End User License Agreement for Tohoom Software
This LICENSE AGREEMENT (this “Agreement”)  provides the terms and conditions your company (“Licensee”) accepts to use Tohoom’s (“Licensor”) offer. 
RECITALS
Licensor owns and supports the Stakeholder Lifecycle Management software system, which consists of the Microsoft ISV solution which exists on Microsoft's AppSource.
AGREEMENT
In consideration of the mutual promises in this Agreement, and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which is acknowledged, the parties agree as follows:
1.	Definitions
1.1.	“Application” refers to the present and future Tohoom Stakeholder Lifecycle Management programs and any associated documentation, instructions, user guides, software code or other materials made available by Tohoom and subsequent releases and updates.
1.2.	“Confidential Information” means all proprietary, non-public and trade secret information relating to Tohoom’s business, the Application, and other proprietary information including without limitation Tohoom’s research and development, marketing and business strategies and plans, the identity of clients and personnel thereof, computer programs, algorithms, names and expertise of employees and consultants, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies, and any/all other Tohoom information and/or data in any way transmitted to or received by You. 
1.3.	 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other proprietary intellectual property rights recognized in any country or jurisdiction in the world.
1.4.	“Proprietary Technology” means the Application, any Application tools, specifications, ideas, concepts, know-how, processes, and techniques used or developed by Tohoom and/or its third party contractors, relating to Tohoom Stakeholder Lifecycle Management.
1.5.	“Service” means the Microsoft online service, including offline components.
1.6.	“User” or “Users” means Licensee, its employees, representatives, consultants, contractors or agents who are authorized by Licensee to use the Application, and for whom Licensee has paid Licensor the applicable license fees for such use, as applicable. 
1.7.	“User” or “Users” means Licensee’s user.
2.	License and Ownership.
2.1.	Rights Granted. 
Subject to the terms and conditions of this Agreement, including but not limited to all payment and reporting obligations, Licensor grants Licensee a nonexclusive, non-transferable, license to use the Application solely for use with the Service, for Licensee’s internal business purposes only, and solely for the number of licenses purchased by Licensee. Any Order Form(s) issued by Licensor under this Agreement shall be deemed by the parties to incorporate all the terms and conditions of this Agreement, and Licensee agrees that, by accepting such Order Form(s) under this Agreement, it has accepted all such terms and conditions. The total number of FLSMs & SLSMs using the Application shall be limited by the total number of FLSMs & SLSMs set forth in the applicable Order Form.
2.2.	Excess Use. 
Any use of the Application that exceeds the scope of the Order Form(s) will be subject to additional fees. Fees accrue from the date the excess use began. Licensee will execute an additional Order Form to document subscriptions for additional Usage Metrics. Tohoom may invoice and Licensee will pay for excess use based on applicable pricing in the Order Form.
2.3.	Audit Right.
During normal business hours and at any time during which the Application is being utilized, Tohoom shall have the right upon reasonable advance notice to audit and inspect Licensee utilization of such items, in order to verify compliance with the terms of this Agreement. 
2.4.	Fee Increases.
At the beginning of each renewal term, Tohoom may increase fees to reflect annual increases in consumer prices or costs. For the first renewal term following the initial Subscription Term of the applicable Order Form(s), subscription pricing for the Applications will not increase, provided Licensee renews for at least the number of FLSMs and / or SLSMs set forth in the applicable Order Form(s), and Applications in effect just prior to renewal. Not raising fees is not a waiver of Tohoom's right to do so. Tohoom may increase fees if Licensee elects to reduce the Application or Usage Metrics for any renewal term.
2.5.	 Restrictions on Use.
The Application and Proprietary Technology may be used only by Licensee and Licensee’s authorized Users, only in connection with the internal operations of Licensee’s business. Licensee may not transfer, sell, assign, or sublicense the Application or Proprietary Technology to any person, or disclose the Application or Proprietary Technology or any part of the Application or Proprietary Technology to any other person or use it for any other person’s benefit, except as expressly permitted herein, or use it to infringe any personal or proprietary right of any kind of any third party. Licensee may not remove any Licensor or product identification, copyright, trademark, patent or other notices or proprietary restrictions from the Application or Proprietary Technology. Licensee may not modify, reverse-engineer, create derivative works, decrypt, re-compile, or decompile the Application, or Proprietary Technology. Licensee agrees not to use the Application on any system other than the Service unless otherwise agreed in writing by Licensor. All rights not expressly granted to Licensee hereunder are reserved to Licensee.
2.6.	Ownership.
Licensor owns all worldwide right, title and interest in and to the Application and any and all Proprietary Technology, including without limitation all Intellectual Property Rights therein. Nothing herein or otherwise shall be deemed to prohibit or limit in any way Licensor's right to use the Proprietary Technology, in whole or in part, to develop any application that is the same in any or all respects as the Application or to develop other software products or applications for other Tohoom customers.
2.7.	Confidential Information. 
Licensee acknowledges that the Application is and contains Confidential Information of Tohoom and/or its licensors and any use of the Confidential Information, except as expressly permitted hereunder, would be harmful to the interests of Tohoom, and considered a material breach of this Agreement. Licensee will use Licensee’s best efforts to safeguard all Confidential Information of Tohoom against disclosure using at least the same degree of care that Licensee uses to safeguard its own confidential and proprietary materials. Licensee shall not permit any unauthorized third parties to access any Confidential Information of Tohoom. Licensee shall use the Confidential Information of Tohoom only as expressly permitted in this Agreement and will disclose such Confidential Information within its organization only to those employees and consultants who need to know the Confidential Information and agree to be bound by the restrictions set forth in this Agreement.
2.8.	Export. 
Licensee will not export or re-export any of the Application, or any portion thereof, to any country except in compliance with the Export Regulations of the United States Department of Commerce and the United States Department of State, as applicable. Licensee will be responsible to obtain all necessary approvals prior to exporting or re-exporting the Application, or any portion thereof.
3.	Payment.
3.1.	In consideration for the license and rights granted by Tohoom to Licensee and the other undertakings of Tohoom contained in this Agreement, Licensee agrees to pay to Tohoom the amount specified. 
3.2.	Licensee is only authorized to use the Application as permitted herein for so long as it is in compliance with payments owed to Tohoom .
3.3.	Licensee shall make no deductions for taxes of any kind, including withholding taxes, from any payment to Tohoom under this Agreement. Licensee shall pay directly, and indemnify Tohoom against and repay Tohoom on demand for, any and all taxes, imposts, fees, or charges, such as, but not limited to, local, state, or federal sales, use, excise, personal property, value-added, excise, income, franchise, ad valorem, or stamp taxes; levies; customs duties; or import fees, together with any loss, liability, claim, costs or expenses, interest, or penalties incurred by Tohoom as a result of Licensee’s failure to pay any such taxes when due. However, withholding tax may be deducted provided Licensee notifies Tohoom in advance of the withholding tax requirement, pays the appropriate tax to the relevant governmental authority, and promptly provides Tohoom with a certified copy of the receipt for the withholding tax payment from the governmental authority. Taxes on the net income of Tohoom are Tohoom’s responsibility.
4.	Representations and Warranties by Tohoom. 
4.1.	Performance Warranty. Tohoom warrants to Licensee that for 90 days from the date the Application is installed as designed. In the event the Application fails to perform as designed, Tohoom's sole obligation, and Licensee’s sole remedy, shall be for Tohoom to correct the defective item(s) in such Application, at Tohoom's expense. 
4.2.	Modifications to the Service. If the Service is modified during the Term (as defined below) in a manner that affects the functionality of the Application such that it no longer functions as designed, Tohoom will use reasonable commercial efforts to modify the Application to make it compatible with the Service. If, in Tohoom’s reasonable judgment, it cannot so modify the Application without incurring additional expense, it may, at Tohoom’s option, either reasonably increase the fees payable by Licensee hereunder, or have Licensee reimburse Tohoom for the cost of such modification. If such modifications cannot be made or Tohoom and Licensee cannot agree to a modified Fee Schedule or reimbursement to Tohoom for the costs of such modification, then either party shall have the right to terminate this Agreement, and Tohoom shall return to Licensee a prorata share of the fees paid hereunder based on the date of such termination.
5.	Professional Services. 
5.1.	Professional Services, if any, shall be performed in a professional manner and Tohoom shall use reasonable skill and care when providing Professional Services. Tohoom shall use reasonable efforts to deliver such professional services in accordance with any agreed delivery dates, provided that, unless expressly stipulated to be binding milestones, any dates and time schedules provided shall be indicative target dates only. 
5.2.	The Licensee acknowledges that Tohoom performance of an order is dependent on the Licensee’s cooperation, and the Licensee will, at its own expense, co-operate with Tohoom by (without being limitative) timely providing such assistance, information (to be accurate and complete) and equipment (including necessary rights to third party software), as requested by Tohoom to perform the Professional Services, and by timely making available management decision, approvals and acceptances where required. The Licensee shall provide Tohoom personnel working on site at Licensee premises (and shall ensure that Licensee’s end users shall provide Tohoom personnel working on site at such end user’s premises), at no cost to Tohoom, with suitable office and work space, desks, storage, furniture, and other normal office equipment and support, adequate computer resources, telephone support and general office supplies as reasonably necessary to perform the Professional Services. The Licensee acknowledges and agrees that, in the event any agreed assumptions prove incorrect or if Licensee dependencies are not met, the agreed timeline and fees may be impacted and any resulting additional cost of Tohoom will be paid by Licensee. 
5.3.	Unless otherwise expressly and explicitly agreed between Tohoom and the Licensee in writing, Professional Services will be invoiced and paid for by Licensee on a time and material basis whereby a man day will consist of a maximum of eight hours. Professional Services rendered outside Business Days/Business Hours will be billed at 150% of Tohoom then current professional services rates. All expenses incurred by Tohoom when rendering Professional Services, such as, but not limited to, travel (local transport and flights), accommodation, and out of pocket expenses, will be for the account of the Licensee. 
5.4.	Quotations for Professional Services are estimates only, and circumstances outside of Tohoom control may impact the delivery of those services. Additional professional services may be required, in such case the agent(s) providing the services will inform the Licensee as soon as practical to allow the Licensee to curtail the work within the allotted purchase allocation or allow the Licensee to amend the engagement further.
6.	Support Services
6.1.	Provided that all applicable fees are fully paid as set forth herein, Tohoom will provide Support Services for Stakeholder Lifecycle Management. Support Services will be provided solely in circumstances where the functionality of Stakeholder Lifecycle Management is materially impaired (“Error”).
6.2.	Support Services will be provided on the following basis: (i) Licensee will provide Tohoom with a named contact within its organization for Support Services, (ii) Licensee named contact will notify Tohoom (by email to support@Tohoom.com) of any Error (a “Support Request”), and (iii) Licensee will provide assistance to Tohoom, as Tohoom may reasonably request, to assist Tohoom in the performance of its Support Services.
6.3.	Licensee Requirements. Within 24 hours of the time of receipt (or, if this would require a response on a day which is not a regular United States business day (“Business Day”), on the next following Business Day) of a Support Request from Licensee’s named contact, Tohoom will contact Licensee’s named contact via email or telephone to acknowledging receipt of such Support Request and to ascertain the priority of the Support Request. Tohoom will assign a priority level to the Service Request as follows: “High” The Application is not functioning and is impacting the business of all Users. No work-around is possible. “Medium” The Application is not functioning properly but a work-around is functioning or Users have indicated that the impact to their business is not immediate or critical. “Low” Users are experiencing one of the following: (i) occasional problems are occurring with Application but it is generally performing correctly with minor restrictions; (ii) information has been requested; or (iii) A cosmetic or non-performance impacting issue has been identified. Tohoom will make reasonable commercial efforts to resolve Service Requests within the following time frames: Level Targeted Resolution Time (without guaranty) After Initial Response by Tohoom “High” 1-3 Business Days. “Medium” 3-10 Business Days. “Low” During planned maintenance or determined by Tohoom. If requested by Tohoom, Licensee will provide login access to the Application until a Service Request is resolved.
6.4.	Tohoom Responsibilities. Tohoom will make reasonable commercial efforts to meet response times associated with a Support Request, communicating with Licensee about those Support Requests, and, when appropriate, making fixes to the Application to resolve those Support Requests. 
6.5.	Planned Maintenance. Planned maintenance will take place from time to time to make fixes to the Application and, at the discretion of Tohoom, add additional capability. Licensee will be given at least 8 hours electronic notice and Tohoom will make reasonable commercial efforts to schedule planned maintenance during the weekend hours between 6:00 PM Friday and 3:00 AM Monday EST. 
7.	Indemnification.
7.1.	Licensee agrees to indemnify and hold harmless Tohoom, its successors and assigns, and their respective officers, directors, employees, licensors and agents, from and against all claims, actions, suits, damages, liabilities and costs (including, without limitation, reasonable legal fees) resulting from Licensee’s breach of any provision of this Agreement or its use of the Application. Tohoom shall indemnify, defend and hold Licensee harmless from any claim that the Application, as provided to you by Tohoom, infringes the proprietary rights of any third party.
8.	Warranty Limitation.
8.1.	The warranties set forth herein will not apply if (a) the Application is used other than in accordance with Tohoom's instructions; (b) the Application software has been altered, modified or converted by Licensee or any third party; (c) the operation of the Application is affected by a malfunction in any of Licensee’s equipment or software; (d) Licensee has not installed any error corrections or updates by Tohoom or continue to use the Application after receipt of written notice by Tohoom that such use may cause errors; (e) any other cause within the control of Licensee results in the Application becoming inoperative; or (f) Licensee materially breach this Agreement and such breach affects the functionality of the Application. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE APPLICATION IS PROVIDED "AS IS," AND TOHOOM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION OR THE RESULTS THAT MAY BE OBTAINED BY USING THE APPLICATION, AND DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.	Limitation of Liability.
9.1.	Tohoom's cumulative liability to Licensee for any and all proven, direct damages related to the Application arising out hereof shall not exceed the total amount of license fees paid by Licensee to Tohoom for such Application hereunder. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY HEREIN, IN NO EVENT WILL TOHOOM BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RESULTING FROM LOSS OF PROFITS OR BUSINESS WHETHER FORESEEABLE OR UNFORESEEABLE, OR RESULTING FROM ANY ERROR IN THE APPLICATION, OR RESULTING FROM ANY DECISION MADE OR ACTION TAKEN BY LICENSEEE IN RELIANCE ON THE APPLICATION, OR RESULTING FROM ANY UNAVAILABILITY OF THE SERVICE, OR RESULTING FROM HARM TO OR LOSS OF EQUIPMENT, SOFTWARE OR DATA, OR RESULTING FROM ANY CLAIM AGAINST LICENSEE BY A THIRD PARTY), WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, EVEN IF TOHOOM IS NEGLIGENT OR OTHERWISE AT FAULT, AND REGARDLESS OF WHETHER TOHOOM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing exclusions and limitations of liability and remedies will apply, to the fullest extent permitted by law, in all actions of any kind, whether based on contract, tort, or any other legal or equitable theory. Each of these exclusions and limitations is intended to be separately enforceable, without regard to the other exclusions and limitations, and without regard to whether any other remedy under this Agreement fails of its essential purpose. You acknowledge that the warranty exclusions and limitation of remedies provided hereunder are neither unreasonable nor unconscionable and if Tohoom's liability had not been so limited, the fees charged to Licensee hereunder would have been substantially higher.
9.2.	Loss of Data. Software error can cause a significant loss of data. Tohoom shall not be responsible for any loss of data. 
10.	Term/Termination.
10.1.	Term. This Agreement and the licenses granted hereunder will commence as of the Agreement Effective Date and will remain in effect until terminated pursuant to this Section 10 (the “Term”).
10.2.	Termination. (a) Licensee may terminate this license at any time by uninstalling and ceasing to use all copies of the Application. You shall not be entitled to any refunds in such event and shall be obligated to pay Tohoom for all amounts due under the applicable Fee Schedule from the License Attachment 1 that have accrued as of the date of such termination. (b) Either party will have the right to terminate this Agreement if (i) the other party breaches any material provision hereof and fails to make substantial progress to cure such breach within 30 days after receipt of written notice of the breach from the non-breaching party (ten (10) days in the event of nonpayment); or (ii) a petition or any other papers are filed with a court of competent jurisdiction involving the insolvency, bankruptcy, suspension of business, assignment of assets for the benefit of its creditors, voluntary dissolution, or appointment of a trustee for all or a substantial portion of the other party's assets.
10.3.	Effect of Termination. Unless the parties mutually agree otherwise in writing, upon termination of this Agreement for any reason, Licensee’s license to the Application shall terminate and it shall return all copies of the Application and any other Proprietary Technology in its possession, to Tohoom. Upon Tohoom's termination hereof as a result of any of the events set forth in Section 10.2(b) above, all rights granted to Licensee hereunder shall immediately terminate and Licensee will be responsible for and will pay Tohoom for all Application license fees incurred up to the effective date of such termination. The Application license fees payable by Licensee hereunder will be calculated in accordance with the payment terms specified in the Agreement. Upon termination hereof for any reason, Licensee will deliver or destroy all records (electronic, written, or in any other tangible or intangible medium or expression) containing Tohoom’s Confidential Information.
10.4.	Nonexclusive Remedy. Termination hereof by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
11.	Application Information and Data.
11.1.	Tohoom does not own any data or information that Licensee loads or creates using the Application ("Customer Data"). Licensee, not Tohoom, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Tohoom shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Tohoom reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Licensee’s non-payment. Upon termination for cause, Licensee’s right to access or use Customer Data through the Application shall immediately cease.
12.	Internet and Hosting Service Provider Delays.
12.1.	TOHOOM’S APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS AND THE HOSTING SERVICE PROVIDER. TOHOOM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
13.	Miscellaneous.
13.1.	Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand, or on the next business day if delivered by a recognized overnight courier, or on the third business day if mailed (by certified or registered mail, return receipt requested, first class postage prepaid), to Licensee  at the address noted above and to Tohoom at P.O. Box 2340, Birmingham MI 48012, Attn: CEO.
13.2.	Marketing. Licensee hereby authorizes Tohoom to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
13.3.	Rights and Remedies. All rights and remedies of either party shall be cumulative and may be exercised singularly or concurrently. No delay or failure by either party to exercise any right hereunder and no partial or single exercise thereof shall constitute a waiver of such right or of any other rights hereunder. Licensee acknowledges that any breach of this Agreement is likely to cause Tohoom substantial and irrevocable damage and therefore, in the event of any such breach, Licensee agrees that Tohoom, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief. Any dispute or other action arising out of this Agreement must be brought within one year of the date the cause of action accrued, except that an action for nonpayment may be brought within one year of the date of last payment.
13.4.	Assignment. Licensee may not, without Tohoom’s prior written consent, assign, delegate, sublicense, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement or the Proprietary Information, to any part including any affiliate. Any permitted assignment of this Agreement shall provide that the provisions of this Agreement shall continue in full force and effect and that Licensee shall guaranty the performance of its assignee and shall remain liable for all obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.5.	Change in Control. Licensee acknowledges the importance of Tohoom knowing the party possessing and controlling the use of Tohoom's Confidential Information and Application. Licensee agree, therefore, that Tohoom has the right to terminate this Agreement for cause if Licensee (i) transfer a majority interest in its ownership and/or the control of to any person or entity, or (ii) consolidates with or merges into or with another entity, or acquires all or substantially all of the assets or stock or other ownership of any person or entity, or (iii) sells or transfers all or substantially all of its assets to any person or entity.
13.6.	Survival of Rights and Obligations. The rights and obligations of the parties contained in Sections 1, 2.3, 2.4, 6, 7, 8, 10.3, and 13 will survive any termination hereof.
13.7.	Severability. If any part hereof shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.
13.8.	Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, Oakland County without regard to the conflicts of law provisions of that or any other jurisdiction.
13.9.	Arbitration. If any controversies, claims or disputes of any nature arise out of or relate to this Agreement, or the breach thereof, including any claim for negligence or tort liability, then the sole remedy for dispute resolution of any legal claims by the parties hereto is to proceed to binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (in the Birmingham, Michigan office only) (the "AAA"), and judgment upon the award rendered by the arbitration panel may be entered in a court having jurisdiction in Birmingham, Michigan. Upon determination by arbitrators, the fees, costs, and expenses of the arbitration, including attorneys' fees, shall be borne by the party against whom the arbitration is determined.
13.10.	Modification. This Agreement may not be modified except by a written instrument duly executed by the parties hereto. The failure of either party to enforce, in any one or more instances, any of the terms and conditions of the Agreement, shall not be construed as a waiver of the future performance of any such term or condition, and in no event shall such a waiver be construed unless in writing signed by the party against whom such waiver is asserted.
13.11.	Force Majeure. In no event will Tohoom be liable for any delay or failure to perform hereunder as a result of acts of God, acts of the public enemy, fires, floods, strikes, and other causes beyond the reasonable control of Tohoom.