THANK YOU FOR CHOOSING THIS FORTRESSIQ INC. SOFTWARE PRODUCT.  BY CLICKING ON THE “I AGREE” BUTTON OR BY DOWNLOADING OR OTHERWISE INSTALLING THE SOFTWARE, YOU (“CUSTOMER” OR “YOU”) ARE AGREEING TO THIS AGREEMENT.  IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, PLEASE CONTACT YOUR SALES REPRESENTATIVE.  IN THIS AGREEMENT, “FORTRESSIQ” MEANS FORTRESSIQ INC.
© 2020 FORTRESSIQ INC.  All Rights Reserved.  Warning:  This computer program is protected by copyright laws and international treaties.  Unauthorized use, duplication or distribution of this program or any portion of it without the express written consent of FORTRESSIQ is strictly prohibited.  
TERMS AND CONDITIONS
1.  Grant of License.  Subject to the terms and conditions contained in this Agreement, FORTRESSIQ hereby grants Customer, beginning on the date Customer first downloads the FORTRESSIQ Software (the “Effective Date”) and during the term specified in Section 13, a non¬-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide license to use, solely for internal business purposes (including use by external users, namely employees, customers, and partners), the object code of the FORTRESSIQ Software.  The FORTRESSIQ Software and the Support provided pursuant to Section 4, if any, shall constitute the “Services”).  Customer may view the source code of the FORTRESSIQ Software, however, FORTRESSIQ shall not provide any support or maintenance in respect of any modifications to the FORTRESSIQ Software.  The FORTRESSIQ Software may not be distributed to any other person or entity except as expressly set forth below in this Section 1.  If Customer downloaded or received the FORTRESSIQ Software for evaluation only, use of the FORTRESSIQ Software is limited to internal evaluation purposes only, and not for production, for a period of thirty (30) days after download or delivery (unless otherwise agreed in writing by FORTRESSIQ), unless earlier terminated by FORTRESSIQ pursuant to Section 12.  
2.  Proprietary Rights.  Customer acknowledges that FORTRESSIQ controls all right, title and interest in and to the FORTRESSIQ Software and all intellectual property rights relating thereto. The FORTRESSIQ Software is the valuable intellectual property of FORTRESSIQ and constitutes confidential and proprietary information of FORTRESSIQ. FORTRESSIQ does not grant to Customer any other right or license, either express or implied, in the FORTRESSIQ Software except as specified in this Agreement, and Customer's use of the FORTRESSIQ Software shall be subject to the restrictions set forth in this Agreement.  
3.  Restrictions on Use.  Except as expressly permitted in this Agreement, Customer shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer the FORTRESSIQ Software (except to the extent expressly permitted under applicable law); (ii) provide, lease, lend, use for timesharing or otherwise use or allow others to use the FORTRESSIQ Software to or for the benefit of third parties; (iii) incorporate into or with other hardware or software, or create a derivative work of any part of the FORTRESSIQ Software; (iv) disseminate performance information or analysis from any source relating to the FORTRESSIQ Software; (v) remove any product identification, copyright notice or other proprietary legend from the FORTRESSIQ Software; or (vi) use only the FORTRESSIQ Software product(s) for which a subscription has been purchased and corresponding license key(s) have been issued. 
4.  Support.  “Support” under this Agreement means those services which Customer has purchased and FORTRESSIQ has agreed to provide under the terms and conditions set forth at http://www.fortressiq.com/support.  
5.  Enhancements and Upgrades.  During the term of this Agreement, FORTRESSIQ shall provide to Customer enhancements and upgrades, if any, of the FORTRESSIQ Software it makes generally available, free of additional charge.  
6.  Export Control.  Customer will comply with all relevant laws and regulations regarding export of FORTRESSIQ Software.  Customer shall indemnify and hold FORTRESSIQ harmless from any claim arising out of a breach of this Section 6.
7.  Payment Terms.  All payments hereunder shall be in U.S. dollars.  Annual Subscription Fees are exclusive of, and Customer shall pay for, if applicable:  shipping; any sales, use, property, value added or similar taxes; federal, state or local or other charges imposed on or with respect to the FORTRESSIQ Software or its delivery, use or possession; but not including taxes based upon the net U.S. income of FORTRESSIQ.  If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to FORTRESSIQ, then the sum payable to FORTRESSIQ will be increased by the amount necessary so that FORTRESSIQ receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
Customer will make payment within thirty (30) days of the date of the invoice (the “due date”).  For all payments not received within thirty (30) days of the due date, a late payment fee shall accrue daily on such unpaid amounts at the rate of one-and-one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower.  FORTRESSIQ shall also be entitled to any reasonable collection costs, including attorneys' fees.  Upon expiration of the initial term, the Services shall be automatically renewed at FORTRESSIQ's then-current pricing, unless Customer notifies FORTRESSIQ in writing at least ninety (90) days prior to the scheduled renewal date of its intention not to renew.  If FORTRESSIQ has approved Customer to be invoiced, FORTRESSIQ will invoice Customer for the fees due as of the date of this Agreement and upon the submission of any future purchase order.  Any and all payments made by Customer pursuant to this Agreement are non-refundable.  FORTRESSIQ reserves the right to suspend or cancel performance of all or part of the Services and/or change its credit terms if actual payment has not been received within sixty (60) days of the invoice date.
8.  Warranty and Liability; Indemnification.  FORTRESSIQ expressly warrants that it is the owner or Customer of FORTRESSIQ Software, including any and all copyrights and trade secrets, and has the right and authority to enter into this Agreement and to license FORTRESSIQ Software to Customer in accordance with the terms herein as of the Effective Date.  For the period beginning on the original date of delivery of the FORTRESSIQ Software and continuing for thirty (30) days thereafter, FORTRESSIQ expressly warrants that the FORTRESSIQ Software will perform substantially in accordance with the written specifications contained in the documentation provided with the FORTRESSIQ Software.  
FORTRESSIQ shall indem¬nify and hold harmless Customer and its officers, employees, agents and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the FORTRESSIQ Software infringes or violates any United States patents, copyrights, trade secrets, or other proprietary rights of a third party.  Customer may, at its own expense, assist in such defense if it so chooses, provided that FORTRESSIQ shall control such defense and all negotiations relating to the settlement of any such claim.  Customer shall prompt-ly provide FORTRESSIQ with written notice of any claim which Customer believes falls within the scope of this Section 8.  In the event that the FORTRESSIQ Software or any portion thereof is held to constitute an infringement and its use is enjoined, FORTRESSIQ may, at its sole option and expense, (i) modify the infringing FORTRESSIQ Software so that it is non-infringing, (ii) procure for Customer the right to continue to use the infringing FORTRESSIQ Software, or (iii) replace said FORTRESSIQ Software with suit¬able, non-infringing software.  Notwithstanding the foregoing, FORTRESSIQ will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the FORTRESSIQ Software made by or for Customer or any other party that were not provided by FORTRESSIQ or authorized by FORTRESSIQ in writing; (ii) use outside the scope of the license granted hereunder, (iii) use of a superseded or previous version of the FORTRESSIQ Software if infringement would have been avoided by the use of a newer version which FORTRESSIQ made available to Customer, (iv) use of the FORTRESSIQ Software in combination with any other software, hardware or products not supplied by FORTRESSIQ, or (v) third-party open source software.  This indemnity obligation is subject to the limitation of liability and the other pertinent terms and conditions of this Agreement.
EXCEPT AS PROVIDED IN THIS SECTION, ALL SOFTWARE LICENSED HEREUNDER IS PROVIDED “AS IS.”  IN ADDITION, THE FOREGOING WARRANTIES SHALL NOT APPLY IN THE EVENT THAT CUSTOMER BREACHES ANY OF THE RESTRICTIONS ON USE OF THE FORTRESSIQ SOFTWARE.  THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 
IN NO EVENT SHALL FORTRESSIQ BE LIABLE TO CUSTOMER OR ANY THIRD PARTY OR END USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES INCLUDING LOSS OF PROFITS, OR ANY AMOUNTS IN EXCESS OF THE FEES ACTUALLY PAID TO FORTRESSIQ BY CUSTOMER (THE FOREGOING BEING COLLECTIVELY CALLED “DAMAGES”) INCURRED BY CUSTOMER OR ANY OTHER THIRD PARTY.  SUCH NON-LIABILITY FOR DAMAGES SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF FORTRESSIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.  Third-Party Software.  Customer agrees to be bound by all of the terms and conditions applicable to end users of any third-party software licenses to products embedded in or distributed with the FORTRESSIQ Software.  The third-party software license terms and conditions are set forth in the "Third-Party Notices" file delivered with certain FORTRESSIQ Software products.  Customer agrees not to use or access any third-party software as a "stand-alone product," or in a manner other than in connection with the FORTRESSIQ Software.  FORTRESSIQ and its licensors make no warranties, express or implied, with respect to the third-party software, and Customer agrees not to assert any claims against FORTRESSIQ's third-party licensors relating to this Agreement.  Such third-party licensors of FORTRESSIQ are intended third-party beneficiaries of this Agreement.  Source code may not be provided for all third-party software, and Customer agrees not to reverse engineer, decompile, or otherwise derive the source code of any software provided hereunder.
10.  No Agency.  The Parties are independent contractors. Neither Party is an employee, agent, joint venturer or legal representative of the other Party for any purpose. Neither Party shall have the authority to enter into any legal or equitable obligation for the other Party. Under no circumstances may either Party hold itself out to have agency authority for the other Party. The Parties agree not to make false or misleading statements, claims or representations about the other Party, its products or the relationship between the Parties.
11.  Governing Law.  This Agreement is in accordance with, and shall be governed by and construed under, the laws of the State of California and applicable United States statutes.  Such governance and construction explicitly excludes the State of California’s body of laws governing conflict of laws and the 1980 United Nations Convention on Contracts for the International Sale of Goods.  Customer hereby irrevocably consents to jurisdiction of the state or federal courts located in San Francisco County, California.  To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to this Agreement in any competent jurisdiction.
12.  Term; Termination.  This Agreement and the licenses granted hereunder shall remain in effect for a period of one (1) year from the Effective Date, unless a different term is ordered and paid for by Customer, and unless earlier terminated as set forth herein.  FORTRESSIQ may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement that Customer fails to cure within sixty (60) days following written notice specifying such breach.  In the event of termination of this Agreement for any cause, all rights granted hereunder automatically revert to the granting Party and all licenses shall cease.
13.  Waiver.  The Party entitled to the benefit of any provision of this Agreement may waive said provision. Neither Party shall be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized officer of such Party.  Such a waiver shall be limited specifically to the extent set forth in said writing.  Waiver as to one event shall not be construed as waiver of any right or remedy as it relates to any subsequent event.
14.  Force Majeure.  If by reason of Force Majeure including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder and all acts of God, a Party is unable to perform in whole or in part its obligations as set forth in this Agreement, except for payment obligations, such Party shall not be liable to the other for its failure to perform said obligations.
15.  Severability.  If the application of any provision or provisions of this Agreement to any particular set of facts or circumstances is held to be invalid or unenforceable by a court of competent jurisdiction, the validity of said provision or provisions to any other particular set of facts or circumstances shall not, in any way, be affected.  Such provision or provisions shall be reformed without further action by the Parties to the extent necessary to make such provision or provisions enforceable when applied to that set of facts or circumstances.
16.  Survival.  The following sections shall survive the termination of this Agreement for any cause: 2, 3, 6, 8, 9, and 11.
18.  Rules of Construction.  As used in this Agreement, all terms used in the singular shall be deemed to include the plural, and vice versa, as the context requires. Descriptive headings are inserted for convenience only and shall not be utilized in interpreting this Agreement. 
19.  Amendment.  This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
20.  Entire Agreement.  This Agreement constitutes the exclusive terms and conditions with respect to the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions hereunder.  This Agreement represents the final, complete and exclusive statement of the agreement between the parties with respect to subject matter hereof and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter hereof are merged therein.
21.  Publicity.  During the term of this Agreement, Customer and FORTRESSIQ may engage in co-marketing and publicity programs, including advertisements in trade and other publications, only upon written approval of both parties.  Such approval shall not be unreasonably withheld.  Notwithstanding the foregoing, written approval shall not be necessary with respect to FORTRESSIQ's use of Customer's name and logo as a reference and in marketing materials. 
U.S. GOVERNMENT END-USERS: 
This Software Product and the Related Materials are "commercial items" as that term is defined in 48 C.F.R. 2.101 (October 1995) consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (September 1995).  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995), if the Customer hereunder is the U.S. Government or any agency or department thereof, the Software and the Related Materials are licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.