

(c) “Effective Date” means the earliest date among the following: (1) the date SUBSCRIBER accepts this Agreement; or (2) the date when the Service is Used by SUBSCRIBER or any User.

(d)  “Fee” means the amount of money or other consideration as provided in a Billing Document and any other amount otherwise agreed by and between SUBSCRIBER and CEGSOFT for access to the Service as provided in Section 2, as applicable.

(e) “Free Service” means Business Service, but limited to 15 Users, up to 3 areas, and a 30 day trial of Business Service features.  (“Service” includes the “Free Service” in terms of obligations and limitations of the SUBSCRIBER and Users as provided in this Agreement).

(f) “Non-Business” means the description of non-business concerns. For clarity, “Non-Business” shall be descriptive of not being related to an ongoing concern with either a business, professional, or corporate objective. Generally, this shall relate to personal and outside-of-business scenarios.

(g) “Non-Commercial” means the description of non-commercial concerns. For clarity, “Non-Commercial” shall be descriptive of not being the object of a business or contract or service in which the Service is offered. Generally, this shall relate to outside-of-contract or outside-of-transaction (personal) scenarios.

(h) “Business Service” means the Service, with additional functionality or abilities not found or accessible through the Free Service after the initial 30 days trial, as they may be disclosed by CEGSOFT from time to time in its sole discretion. The Business Service does not include a server side component. The term “Service” includes “Business Service” in terms of obligations and limitations of the SUBSCRIBER and Users as provided in this Agreement. For example, the last paragraph in Section 1.3 shall also be interpreted and read as if it read “Business Service” in every instance that the word “Service” appears.

(i) “Programs” means the Service, the Business Service or the Free Service.

(j) “Use” or “User” means the ability to access the Server or any part or component thereof as provided by CEGSOFT, whether in partial or complete functionality, with a software as a service (Saas) version of the Service.

(k) “Users” means the employees or independent contractors of SUBSCRIBER authorized to Use the Service pursuant to the terms of this Agreement.

1.2 Additional Terms

Certain additional terms defined in various Sections of this Agreement are listed below with a reference to the Section in which each such term is defined:

1.3 Description of the Service

The Service refers to the current version of the software (or otherwise the version of the Service made available as the Service under this Agreement). Any improvement (including either an Update or Upgrade) to or new version by CEGSOFT of the Service shall require the acceptance by SUBSCRIBER and all Users of a new Agreement for continued Use and functionality of the Service, whether partial or full.

Subject to the terms and conditions of this Agreement, the Service is provided as software as a service (Saas) which may include a client side component, which installs and operates on computers or workstations or servers that will be used for regular operation and will virtually (or otherwise) connect to a server side component hosting the cases under management. The Service will be hosted by CEGSOFT and will be accessible to SUBSCRIBER through a data/internet connection that must be provided at SUBSCRIBER’s sole cost and responsibility.

In all instances, it is also SUBSCRIBER’s responsibility to provide the necessary operating systems and the hardware and equipment and their corresponding Service so that the Service may operate appropriately.

2. Grant of Rights

As provided in Sections 1.1(e) and 1.1(h), the following general limitations to the Service also apply to the Business Service and/or the Free Service, as the case may be.

There shall be three distinct levels of Use of the Service. CEGSOFT reserves all rights not granted in this Agreement.

First, the Service may be provided for purposes of demonstration of the Service’s capabilities and functionalities. CEGSOFT reserves the right to remove, limit, block, and demand a cease of access or Use to any person, including SUBSCRIBER and any User for Service provided for demonstration purposes at any time, and all other rights not granted herein. CEGSOFT gives no warranties or representations and shall have no obligations of any kind for provision of the Service for demonstration purposes.

Second, the Service may be made available as provided in this Agreement in Section 2.1.

Third, the Service may be made available as the Business Service (or the Free Service) as provided in Sections 2.2 and 2.3.

Any and all limitations described in Sections 2, 2.1, 2.2 or 2.3 shall be considered to limit the scope of the subscriptions granted therein.

Users are limited to Use the Service in accordance with the number of subscriptions obtained as per the Billing Document. Users may access the Service at any computer or workstation of their choosing provided they have the appropriate login credentials.

As applicable to Sections 2.1 to 2.3, whenever SUBSCRIBER has complied with the terms and conditions of this Agreement and the Billing Document (if applicable), CEGSOFT shall provide to SUBSCRIBER the Service limited to the number of Users (if applicable) and with any other limitation disclosed in the Billing Document and this Agreement. Subject to this Agreement, the functionality of any part of the Service which is otherwise limited by CEGSOFT shall only be available to SUBSCRIBER after registration and payment of the appropriate Fee.

2.1 Subscription

Subject to the proper acceptance of this Agreement and the corresponding Billing Document (selecting the Service described in Section 2.2 or 2.3 of this Agreement) by SUBSCRIBER and payment of the appropriate Fee (if applicable), CEGSOFT will grant to SUBSCRIBER, during the Term of this Agreement, access to SUBSCRIBER or Users, if any, to Use the Service for internal multi-user case management and with the functionality as set forth in the Billing Document, provided that each User is authorized by SUBSCRIBER and CEGSOFT. For a User to be authorized and allowed to Use the Service, both the SUBSCRIBER and the User must accept this Agreement. SUBSCRIBER shall be responsible to account for every User’s acceptance of this Agreement. Use of the Service as per the subscription granted herein shall be limited to using the Service as a software as a service (SaaS).  Full access and functionality to any part of the Service is not allowed without registration and payment of the Fee for such specific part of functionality of the Service. No other rights, implied or implicit, are made available to SUBSCRIBER. Use of the Service is subject to the terms and conditions of this Agreement. SUBSCRIBER and authorized Users will not acquire any ownership right, claim or interest in the Service by virtue of this Agreement or SUBSCRIBER and/or authorized Users’ use of the Service. Without limitation to the generality of the foregoing, limitation to functionality includes the limitation to the amount of Users allowed to Use the Service.

2.2 Business Service License

If SUBSCRIBER chooses the Business Service, then CEGSOFT only grants to SUBSCRIBER during the term provided in Section 4 of this Agreement a subscription to SUBSCRIBER to Use the Business Service for limited, internal multi-user case management and with the limited functionality as provided and controlled by CEGSOFT from time to time in its sole discretion.  Use of the Business Service as per the subscription granted herein shall be limited to using the software as a service (SaaS) as provided in the Billing Document and as limited and provided by CEGSOFT.  No other rights, implied or implicit, are granted to SUBSCRIBER. Use of the Business Service is subject to the terms and conditions of this Agreement. SUBSCRIBER will not acquire any ownership right, claim or interest in the Service by virtue of this Agreement or SUBSCRIBER’s use of the Business Service.

The term of the subscription to the Business Service as provided in Section 4 shall only be renewed as provided in said Section 4.

2.3 Free Service License

If SUBSCRIBER chooses the Free Service, then CEGSOFT only grants to SUBSCRIBER a subscription to allow SUBSCRIBER to Use the Free Service for the limited, internal multi-user case management functionality as provided and controlled by CEGSOFT. Use of the Free Service as per the subscription granted herein shall be limited to using the software as a Service as a service (SaaS) as may be provided in the Billing Document and as limited as provided by CEGSOFT from time to time in its sole discretion.  No other rights, implied or implicit, are granted to SUBSCRIBER. Use of the Free Service is subject to the terms and conditions of this Agreement. SUBSCRIBER will not acquire any ownership right, claim or interest in the Service by virtue of this Agreement or SUBSCRIBER’s use of the Free Service.

3. SUBSCRIBER and Users’ Negative Covenants:

The software made available through the Service and its corresponding Documentation are protected by United States copyright laws and international treaties. SUBSCRIBER and Users must treat the Service and Documentation like any other copyrighted material. SUBSCRIBER and Users expressly agree that they may not:

• use the Service outside the scope of the subscription granted under Section 2 of this Agreement,

• copy the underlying source code, modules or software that constitutes the Service,

• modify or adapt the Service or any part of the software underlying the same, or merge it or part of it into another program or platform,

• reverse engineer, disassemble, decompile or make any attempt to discover the source code of the software that is made available through the Service,

• delete or modify Copyright notices and other proprietary rights and notices in the Service,

• copy any source code or module of the software that is made available through the Service onto a server so that it is accessible via a public network such as the Internet, or otherwise make the Service, or any part thereof, publicly accessible,

• give access to the Service to unauthorized Users or third parties,

• subsubscription, rent, lease, lend or otherwise transfer, directly or indirectly, any portion of the Service to any third party,

• create derivative works of the Service or of the software made available through the same, and/or

• publish, distribute or disseminate the Service via the Internet or other public computer based information system.

SUBSCRIBER shall be responsible for ensuring compliance with the terms of this Agreement by each of the Users as if every one of them executed this Agreement.

The language in this section will be understood to not expand and to limit the scope of any subscription granted in this Agreement.

4. License Term

This Agreement shall be effective as of the Effective Date and shall be in effect for the term specified in the Billing Document (the “Term”). Notwithstanding the foregoing, the Term of the subscription for the Business Service and the Free Service shall be one (1) month from the date on which this Agreement is accepted. After such Term expires, SUBSCRIBER must renew the subscription in order to be eligible for technical support and Service Updates. The Term shall only be renewed if SUBSCRIBER submits the information required by CEGSOFT, pay the then applicable Fees and takes any other steps as may be required by CEGSOFT in connection with the renewal of the subscription. CEGSOFT is under no obligation to renew any subscription and makes no representations with regard to renewing subscriptions.

The Service or any part thereof may operate, at CEGSOFT’s sole discretion, pursuant to a product authorization code which, when applied, will allow the Service or any part thereof to operate for its designated purpose, or until CEGSOFT terminates this Agreement because of SUBSCRIBER’s failure to comply with any of the terms of this Agreement. For example, a product authorization code may provide for a certain number of Users or a certain number of client side installations of the Service to connect to the server side installation of the Service.

5. Fees

As consideration to obtain access to or Use any limited functionality of any part of the Service, SUBSCRIBER agrees to pay CEGSOFT the appropriate Fee for such specific functionality or part of the Service.

Fees may be automatically collected, if both parties desire, through credit cards or other mechanisms, as they may be provided in the Billing Document. Any party may withdraw their acceptance to automatic payments at any time.

6. Modifications and Enhancements

For purposes of this Agreement, an “Update” shall mean one or more fixes, repairs, or standardizations, or other minor changes to the Service, whereas an “Upgrade” shall mean a new release or version of the Service, or the addition to the Service of a new functionality, or the change of a functionality, or a major change to the Service. The definition of Service does not include Upgrades. However, the Users of the Service will be entitled to all Updates and Upgrades during the Term of this Agreement.

SUBSCRIBER agrees that CEGSOFT may modify the Service, this Agreement and/or the Billing Document if necessary to comply with any other agreements that CEGSOFT is currently bound by or will be bound by in the future, and/or with applicable law, as well as to adjust to changing business circumstances. SUBSCRIBER’s continued use of the Service shall constitute its acceptance of this Agreement and the Billing Document with the given modifications. If SUBSCRIBER does not agree to any of such changes, it may terminate this Agreement and immediately cease all access to and Use of the Service, or the certain parts or products of the Service involved in the modifications, with a corresponding reduction in fees associated with such parts of the Service as agreed to by CEGSOFT. CEGSOFT may use any reasonable medium, including email or any other electronic medium, to notify any changes or modifications pursuant to this paragraph.

7. Technical Support

This Section 7 shall only inure to the benefit of SUBSCRIBER to the Business Service, as respectively provided in Section 2.2.

CEGSOFT will make reasonable efforts, either by telephone or Internet, to help SUBSCRIBER solve specific problems in connection with the Use or management of the Service.  It may not be possible to solve all problems or correct all errors in the Service.  During ongoing Service development or maintenance, CEGSOFT may add, modify or delete functionality in the Service, new releases, Updates, or Upgrades.  

Generally, there shall be no technical support outside of Working Hours. Technical support is not guaranteed to be available during Working Hours. For purposes of this Agreement, “Working Hours” are from 9:00 AM until 6:00 PM Atlantic time (time in Puerto Rico), Monday through Friday, except on holidays, including both federal and local holidays. Technical support does not cover questions about design standards, development methods, basic operations and other general topics that are intended to be covered by attending training classes or reading the Documentation.

The Service may provide links to other World Wide Web sites or resources. You acknowledge and agree that CEGSOFT is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. SUBSCRIBER further acknowledges and agrees that CEGSOFT shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

8. Intellectual Property Rights

CEGSOFT owns all right, title and interest in and to the software made available through the Service (or is otherwise duly licensed to subscribe to this Agreement), including, but not limited to, the entire exclusive copyright and all other intellectual property rights, all rights of commercialization, rental or sale of the Service or any part thereof, including the software that is made available through the same, all rights to make derivative works of the software that is used within the Service, and all rights to distribute the Service. This Agreement does not convey any proprietary rights or other interest in the Service nor any trademarks and service marks related thereto to CEGSOFT. By executing this Agreement and paying the applicable Fee to CEGSOFT SUBSCRIBER obtains the limited subscription for authorized Users to Use the Service as set forth in Section 2 of this Agreement. Any other use of the Service by any person, business, corporation, government, organization or any other entity is strictly prohibited and is a material violation of this Agreement.

9. Termination

CEGSOFT shall have the right to immediately terminate this Agreement for: (a) SUBSCRIBER and/or any of the Users breach of any clause, term, condition, or scope of the applicable subscription in this Agreement and/or (b) if SUBSCRIBER and/or the User fail to perform any obligation required under this Agreement and/or the Billing Document or becomes bankrupt or insolvent.  Sections 1, 3, 8, 10, 11, 12, 13, 14, 15 and 16 shall survive the expiration or earlier termination of this Agreement.

10. WARRANTY

THE SERVICE PROVIDED UNDER THIS AGREEMENT IS PROVIDED ON AN “AS IS” BASIS. SUBSCRIBER AGREES THAT THE SERVICE IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHERMORE, CEGSOFT DOES NOT MAKE ANY WARRANTIES OF ANY KIND WITH RESPECT TO LOSS OR CORRUPTION OF DATA, LOSS OR DAMAGE TO EQUIPMENT AND/OR SERVICE, SYSTEM RESPONSE TIMES, TELECOMMUNICATION LINES OR OTHER COMMUNICATION DEVICES, QUALITY, AVAILABILITY, RELIABILITY, SECURITY ACCESS DELAYS OR ACCESS INTERRUPTIONS, NOR COMPUTER VIRUSES, BUGS OR ERRORS. CEGSOFT DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE WILL NOT BE INTERRUPTED OR ERROR FREE OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE AND CEGSOFT ASSUMES NO RESPONSIBILITY. CEGSOFT, ITS AFFILIATES, AND THEIR RESPECTIVE REPRESENTATIVES ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY LIABILITY FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM SUBSCRIBER OR STORED BY SUBSCRIBER VIA THE SERVICE PROVIDED BY CEGSOFT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY CEGSOFT’S REPRESENTATIVES WILL CREATE A WARRANTY; NOR MAY THE SUBSCRIBER RELY ON ANY SUCH INFORMATION OR ADVICE.

Paying for SUBSCRIBER’s, User’s, or any third parties internet access is not CEGSOFT’s responsibility. Any charges and fees by internet service providers is SUBSCRIBER’s and/or User’s sole responsibility. CEGSOFT does not warrant the availability, quality, service, operability, or any other aspect of the internet connectivity and service provided by any internet service providers.

11. Infringement

If CEGSOFT receives notice of an intellectual property infringement claim or otherwise concludes that the Service or the software that is made available through the Service, may infringe the proprietary rights of a third party, SUBSCRIBER will allow CEGSOFT, to (i) procure the right for SUBSCRIBER to continue using the Service, (ii) modify or replace the Service to make them non-infringing, without adversely affecting their operating specifications, or (iii) if CEGSOFT determines that neither (i) nor (ii) is practicable, terminate SUBSCRIBER’s subscription (and thus authorized User’s right) to use the infringing Service and accept its return against payment of the unaccrued portion, if any, of the then current applicable Fee, if any.

CEGSOFT will have no obligation to SUBSCRIBER under this Section 11 if the patent, copyright or trade secret infringement claim is based on (i) a modification of the Service not made or authorized by CEGSOFT, (ii) the combination of the Service with an item not supplied by CEGSOFT, or (iii) use of the Service in a manner not intended by the Documentation.

THE RIGHTS GRANTED TO THE SUBSCRIBER UNDER THIS SECTION 11 WILL BE THE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED AND/OR ACTUAL INFRINGEMENT BY CEGSOFT HEREUNDER OF any intellecutal property rights, including without limitation ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT, OR FOR ANY BREACH OF THE WARRANTY GIVEN IN SECTION 10.

12. LIMITATION OF LIABILITY AND INDEMNITY

IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY PROVIDED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY ANY LEGAL REQUIREMENT, CEGSOFT, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS, ROYALTIES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICE, EQUIPMENT OR SOFTWARES, OR ANY OTHER BUSINESS OR OTHER ECONOMIC LOSS ARISING FROM OR RELATED TO: (1) THE SERVICE, (2) THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, (3) ANY EQUIPMENT OR SOFTWARE NOT PROVIDED BY CEGSOFT, (4) ANY SOFTWARE, INCIDENTAL OR OTHERWISE, PROVIDED BY THIRD PARTIES AND (5) ANY THIRD PARTY CLAIM: (I) WHETHER FOR, AMONG OTHER THINGS, SUBSCRIBER’S AND/OR USER’S NEGLIGENCE OR MISCONDUCT, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM; (II) WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY); (III) WHETHER OR NOT FORESEEABLE; AND (IV) WHETHER OR NOT CEGSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

IN NO EVENT WILL CEGSOFT’S TOTAL LIABILITY TO SUBSCRIBER IN ANY ACTION, WHETHER IN CONTRACT OR TORT, EXCEED THE AMOUNT OF THE THEN CURRENT FEE, IF ANY. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY LIMITED REMEDY PROVIDED HEREIN. SUBSCRIBER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL ITS ESSENTIAL PURPOSE.

The foregoing sets forth SUBSCRIBER’s exclusive remedy for breach of this Agreement by CEGSOFT. The provisions of this section allocate the risks between CEGSOFT and SUBSCRIBER and CEGSOFT’s pricing reflects the allocation of risk and limitation of liability specified herein.

SUBSCRIBER hereby agrees to indemnify, defend, protect and hold harmless CEGSOFT, its affiliates and their respective Representatives (as hereinafter defined), suppliers, sub-contractors and permitted assigns, successors in interest, (collectively the “CEGSOFT Indemnitee”) from and against any claim, demand, liability, damage, losses, judgments, suit, action, or cause of action, costs and expenses (including, without limitation, legal fees, court filing fees and costs, document production, depositions and interrogatories) suffered by, or asserted against, such CEGSOFT Indemnitee directly or indirectly in relation to or arising from: (a) any breach of this Agreement by SUBSCRIBER; (b) any claim brought by any third party against a CEGSOFT Indemnitee based on SUBSCRIBER’s use of the Service; (c) CEGSOFT’S compliance with SUBSCRIBER’s specifications or instructions; (d) the use of the Internet or the placement or transmission of any materials on the Internet by SUBSCRIBER or authorized Users; (e) claims for infringement of any third party intellectual property rights, arising from the use of any software, Service, or systems not provided by CEGSOFT; (f) any inaccurate statement or representation made by SUBSCRIBER in and/or in connection with this Agreement; (g) CEGSOFT’S use of intellectual property or data supplied by SUBSCRIBER; and (h) acts or omissions of SUBSCRIBER and/or any authorized User in connection with the installation, maintenance, presence, use or removal of equipment or Service or service not provided by CEGSOFT, as well as for damage to, or loss of use of property of third parties and/or injury or death of any person to the extent that such damage, injury or death is caused by the negligent act or omission of SUBSCRIBER and/or authorized User in connection with SUBSCRIBER and/or authorized User’s performance under this Agreement.

13. Confidentiality

SUBSCRIBER acknowledges that confidential and proprietary information (“Confidential Information”) of CEGSOFT is contained and forms part of the Service and the Documentation. As such, CEGSOFT may be willing to share such Confidential Information provided that the Confidential Information is protected. For purposes of this Agreement, Confidential Information will mean all confidential or proprietary data, information, know how and documentation not generally known to the public and any and all tangible embodiments thereof, including but not limited to, that which relates to finances, agreements, intellectual property, products, services, technology, Service, systems, suppliers, clients marketing, engineering, research, operations, pricing, subscriptions and copies or portions thereof, whether or not disclosed or designated as proprietary, confidential or otherwise.

SUBSCRIBER agrees to protect and hold and to cause all authorized Users to protect and hold all Confidential Information in strict confidence and to take all reasonable steps necessary to protect the Confidential Information from unauthorized and/or inadvertent disclosure. Unless in receipt of specific written exemption from CEGSOFT, SUBSCRIBER and authorized Users will not: (a) use any of the Confidential Information for any purpose other than to perform its obligations under this Agreement for which the Confidential Information is being disclosed; (b) disclose any of the Confidential Information other than to its employees, officers, directors, consultants, or agents (collectively “Representatives”) who have a reasonable need-to-know to perform their duties under this Agreement, and only to do so when the Representatives have agreed to be bound by the confidentiality provisions of this Agreement; (c) reproduce the Confidential Information for any purpose unless it is necessary to perform its obligations hereunder; nor (d) remove any proprietary right legends from the Confidential Information.

In the event of any court order or legal action requiring SUBSCRIBER to disclose Confidential Information, SUBSCRIBER agrees to give immediate verbal and written notification of the order or action to CEGSOFT, and to the extent allowable under the law and at the expense of CEGSOFT, hold the Confidential Information while CEGSOFT seeks a protective order. Upon the request of CEGSOFT, SUBSCRIBER will promptly return or destroy all Confidential Information belonging to CEGSOFT, including all copies thereof. Furthermore, SUBSCRIBER agrees and acknowledges that any violation of its obligation of confidentiality herein will result in irreparable injury to CEGSOFT and that, in addition to any other remedies that may be available, in law, at equity or otherwise, CEGSOFT will be entitled to seek injunctive relief against the threatened breach of this obligation, or the continuation of any such breach, without the necessity of proving actual damages or posting a bond or any other security.

SUBSCRIBER agrees that if will not export, re-export, divert, transfer, or disclose, directly or indirectly, the Service or any related technical information, documents, or materials, or any direct product thereof, from the country of delivery or to any person who is not a national or resident thereof, without the prior written approval of CEGSOFT and obtaining any required re-exportation subscription from the United States government. The obligations of this Section will survive termination of this Agreement.

14. Attorney Fees

If any legal action is necessary to enforce this any provision of this Agreement, CEGSOFT shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.

15. Tax Matters

The contracting parties expressly agree that SUBSCRIBER shall, in addition to other amounts payable under this Agreement, pay all local, state, and federal taxes (but excluding taxes imposed on CEGSOFT’s net income) levied or imposed by reason of the transactions contemplated in this Agreement. SUBSCRIBER shall promptly pay to CEGSOFT an amount equal to any such taxes actually paid or required to be collected or paid by CEGSOFT.

16. General Provisions

(a) Complete Agreement: This Agreement together with all schedules or other attachments, including, but not limited to the Billing Document, which is incorporated herein by reference, is the sole and entire Agreement between the parties. In the event of any contradiction and/or inconsistency between this Agreement and the Billing Document, the terms of the Billing Document shall prevail over the terms of this Agreement. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter, whether in verbal or written form.  The parties represent that they have read and understand the entire content of this Agreement, and they hereby accept it, acknowledging that the same has been drafted to their full satisfaction, and that it properly reflects their agreements and understandings.  

(b) Applicable Law: This Agreement will be exclusively governed by, and construed in accordance with the laws of the Commonwealth of Puerto Rico, without regard to its conflict of law provisions.  Also, the contracting parties expressly agree that the Puerto Rico courts or the U.S. District Court for the District of Puerto Rico shall be the exclusive courts of competent jurisdiction which may decide over judicial controversies that the parties may have among them regarding the terms and conditions of this Agreement.  The parties agree to use their best efforts to mutually resolve any dispute arising under this Agreement.

(c) Assignment: The rights conferred by this Agreement shall not be assignable by the SUBSCRIBER without CEGSOFT’s prior written consent. CEGSOFT may impose a reasonable subscription fee on any such assignment.

(d) Severability: The parties hereto intend all provisions of the Agreement to be enforced to the fullest extent permitted by law. Accordingly, should a court of competent jurisdiction determine that the scope of any provisions is too broad to be enforced as written, the parties intend that the court should reform the provision to such narrower scope as it determines to be enforceable. If any provision of this Agreement shall be held illegal, invalid or unenforceable under present or future law by a court of competent jurisdiction, such provision shall be severed from this Agreement and shall not affect the validity of this Agreement as a whole or any of its provisions.

(e) Headings:  Section headings in this Agreement are included herein for convenience or reference only and shall not constitute a part of this Agreement.

(f) No Waiver of Rights:  If either party fails to give notice or enforce any right under this Agreement, such failure will not constitute a waiver of such right, unless such waiver is reduced to writing and signed by the waiving party. If a party waives its right in writing, such waiver will not constitute a waiver of any other right or of any subsequent violation of the same right that has been waived.

(g) Notices: Every notice according to this Agreement will be in written form and will be sent by mail to the addresses first mentioned above.  Any party can, from time to time, assign a new address through written notification to the other party.

(h) Time Limitation on Actions: No party may commence an action under this Agreement more than one (1) year after the occurrence of an event of default, or in the event such default is not discoverable by the injured party when it has occurred, more than one (1) year after such default could, and in the exercise of due diligence, would have been discovered.

(i) Force Majeure. CEGSOFT will not be liable or responsible to you, nor be deemed to have defaulted under or breached this Agreement, and will be excused from performance in the event of any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond CEGSOFT’S reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, by requirement of law, regulation, order or other governmental action, failure of energy sources, data networks, or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions or other industrial disturbances, systemic electrical, telecommunications, or other utility failures.