SOFTWARE SUBSCRIPTION AND SERVICES AGREEMENT
This Software Subscription and Services Agreement (collectively with any documents incorporated by reference, the “Agreement”) is entered into as of the Effective Date set forth above, by and between Nagnoi, LLC a limited liability company authorized and registered with the Commonwealth of Puerto Rico (“Nagnoi”), and ______________ (“Client”). Nagnoi and Client may be referred to together herein as the “Parties” or individually herein as a “Party.”
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1.  DEFINITIONS. In addition to capitalized terms that are otherwise defined herein, the following capitalized terms shall have the meanings set forth in this Section 1.
“Aggregated Data” means, collectively, all anonymous, statistical, analytical and other aggregated data collected, analyzed, and compiled by Nagnoi, as part of its provision of access to the Licensed Software or while performing the Services, and any information related to the use, provision of, monitoring and performance of the Licensed Software and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom) but solely in an anonymous, aggregated and de-identified manner.  Aggregated Data cannot be re-identified or de-aggregated. 
“API” or “Application Programming Interface” means has, regarding the Licensed Software, the customary meaning in the software industry, i.e. documentation that contains specifications of functionality, procedures and protocols according to which a reasonably skilled software programmer may develop, with respect to the Licensed Software, connectors for exchanging communications.
“Confidential Information” means any material, data or information relating to a Party’s software, inventions, processes, formulas, technologies, designs, drawings, research, development, products, product plans, services, customers, customer lists, member lists, member contact information, Client programs, resource information, markets, marketing plans, financial statements, or other business information, trade secrets or intellectual property that such disclosing Party treats as proprietary or confidential, and is marked as “confidential” or “proprietary” or that, given the circumstances, should be reasonably apparent that such information is of a confidential or proprietary nature. Without limiting the foregoing, (i) the Nagnoi Technology and all IP Rights associated therewith shall constitute Confidential Information of Nagnoi, (ii) Client Data shall constitute Confidential Information of Client; and (iii) all software and any databases (including any data models, structures, non-Client specific data and Client specific data and aggregated statistical data contained therein) disclosed by a Party shall constitute Confidential Information of the disclosing Party.
“Client Data” means any data, regardless of whether in printed or electronic form, that is (i) provided to Nagnoi by Client in order for Nagnoi to perform its obligations under this Agreement, (ii) otherwise obtained by Nagnoi for or on behalf of Client in the course of performing services for Client, (iii) provided to Nagnoi by Permitted Users, or (iv) derived from Client’s use of the Licensed Software for analytics, including any output resulting from processing such Client Data. 
“Data Protection Laws” means any federal or state laws or regulations applicable in the jurisdiction where access to the Licensed Software is being provided that relate to the processing of personal information or protected health information, as such terms are defined under applicable law.
“Documentation” means the technical documentation, manuals, specifications, and other materials, expressed in any medium or format, describing the functionality, features, and operating characteristics of the Licensed Software that Nagnoi makes available to the Client, as well as any updates thereto.
“Effective Date” means, for this Agreement the date specified in the first paragraph, and for any Order or Statement of Work or other document executed in connection with this Agreement, the date that the individual document has been executed by both Parties (which is the latter date if executed by the Parties on different dates).
“IP Rights” means any and all intellectual property rights of any type, recognized in any country or jurisdiction throughout the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation, all: (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; (ii) trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship, or (iv) trade secrets and know-how.
“Licensed Software” or “Software” means Nagnoi’s proprietary software solutions and application(s) that are made available to Client under a Subscription Term, either under a ‘software-as-a-service’ access (“SaaS”) or as an “On-Premise” installation, under the terms of this Agreement. Software includes, but it is not limited to, Nagnoi’s products commercialized under the Marks STARSTrackTM and OneXTM. 
“Marks” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned and/or in use by a Party as of the Effective Date, or which are acquired and/or used by such Party thereafter. 
“Order(s)” means one or more ordering documents for purchases of Software and/or Services that are executed by Client and Nagnoi from time to time under this Agreement. Orders  are incorporated herein by reference.
“Permitted Users” means Client’s employees, agents, consultants or contractors authorized by Client to access and use the Licensed Software.
“Professional Services” means, in each instance, the implementation, integration, Configuration, training, consulting or other professional services provided by Nagnoi pursuant to a SOW under this Agreement.
“Services” means collectively, any services provided by Nagnoi that are agreed upon and set forth in the applicable Order, which may relate to the Technology or to Professional Services.  
“Statement of Work” or “SOW” means one or more ordering documents for purchases of Professional Services that are executed by Client and Nagnoi from time to time under this Agreement. Each SOW shall contain, at a minimum, the following information: (i) the scope of the Professional Services to be provided; (ii) applicable rates and fees; (iii) responsibilities and dependencies of each Party; (iv) agreed upon Work Product and specific deliverables, if any; and (v) signatures of authorized representative of both Parties. SOWs are incorporated herein by reference.
“Subscription” means Client’s and its Permitted Users’ access and usage rights to the Licensed Software in accordance with this Agreement and as described in the Documentation, that are ordered by Client under an Order, but excluding Third-Party Applications and Professional Services.
“Subscription Term” means the period of time from the start date to the end date specified in each Order for each subscription purchased thereunder. Each renewal of a subscription, whether automatic or in writing, shall constitute a new Subscription Term.
“Technology” means collectively, the Licensed Software, API(s), Documentation, and all software, designs, formulas, algorithms, processes, and programs that are owned by Nagnoi or its licensors and that are practiced by or embodied in Nagnoi’s products and services.
“Third-Party Applications” means software products that are provided by third parties but may be configured to interoperate with the Subscription Services and the Technology.
“Work Product” means any expression of Nagnoi’s findings, developments, inventions, analyses, conclusions, opinions, recommendations, ideas, techniques, designs, programs, enhancements, modifications, interfaces, source code, object code and other technical information resulting from the performance of Professional Services, support services, or any other services performed under this Agreement.
2.  SUBSCRIPTION LICENSES 
2.2. License Grant. Subject to Client's payment of Subscription Fees and its compliance with all the terms and conditions of this Agreement, Nagnoi hereby grants Client a non-exclusive, non-sublicensable, and non-transferable limited license during the Subscription Term to: (i) use the Licensed Software solely for Client's internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for Client's internal business purposes in connection with Client's use of the Licensed Software.  For sake of clarity, if Client chooses the “SaaS” option in an Order, Nagnoi grants Client the right to access and use the License Software on a software-as-a-service basis, as hosted by Nagnoi, in accordance with Section 2.2. Otherwise, Client gets a limited right to install the Licensed Software “On Premise” in object code only.  Client right to access and use the Licensed Software is limited to the number of licenses purchased by Client in accordance with the Order. Client acknowledges and agrees that any act or omission of its Permitted Users hereunder which act or omission would constitute a breach of this Agreement if undertaken by Client, shall be considered a material breach by Client hereunder. 
2.2. Hosting. Nagnoi may host the Licensed Software on its own infrastructure or using a third-party cloud computing services provider. Client’s purchases of Subscriptions are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Nagnoi regarding future functionality or features. Nagnoi may, in its sole discretion, modify, enhance and/or expand the Licensed Software at no additional cost to Client. Nagnoi may also modify, enhance or expand the Licensed Software by providing additional features or functionality, which may, but are not required to be, added by Client to this Agreement at additional cost. Such additional cost features and functionality may be added by mutual written agreement of the Parties. 
2.3. Subscriptions.  Unless otherwise specified in the applicable Order, (a) License Software Subscriptions are purchased either as annual or monthly subscriptions, as set forth in the applicable Order; (b) additional Subscriptions may be purchased during the Subscription Term by signing an additional Order and paying the additional fees for such additional Subscriptions, prorated for the portion of that Subscription Term remaining at the time the Subscriptions are added; and (c) the added Subscriptions shall terminate on the same date as the underlying Subscriptions. The Licensed Software Subscriptions are subject to any usage limits that are specified in the Orders.
2.4. API credentials.  In order to access certain Licensed Software products, Client may need to use Nagnoi’s Application Programming Interface.  For this purpose, Nagnoi grants to Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access, use, and integrate the Software with Client’s application(s) or systems and to build connectors for this purpose in accordance with this Agreement (the “API License”).   In order to access and use the Nagnoi API, Nagnoi will provide Client with credentials specific to Client (the “API Credentials”).  The API Credentials are confidential information and property of Nagnoi. Client is responsible for maintaining commercially reasonable security and control of Client’s API Credentials in accordance with this section.  Client is prohibited from selling, transferring, sublicensing, or disclosing the API Credentials to any third party, other than to Client’s third-party service providers who need such information in order to perform services for Client, if applicable.  Nagnoi may immediately revoke the API Credentials if Client breaches this Agreement.  This API License may be immediately revoked or terminated by Nagnoi if Client shares Client’s API Credentials with any third party (other than third party service providers who need such information in order to perform services for Client) or if Client breaches this Agreement.
2.5. Records. Client shall maintain books and records sufficient to permit Nagnoi or an independent auditor retained by Nagnoi to verify Client’s compliance with the terms and requirements of this Agreement. During the term of this Agreement and for a period of one (1) year following its termination or expiration, Nagnoi has the right to audit Client’s use of the Licensed Software to verify compliance with this Agreement. Any such audit will be performed with reasonable advance written notice to Client, during Client’s normal business hours and in a manner not disruptive to Client’s operations. In the event that any audit reveals any non- compliance, including but not limited to underpayment of fees, Client shall promptly cure the non-compliance, and pay Nagnoi any shortfall (at Nagnoi’s then current list price) and, if such shortfall exceeds 10% in any one-year period, reimburse Nagnoi the reasonable costs of such audit. This Section 2.5. does not limit any other rights and remedies that Nagnoi may have.
3. GENERAL OBLIGATIONS AND RESTRICTIONS
3.1. Restrictions.  Except as expressly permitted in this Agreement regarding the Nagnoi IP Rights, the Client shall not, and shall not permit, at any time, any other Permitted User or third party, directly or indirectly, to: (i) use the Technology for any purposes beyond the scope of the licenses granted in this Agreement; (ii) copy, reproduce,  modify, correct, adapt, translate, enhance, or otherwise create derivative works of the Technology, in whole or in part; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Technology to any third party; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part; (v) use the Technology in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) bypass or breach any security device or protection used for or contained in the Technology; (vii) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any Marks, proprietary or copyright notices, proprietary rights or other symbols, or  notices, on or relating to any copy of the Technology; (viii) use the Technology in order to build a competing  product or service; (ix) use the Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (x) use the Technology to store or transmit code, files, scripts, agents or programs intended to do harm (including, for example, viruses, worms, time bombs and Trojan horses); (xi) interfere with or disrupt the integrity or performance of any Technology or third-party data contained therein; (xii) attempt to gain unauthorized access to the Technology or services; (xiii) permit direct or indirect access to or use of any Technology in a way that circumvents a contractual usage limit.
3.2.  Nagnoi Responsibilities. 
3.2.1. Support and Maintenance. As part of the purchased Subscriptions, Nagnoi shall provide Client with standard technical support and maintenance services (“Support”) at no additional charge, unless otherwise set forth in the Order. Client agrees that such Support service includes the ongoing monitoring by Nagnoi of the Licensed Software performance. Client will channel its communications regarding Support of the Licensed Software, its Subscriptions, and/or Services through eligible technical personnel; and agrees, upon Nagnoi’s request, to provide Client-specific information reasonably necessary for purposes of Support. Nagnoi reserves the right to modify its maintenance and support services documentation from time-to-time and, other than immaterial changes and corrections, will give Client reasonable notice of modifications thereto. If installed On Premise, Client will allow Nagnoi reasonable remote access to Client’s Licensed Software (a) for the purposes of resolving reported problems and/or to verify performance of the Licensed Software (if such access requires access to Client’s network or systems); and (b) to update and fix any bugs or errors in the Licensed Software. If provided as SaaS, Nagnoi will use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Nagnoi’s reasonable control, including, for example, an act of God, act of government, national emergency, pandemic, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Nagnoi’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack.  
3.2.2. Delivery and Setup. Nagnoi shall deliver the Licensed Software electronically, or by other means, in Nagnoi's sole discretion, to Client following the Effective Date, upon implementation, setup and configuration of the Licensed Software for Client’s use (see Section 4 for Professional Services). Client agrees to provide Nagnoi reasonable access to its systems and network(s) for any such Services. 
3.2.3. Security. Nagnoi has implemented industry standard physical, technical and organizational measures designed to secure the Licensed Software and Client Data from accidental loss and unauthorized access, use, alteration or disclosure; however, Nagnoi cannot guarantee that unauthorized third-parties will never be able to defeat those measures to gain access to the Services. If installed On Premise, Client agrees that the Licensed Software and Client Data are hosted on Client’s systems and networks and not Company’s. Notwithstanding the foregoing, each Party shall take, and hereby represents that it has taken, all steps to ensure the reliability and security of its systems; and that it will comply with their respective systems, network and data security policies. 
3.3. Client Responsibilities. Client shall (a) be responsible for Permitted Users’ compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity, and legality of Client Data and of the means by which Client acquired Client Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Licensed Software, and notify Nagnoi promptly of any such unauthorized access or use, (d) use the Licensed Software only in accordance with the Documentation and applicable laws and government regulations, and (e) provide Nagnoi with assistance, information and materials that are reasonably requested as necessary to effectively provide the Licensed Software. Client will comply with applicable privacy data laws throughout the term of this Agreement. 
3.4. Client Data. The Licensed Software can be used to access and process Client Data in order to generate reports, analyses, documents, and/or results. If provided as a SaaS service, Client may choose to save such output, in which case it will be saved as Client Data in Client’s account. Upon any termination (see Section 11), Nagnoi will make all Client Data available to Client for electronic retrieval in an agreed upon format for a period of sixty (60) days, but thereafter Nagnoi may, but is not obligated to, delete stored Client Data (unless otherwise required by applicable law). Nagnoi will not access Client Data except in accordance with (a) the licenses granted to Nagnoi in Section 7.3 (Client Data; License); and (b) in compliance with Sections 6.4 (Compelled Disclosure) and 6.5 (Privacy). 
4. PROFESSIONAL SERVICES
4.1. Professional Services. The Parties may, but are under no obligation to, enter one or more SOWs for Professional Services to be performed by Nagnoi. No Professional Services shall be furnished to Client by virtue of this Agreement alone, but shall require the execution of a SOW by both Parties.
4.2. Scope Modifications. Client may at any time request a modification to the Professional Services to be performed pursuant to any particular SOW by making a written request to Nagnoi specifying the desired modifications. Nagnoi shall submit an estimate of the cost for such modifications and a revised estimate of the time for performance pursuant to the SOW. Modifications in any SOW shall become effective only when a written change request is executed by authorized representatives of both Parties.
4.3. Nagnoi Personnel. Nagnoi shall be responsible for securing, managing, scheduling, coordinating and supervising Nagnoi personnel, including its subcontractors, performing the Professional Services. Nagnoi will designate a Nagnoi project manager in each SOW who will be responsible for coordinating Nagnoi’s provision of Professional Services under such SOW. Nagnoi shall have the right to remove or replace any personnel providing Professional Services with similarly skilled personnel. Nagnoi shall provide reasonable notice to Client of any change in personnel providing Professional Services. Nagnoi may, in its sole discretion, subcontract or delegate any work under any SOW to any third party without Client’s prior written consent, provided that, Nagnoi shall (i) if the subcontractor will have access to Client Data, require the subcontractor to enter into a written agreement containing terms, restrictions, conditions, and requirements with respect to such Client Data that are no less stringent than those applicable to Nagnoi hereunder and that comply with the requirements of the Data Protection Laws in all applicable jurisdictions; (ii) remain responsible for the performance, acts and omissions of any such subcontractors (including compliance of Section 6.5). Client may request that Nagnoi remove or replace Nagnoi personnel if Client believes, in Client’s reasonable discretion, that such personnel’s involvement is inappropriate, unsafe or detrimental to the delivery of the Professional Services. In the event such a request is made, any project timelines shall automatically extend by the amount of time required to replace said personnel and assimilate them into the project.
4.4. Cooperation. Client shall perform its obligations as set forth in the applicable SOW, as well as the following obligations: (a) designate and provide one Client project manager who will be responsible for coordinating the Client obligations under a SOW; (b) provide sufficient, qualified, knowledgeable personnel capable of: (i) performing Client obligations set forth in each SOW; (ii) making timely decisions necessary to move the Professional Services forward; and (iii) participating in the project and assisting Nagnoi in rendering the Professional Services; and (c) in the case of on-site Professional Services, provide Nagnoi with reasonable access to Client’s facilities and equipment or systems during Client’s normal business hours and otherwise as reasonably requested by Nagnoi, including such working space as Nagnoi may reasonably request. Client acknowledges and agrees that the performance by Client of its obligations is material to Nagnoi’s ability to commence, proceed with and complete the Professional Services. In the event Client does not perform Client obligations in a timely manner, Nagnoi may take any action as set forth in the applicable SOW, or terminate the applicable SOW in accordance with this Agreement.
4.5. Configuration. If Configuration services are contracted under Professional Services, Nagnoi will, as part of the implementation, Configure the Licensed Software for Client requirements. “Configuration” services mean the process of making the Licensed Software ready to use, including defining options, values of parameters, and/or general set-up using pre-existing configurable features, templates and/or pre-sets. The fact that Client uses the Licensed Software in any particular manner or Configuration is Client’s Confidential Information, however, Client acknowledges that it does not receive any exclusive right under this Agreement to use any Licensed Software in any particular manner or Configuration.
5. FEES AND PAYMENTS
5.1. Fees. Client agrees to pay Nagnoi the fees and other amounts set forth on all applicable Orders and SOWs. Except as otherwise specified in an Order, (a) fees for Licensed Software are based on Subscriptions purchased up to the limits set forth in the applicable Order, (b) payment obligations are non-cancellable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant Subscription Term. Except as otherwise specified in an SOW, fees for any and all Professional Services shall be based on then-current rates, which can be fixed or hourly, as further set forth in the applicable Order.
5.2. Payment Terms. Unless otherwise specified in the applicable Order or SOW, all undisputed fees and other amounts due under this Agreement shall be due payable net thirty (30) calendar days after date of receipt by Client of the applicable invoice. Client will provide complete and accurate billing and contact information to Nagnoi and promptly notify Nagnoi of any changes to such information.
5.3. Taxes. Client will, within thirty (30) days of the Effective Date of this Agreement, provide Nagnoi with applicable sales tax exemption certificate(s). Unless the applicable tax-exempt certificate is provided, Client shall be responsible for, all taxes, duties, and assessments imposed on Client in connection with fees paid under the provisions of this Agreement, including without limitation, all sales, use, excise or other taxes and duties, and Nagnoi will include all such taxes, duties and assessments on each applicable invoice.
5.4. Expenses. Client shall reimburse Nagnoi for any reasonable, actual out-of-pocket expenses incurred and approved by Client, including travel expenses and related costs, incurred by Nagnoi employees and subcontractors, provided that such expense and costs are consistent with Client’s own travel policies and approved in advance by Client.
5.5. Disputed Charges. Client must notify Nagnoi in writing of any dispute or disagreement with invoiced charges within thirty (30) calendar days after the date of receipt of the applicable invoice by Client. Absent such notice, Client shall be deemed to have agreed to the charges as invoiced.
5.6. Suspension. If any amount owing by Client under this Agreement is thirty (30) or more days past due, Nagnoi may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend the Subscriptions and/or Professional Services to Client until such amounts are paid in full. Nagnoi will give Client at least ten (10) days’ prior notice that Client’s account is overdue before implementing any such suspension.
6. CONFIDENTIAL INFORMATION
6.1. Access. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain Confidential Information of the other Party or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.
6.2. Mutual Obligations. Except as may be expressly set forth in this Agreement, each Party that receives Confidential Information of the other Party agrees during the term of this Agreement and thereafter, to: (a) use the Confidential Information only for the purposes of performing this Agreement; (b) hold the Confidential Information of the other Party in confidence and restrict it from dissemination to, and use by, any third party; (c) protect the confidentiality of the other Party’s Confidential Information using the same degree of care, but no less than reasonable degree of care, as the receiving Party uses to protect its own Confidential Information; (d) not create any derivative work from Confidential Information of the other Party; and (e) restrict access to the Confidential Information of the other Party to such of its personnel, subcontractors, and/or consultants who have a need to have access to such Confidential Information, who have been advised of the confidential nature of such information, and who have agreed in writing to terms no less protective than the terms set forth in this Agreement with respect to the treatment of such Confidential Information.
6.3. Confidentiality Exceptions. Section 6.2 shall not apply to Confidential Information that is: (a) publicly available or in the public domain at the time disclosed; (b) publicly available, becomes publicly available or enters the public domain through no fault of the recipient; (c) rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information and by employees or other authorized agents of the receiving Party who have not been exposed to the disclosing Party’s Confidential Information; or (f) approved for release or disclosure in writing by the disclosing Party.
6.4. Compelled Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party to the limited extent required to: (a) comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, to the extent allowed by law, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
6.5. Privacy. To the extent Client Data may include personal information, both Parties must comply with all applicable requirements of the Data Protection Laws. To the extent applicable, the parties will enter into a Business Associate Agreement in accordance with 45 C.F.R. § 164.502 (in the form attached hereto as Annex A)  to address Nagnoi’s rights and responsibilities under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), with respect to Nagnoi’s access, use and disclosure of protected health information received from or on behalf of Client.   Without prejudice to the generality of this Section 6.5, the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal information and protected health information to Nagnoi for the duration and purposes of this Agreement so that Nagnoi may lawfully use, process and transfer the personal information and protected health information in accordance with this Agreement on the Client’s behalf. The Client acknowledges and agrees that the collection, use, processing and disclosure of personal information or protected health information received through the Client’s use of the Third Party Application(s) shall be under the terms of the contract between Client and the provider of such Third Party Application.  
6.6.  Equitable Relief. The Parties acknowledge and agree that money damages would not be a sufficient remedy for breaches of this Section 6, and that each Party may seek injunctive relief, specific performance, or other equitable relief as a remedy for any such breach.
6.7. Notification. Each party will: (a) notify the other party promptly of any material unauthorized possession, use, or knowledge of the other party’s Confidential Information by any person that may become known to such party; (b) promptly furnish to the other party details of the unauthorized possession, use, or knowledge, or attempt thereof, and use reasonable efforts to assist the other party in investigating or preventing the recurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (c) use reasonable efforts to cooperate with the other party in any litigation and investigation against third parties deemed necessary by the other party to protect its proprietary rights; and (d) promptly use reasonable efforts to prevent a recurrence of any such unauthorized possession, use, or knowledge of Confidential Information.
6.8.  Login Credentials. In addition to the foregoing obligations, Client agrees to hold the Licensed Software, and all logins and passwords for the Subscription, in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied, or utilized therein, to anyone other than a Permitted User having a need for such disclosure, and then only to allow use of the Licensed Software as authorized herein. Client shall take all reasonable steps to ensure that the provisions of this Section are not violated by any Permitted User, or any other person under Client’s control or in its service. 
7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
7.1. Nagnoi. As between the Parties, Nagnoi and its licensors own all right, title and interest, including all IP Rights, in and to all Nagnoi Confidential Information, the Technology, the Nagnoi Marks, the Aggregated Data, the Generic Business Rules (see section 7.6) and any content and/or materials provided by Nagnoi through the Licensed Software or the Professional Services, and including without limitation, all modifications, improvements, upgrades, derivative works, incorporated materials, and feedback related thereto, and all software, associated documentation, hardware, materials, information, processes or subject matter that is proprietary to Nagnoi and is provided under this Agreement as part of the Technology. Nagnoi expressly reserves all rights not expressly granted to Client under this Agreement and all executed Orders and SOWs. Client shall not knowingly engage in any act or omission that would impair the IP Rights of Nagnoi or its licensors. In no event shall Client obtain any ownership rights in or to the Nagnoi Confidential Information, the Nagnoi Technology, its Marks, or any IP Rights of Nagnoi.  
7.2. Client. Client and its licensors own all right, title and interest, including all IP Rights, in and to Client Marks, the Client Data, all Confidential Information disclosed by Client, Client-Specified Business Rules (as defined in Section 7.6) and, if contracted under a SOW, any connectors that may be developed for Client’s exclusive use under the API license. Nagnoi shall not knowingly engage in any act or omission that would impair Client’s IP Rights or Confidential Information. In no event shall Nagnoi obtain any ownership rights in or to the Confidential Information of Client, the Client Data or Client’s IP Rights. 
7.3. Client Data; License. As between Nagnoi and Client, Client exclusively owns all rights, title, and interest in and to all of the Client Data. Client hereby grants Nagnoi a worldwide, limited-term license to host, copy, transmit and display Client Data, as necessary for Nagnoi to provide the Subscriptions and Services in accordance with this Agreement. Subject to the limited licenses granted herein, Nagnoi acquires no right, title or interest from Client under this Agreement in or to Client Data. Client hereby grants to Nagnoi a perpetual, non-exclusive, royalty-free license to (a) use Client Data in order to provide, monitor and improve the Licensed Software and Services; and (b) use all of Client Data that is anonymous, de-identified and does not personally identify Client, or a Permitted User, for statistical, analytical and other aggregate use, and without the possibility of re-identification or de-aggregation. 
7.4. Aggregated Data. Client hereby grants Nagnoi the right to Aggregate and De-Identify Client Data in accordance with applicable Data Protection Laws. Client further acknowledges that Nagnoi will use the Aggregated Data for any and all purposes in its discretion, including, without limitation, the development and improvement of products and services, provided that Nagnoi will disclose such Aggregated Data solely in aggregate or other de-identified form (and not susceptible to be re-identified) in connection with its business, and further provided that it will not disclose Client’s Confidential Information. 
7.5. Suggestions. Client hereby grants Nagnoi a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license with the right to create derivatives to use or incorporate into the Technology any suggestions, enhancement requests, recommendations, correction or other feedback provided by Client, including Permitted Users, relating to the functionality and/or operation of the Technology
7.6.  Business Rules.  The Licensed Software may process Client Data according to business rules that have been selected by Client for such use.  Certain rule-sets that have been published by third-parties or are of a generic nature (“Generic Business Rules”) and may be made available by Nagnoi merely for Client to reference as Client selects or develops business rules for its own purposes. Other business rules may be specified by Client and are considered “Client-Specified Business Rules.”  Collectively, all Generic Business Rules and Client-Specified Business Rules may be referenced as “Business Rules.”  Client is responsible for creation and/or selection of the Business Rules which it uses.    
7.6.1. Ownership of Business Rules.  The Parties agree that Client’s decision to use any particular Business Rule is confidential and is therefore considered Client’s Confidential Information.  Client will own all Client-Specified Business Rules and IP Rights therein, but exclusive of any Generic Business Rules embodied therein.  For clarity, in the event that Nagnoi develops any Client-Specified Business Rule on behalf of Client pursuant to Professional Services, any of Nagnoi’s pre-existing code and scripts contained therein are considered Generic Business Rules. Client agrees that, notwithstanding any provision of this Agreement or a SOW to the contrary, as between the Nagnoi and Client, all Generic Business Rules will be considered Nagnoi’s proprietary and Confidential Information, and Nagnoi will own all IP Rights therein.  Nagnoi will have the unrestricted right to use and to permit third parties to use all Generic Business Rules. The Parties agree that Business Rules are not considered part of the Nagnoi Software for purposes of this Agreement.
7.7. Work Product.  For sake of clarity, unless expressly agreed in the applicable Order or SOW, Nagnoi does not provide customizations or work-made-for-hire services.  In the event such out-of-scope services are contracted, these shall be solely under the terms of a separately executed Statement of Work.  Except for any Client-Specified Business Rules and/or any connectors that Nagnoi may develop for Client’s exclusive use under an API license (and unless otherwise specified in a SOW), all Work Product created under this Agreement or a SOW, including all IP Rights related thereto, shall be owned by Nagnoi. For Work Product created under this Agreement that is owned by Nagnoi and is made available to Client to enable Client’s use of the Licensed Software pursuant to the terms of this Agreement, Nagnoi hereby grants Client a worldwide, non-exclusive, non-transferrable, non-sublicensable right and license to use the Work Product, solely in connection with Client’s use of the Licensed Software. Unless otherwise specified in the applicable SOW, to the extent Client acquires any rights in the Work Product, Client hereby assigns such rights to Nagnoi. Client shall give Nagnoi all reasonable assistance and execute all documents necessary to assist or enable Nagnoi to perfect, preserve, register and/or record such assignment and Nagnoi’s rights in any Work Product.  
8. REPRESENTATIONS AND WARRANTIES
8.1. General. Each Party represents and warrants to the other that it has full power and authority to enter into and perform this Agreement, and that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including any confidentiality obligations.
8.2. Software Warranties. Nagnoi warrants that: (a) the Licensed Software shall perform materially in accordance with the Documentation and (b) subject to Section 8.3 (Third-Party Applications), the functionality of the Licensed Software will not be materially decreased during a Subscription Term. For any breach of either such warranty, Client’s exclusive remedy shall be as provided in Section 11.5 (Termination for Breach). Client acknowledges that availability of the Licensed Software under a SaaS implementation depends upon the availability of the Internet and any third-party cloud computing services provider and that Nagnoi has no control over such availability. Accordingly, Nagnoi makes no representations, warranties, or covenants regarding the availability of the Licensed Software to the extent that such availability depends upon the availability of the Internet or any third-party cloud computing services provider.  
8.3. Third Party Applications. The Licensed Software under a SaaS implementation have been built as a software-as-a-service on a cloud-computing platform. Such SaaS are designed to work with the cloud-computing platform and with certain other Third-Party Applications. If applicable, Client’s use of Third-Party Applications is governed entirely by the terms of Client’s agreement with the relevant third party. Nothing in this Agreement creates any rights or obligations on the part of Nagnoi with respect to such Third-Party Applications nor should this Agreement be construed as creating any rights or obligations on the part of any third party providing Third-Party Applications with respect to the SaaS provided by Nagnoi.
8.4. Professional Services Warranty; Exclusive Remedy. Nagnoi warrants the Professional Services performed hereunder will be performed in a professional and workmanlike manner, using sound principles, accepted industry practices and competent personnel (“Professional Services Warranty”). The Professional Services Warranty shall not apply if the Work Product is implemented, customized, modified, enhanced or altered by Client or any third party that is not specifically retained by Nagnoi as a contractor for such purposes. Client’s sole and exclusive remedy, and Nagnoi’s sole obligation, in the event of a breach of the Professional Services Warranty is for Nagnoi, at its expense, to re-perform the Professional Services which were not as warranted, provided Nagnoi has received notice from Client within thirty (30) calendar days of the completion of the Professional Services that Client alleges were not performed consistent with the Professional Services Warranty. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS SECTION 8.4 SETS FORTH NAGNOI’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE PROFESSIONAL SERVICES WARRANTY.
8.5. Client Warranties. In addition to any other representation or warranty hereunder, Client represents and warrants to Nagnoi that it owns all right, title and interest in, or otherwise have full and sufficient authority to use in the manner contemplated by this Agreement, any Client Data, information or content furnished by Client to Nagnoi, including without limitation Client’s Marks. Client hereby grants Nagnoi a limited, non-exclusive, royalty-free license to use such Client Data, information, content and Marks in the manner contemplated by this Agreement and the applicable SOW.
8.6. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8, NAGNOI MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, AND NAGNOI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. NO WARRANTY IS MADE BY NAGNOI ON THE BASIS OF TRADE USAGE OR COURSE OF DEALING. NAGNOI DOES NOT WARRANT THAT THE TECHNOLOGY, ITS MARKS, BUSINESS RULES, OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
9. LIMITATIONS OF LIABILITY
9.1. EXCEPT FOR DAMAGES ARISING OUT OF (i) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (ii) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S IP RIGHTS, OR (iii) WHERE A CLAIM RESULTS FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF THE PARTY FROM WHOM SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED.
9.2. EXCEPT FOR DAMAGES ARISING OUT OF (i) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (ii) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S IP RIGHTS, OR (iii) WHERE A CLAIM RESULTS FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NEVER EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO NAGNOI UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY BEFORE ANY EVENT GIVING RISE TO A CLAIM BY THE OTHER PARTY HEREUNDER. EACH PARTY HEREBY RELEASES THE OTHER PARTY FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS IN EXCESS OF THIS LIMITATION.
9.3. Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
10. INDEMNIFICATION
10.1. Infringement Claim.
10.1.1. Nagnoi shall indemnify, defend and hold harmless Client from and against all losses, liabilities, damages, claims, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of or related to a third party claim that Client’s use of, or access to, the Nagnoi Technology as used in compliance with this Agreement and its Documentation, infringes a United States patent, copyright or trademark or misappropriates any third party trade secrets (an “Infringement Claim”); provided that, Client must give Nagnoi: (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Nagnoi may reasonably request, at Nagnoi’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Nagnoi shall not, without the prior written consent of Client, settle any third-party claim against Client unless (i) such settlement completely and forever releases Client with respect thereto or (ii) does not involve any financial obligation on the part of Client. In any action for which Nagnoi provides defense on behalf of Client, Client may participate in such defense at its own expense by counsel of its choice.
10.1.2. Upon the occurrence of any Infringement Claim for which indemnity is or may be due under this Section 10.1.1, or in the event that Nagnoi believes that such a claim is likely, (Nagnoi will, at its option: (a) appropriately modify the Nagnoi Software or Technology to be non-infringing, or substitute functionally equivalent software or services; (b) obtain a license to the applicable third-party intellectual property rights; or (c) if the remedies set forth in clauses (a) and (b) above are not commercially feasible, as determined by Nagnoi in its sole discretion, Nagnoi may terminate this Agreement on written notice to Client and refund any pre-paid fees for services or Subscriptions that have not been provided. THE PROVISIONS OF THIS SECTION 10.1 STATES THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF NAGNOI TO CLIENT, AND IS CLIENT'S SOLE REMEDY, WITH RESPECT TO ANY INFRINGEMENT CLAIM.
10.2. Mutual Indemnity. Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its officers, directors, shareholders, members, managers, employees, agents and affiliates (each, an “Indemnified Party”) against any claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or omissions of the Indemnifying Party, its employees or agents, while performing its obligations pursuant to this Agreement or any SOW, which result in death, physical or bodily injury or tangible property damage. The Indemnified Party must give the Indemnifying Party: (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as the Indemnifying Party may reasonably request, at the Indemnifying Party’s expense, in connection with such defense and/ or settlement. Notwithstanding the foregoing, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle any third-party claim against the Indemnified Party unless (i) such settlement completely and forever releases the Indemnified Party with respect thereto or (ii) does not involve any financial obligation on the part of the Indemnified Party. In any action for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnified Party may participate in such defense at its own expense by counsel of its choice.
11. TERM AND TERMINATION
11.1. Agreement. This Agreement shall become effective upon the Effective Date hereof, and shall continue in effect until it is earlier terminated in accordance with this Section 11.
11.2. Term of Purchased Subscriptions. Each Subscription Term shall be as specified in the applicable Order. Unless otherwise specified in the applicable Order, subscriptions to Licensed Software will automatically renew for additional periods equal to the expiring Subscription Term, unless either Party gives the other Party written notice of non-renewal at least sixty (60) days before the end of the expiring Subscription Term. The pricing for any automatic renewal term will be the same as that during the immediately prior Subscription Term unless Nagnoi has given Client written notice of a price increase at least seventy (70) days before the end of the expiring Subscription Term, in which case the price increase will be effective upon renewal.
11.3. Term of Statements of Work. Unless otherwise stated in the applicable SOW, the term of each SOW shall last until performance thereunder is completed.
11.4. Termination on Expiration of Subscription Terms and SOWs. Upon expiration or termination of any and all Subscription Terms and SOWs executed under Agreement, either Party may terminate this Agreement by giving not less than thirty (30) days written notice to the other Party. In the event a Party terminates any individual Order or SOW in accordance with its terms, this Agreement shall remain in full force and effect in accordance with its terms.
11.5. Termination for Breach. Either Party may terminate this Agreement, or any Order or SOW executed under this Agreement, in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party; specifically identifying the breach on which such notice of termination is based. The breaching Party will have a right to cure such breach within sixty (60) calendar days of receipt of such notice (ten (10) calendar days in the case of non-payment). The non-breaching Party may terminate this Agreement, or any Order or SOW executed under this Agreement, in the event that such cure is not made within such sixty (60)-day period (or ten (10)-day period in the case of non-payment).
11.6. Bankruptcy. This Agreement, or any Order or SOW executed under this Agreement, may be terminated immediately by a Party through written notice if the other Party ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
11.7. Accrued Obligations. Termination of this Agreement and/or any particular Order or SOW shall not release either Party from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Order or SOW to survive termination.
11.8. Cumulative Remedies. Termination of this Agreement and/or any applicable Order or SOW, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
11.9. Effect of Termination. Upon any termination of this Agreement, Client shall immediately discontinue all use of the Licensed Software and promptly pay to Nagnoi all amounts due and payable under this Agreement. If On Premise, the parties will coordinate in good faith the uninstallation of the Licensed Software. In addition, each Party shall: (a) immediately discontinue all use of the other Party’s Confidential Information; (b) at the option of the disclosing Party, either return or destroy all Confidential Information of the disclosing Party in its possession; and (c) delete the disclosing Party’s Confidential Information from its computer storage or any other media, except for archival copies which may be retained and shall be destroyed in accordance with the party’s Record retention policy. Any such retained copies shall remain subject to Section 6 (Confidentiality). Each Party will, on request from the disclosing Party, provide the disclosing Party with a written certification of compliance with this Section 11.9 signed by an officer.    
11.10. Survival of Obligations. The provisions of Sections 2.5, 3.1, 5, 6, 7, 8.6, 9, 10, 11.7 thru 11.10 and 12, as well as Client’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
12. MISCELLANEOUS
12.1. Applicable Law; Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Puerto Rico, without giving effect to its rules regarding conflicts of laws. THE PARTIES AGREE THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE COMMONWEALTH OF PUERTO RICO.
12.2. Order of Precedence. In the event of a conflict between this Agreement and any Order, SOW or other document referencing this Agreement that is executed by both Parties, this Agreement shall govern, except to the extent that the applicable Order, SOW or other executed document expressly states the intent of the Parties to supersede or change one or more provisions in this Agreement and clearly identifies the provision(s) to be superseded or changed. This Agreement, including each Order or SOW, shall prevail over any different, conflicting, inconsistent or additional terms contained in any purchase order or like document issued by Client.
12.3. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Licensed Software. Without limiting the foregoing, (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports and (b) Client shall not permit Permitted Users to access or use the Licensed Software in violation of any U.S. export embargo, prohibition, or restriction.
12.4. Force Majeure. Either Party shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of such Party. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
12.5. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; (b) sent by registered mail, return receipt requested; or (c) sent overnight using an overnight air courier. Notices will be considered to have been given at the time of actual delivery if delivered in person, three (3) business days after posting if sent by mail, or one (1) day after delivery to an overnight air courier service. All such notices shall be sent to each Party at its address specified on the signature page of this Agreement, or addressed to such other address as that Party may have given by written notice in accordance with this provision.
12.6. Assignment. Neither Party shall assign its rights or delegate its obligations under this Agreement without the other Party’s prior written consent, and, absent such consent, any purported assignment or delegation shall be null, void and of no effect. Notwithstanding the foregoing, either Party may assign this Agreement, without requiring such prior consent, in connection with a merger or sale of all or substantially all of its assets, provided that the assignee agrees in writing to assume the assignor’s obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of Nagnoi and Client and their successors and permitted assigns.
12.7. Client Attribution; Marketing. Each Party may use and display the other Party’s name, logo, and success stories in its marketing materials. In addition, the Technology may include product attribution in a form similar to a hyperlink “Powered by Nagnoi”. Upon Client’s prior written approval, Nagnoi may issue a press release announcing Client’s selection of Nagnoi’s product and services and/or Client’s successful deployment of the Nagnoi products and services. Client agrees to have an authorized Client representative provide a quote for these press releases. Nagnoi may refer to Client in its marketing and promotional materials, verbally and/or in writing, provided Client has provided its approval prior to publication thereof.
12.8. Independent Contractors. The Parties are acting as independent contractors in making and performing this Agreement. The relationship arising from this Agreement does not constitute or create any partnership, joint venture, employment relationship or franchise between the Parties.
12.9. No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.10. Entire Agreement. This Agreement (together with all Orders and SOWs) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof.  No changes in or additions to this Agreement will be recognized unless incorporated herein by written amendment and signed by duly authorized representatives of both Parties. This Agreement shall apply and supersede any pre-printed, additional or boilerplate terms and conditions of any form submitted by either Party. The waiver by either Party of a breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof will not affect the remainder of this Agreement, which will remain in full force and effect and enforceable in accordance with its terms. Headings in this Agreement shall not be used to interpret or construe its provisions. 
12.11. No Solicitation. Each Party agrees that during the term of this Agreement, and for a period of one (1) year after the termination or expiration of this Agreement, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any employee or consultant of the other Party without the prior written consent of the other Party. In the event a Party offers employment or engagement (whether as an employee, independent contractor or consultant) to an employee or consultant of the other Party it shall pay to other Party an amount equal to one (1) year’s salary of such employee or consultant as to help offset costs the other Party will incur to replace the employee and provide training to the new employee(s). Neither Party shall be in breach of this Section 12.11 if it can show by written records that there was no solicitation of employment or engagement (whether as an employee, independent contractor or consultant) and the person hired or engaged responded to a job posting or general advertisement (for example, through online job postings) that was publicly available and placed in connection with an open position.

[End of Terms]
 

IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Agreement as of the Effective Date.

Address for Legal Notifications:
Nagnoi LLC
Attention: Legal
400 Juan Calaf Street PMB #155
San Juan, Puerto Rico 00918