PROFISEE® PLATFORM PRODUCTS END-USER LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: This Software Consumption Agreement ("Agreement") is a legal agreement between you (“Customer”) and Profisee Group, Inc. (“Profisee”) (Customer and Profisee together are the “parties”) for the Profisee Platform Products (defined below). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "Customer” shall refer to such entity. BY PROCEEDING TO CONFIGURE, PURCHASE, AND USE THIS VIRTUAL MACHINE; DOWNLOADING, TRANSFERRING, INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCTS; CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND PRINT OUT A COPY FOR YOUR RECORDS. IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT LOAD, DOWNLOAD, TRANSFER, INSTALL, COPY, OR USE THE PRODUCTS.

  1. Definitions. In addition to terms defined elsewhere in this Agreement or in the applicable Subscription, the following terms will have the following meanings:
    1. “Designated Computer/(s)” - means the “Designated Server Computer” (a virtual machine created through Microsoft’s Azure Marketplace) including the virtual machine name and other virtual machine configuration details required to issue the controlling license file which authorizes ongoing use of the Products following the initial grace period provided immediately following the virtual machine’s initiation.
    2. “Documentation” - means Profisee’s online user documentation for the Products delivered to Customer under this Agreement or otherwise attached to a Subscription.
    3. “Product/(s)” - means the Profisee computer software program(s) configured on the virtual machine, together with all Documentation, and any modifications, corrections, improvements, enhancements or updates to the Products provided to Customer from Profisee. The Products shall be provided only in machine-readable object code form. Product definitions and descriptions of the Products and the applicable use parameters are set forth set forth from time to time at profisee.com/azure/exhibits
    4. “Use” - means (1) installing or transferring any portion of any Products onto a virtual machine managed within Azure Marketplace (2) executing any portion of any Products, (3) accessing the Products from other systems or processes regardless of where such systems or processes are originating from, operating or executing in whole or part, or (4) accessing any Designated Computer for the purpose of obtaining or preparing information or data created through the execution of any Products.
  2. Grant of License; Term; Data Services; Use.
    1. Products License. PROFISEE grants Customer a term-based (non-perpetual), non-exclusive, non-transferable and non-assignable license to Use the Products (i) in accordance with the terms and conditions set forth in this Agreement, including, without limitation, the General Use parameters set forth in Section 2(a) below, and (ii) subject to any additional terms set forth by Microsoft or Profisee relating to use of Products through Microsoft Azure Marketplace and Microsoft Azure. Customer is expressly prohibited from using the Products in any manner to generate revenue or to process data for any third party. This prohibition includes, without limitation, use of Products with Customer’s clients’ or prospective clients’ data in the form of consulting, billed project work or deliverables including but not limited to reports, analyses, or analytical application derived by use of Products. This restriction includes use of client’s or prospective client’s data for any one-off exercise where the derived data or works from use of Products are provided back to a Customer client, prospective client or any party.
    2. General Use. Customer is authorized to Use the Products (i) only for Customer’s own internal business purposes; and (ii) only acting through the employees, officers, directors, agents and independent contractors of Customer. The Products shall not be used on data, programs or information which are not owned or legally licensed by Customer. Customer is authorized to Use the Server Products only on the Designated Server Computer so configured in Microsoft Azure. The server and client components of the Products shall only be installed or used up to the maximum permissible number of server and end-user installations as so configured in Microsoft Azure. Customer agrees not to employ any methods or devices to allow Use of the Products by more than the number of servers or end-users so configured in Microsoft Azure. Customer shall be directly liable to PROFISEE for any breach of this Agreement by Customer or third party contractors acting on the Products licensed hereunder. Customer is not authorized to access the Products’ services or libraries other than through the SDK, if licensed. Any such unauthorized use of the Products through non-published services or libraries shall be unsupported and constitute a breach of this Agreement.
    3. Restrictions. Customer shall not (and shall not allow any end-user or third party to) (i) decompile, disassemble, or otherwise reverse engineer the Products or attempt to discover any source code or underlying ideas or algorithms of the Products, (ii) remove any product identification, copyright or other notices embedded within the Products, (iii) modify or create a derivative work of the Products (except as otherwise expressly authorized by Profisee in writing), (iv) remove or export any Products in violation of applicable laws or regulations, or (v) relicense, provide, lease or lend the Products to any third party, or use the Products for timesharing or service bureau purposes.
    4. Ownership. As between the parties, PROFISEE shall retain all rights, title and interest in and to the Products including all modifications, derivative works or improvements, and all related intellectual property rights.
  3. Maintenance and Support of Products.
    1. Product Support Services. Provided Customer pays all fees agreed by Customer with Microsoft on Azure Marketplace when configuring and creating the virtual machines running the Products, Profisee shall provide the support services as set forth below and from time to time at https://www.profisee.com/azureregistration. Profisee provides to each registered customer (register at: https://www.profisee.com/azureregistration) one initial support call upon commencement of their first subscription and Customer accrues an additional support call with every additional 1,200 hours of usage, not to exceed six support calls per twelve month period. Customer may purchase additional support calls on an as-needed basis by contacting Profisee support. Such Support Services do not include Enhanced Support offerings (see https://www.profisee.com/azureregistration) which may be purchased separately.
  4. Confidentiality. The parties agree that (i) the Products, Documentation, pricing, Product roadmaps, discounts and the material terms of this Agreement are the confidential property of PROFISEE, and (ii) any other confidential business, technical, financial or other information disclosed by Profisee is the confidential information of Profisee (collectively, “Confidential Information”). Customer agrees to only use the Confidential Information in a manner consistent with this Agreement. This Agreement does not transfer to a party any title to or ownership rights in the Confidential Information. Customer shall protect the confidentiality of the Confidential Information and not disclose it to any person, association or entity except the party's employees and consultants who have confidentiality obligations consistent with this section, and then only to the extent necessary for the permitted use of the Confidential Information and consistent with the protection required by this Section. The restrictions of this Section shall apply for the greater of (i) the term of this Agreement and for two years thereafter, (ii) the time period dictated by any applicable law, statute or regulation, or (iii) for any Confidential Information that constitutes a trade secret, as long as such Confidential Information remains a trade secret under applicable law.
  5. Disclaimer. PROFISEE PROVIDES THE PRODUCTS AND SUPPORT SERVICES AS IS AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND. ALL OTHER WARRANTIES AND REPRESENTATIONS CONCERNING PRODUCTS, SUPPORT SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, ARE HEREBY DISCLAIMED AND EXCLUDED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  6. Payment Terms; Expenses; Taxes.
    1. Payment; Suspension Due to Non-Payment. Customer shall timely pay applicable Azure fees and taxes, if any. If Customer does not timely pay applicable Azure fees and taxes to Microsoft, Profisee may directly collect such fees and taxes from Customer and Customer agrees to pay such fees and applicable taxes to Profisee. Customer understands and agrees that until such time it makes full payment of the Azure fees, Profisee will provide temporary operation of the Products. If Customer does not timely pay the applicable Azure fees and taxes, if any, Profisee may directly collect such fees from Customer. Customer also understands and agrees that each authorization code is valid for three months to twelve months from delivery. After that period, Customer must request a new authorization code. In no event will PROFISEE be liable to Customer for Customer’s inability to utilize the Products in conjunction with the authorization code timing out or otherwise preventing use of the Products.
  7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROFISEE WILL NOT BE LIABLE TO USER FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST SAVINGS, OR FOR THE COST OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE REGARDING THIS AGREEMENT, EVEN IF PROFISEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PROFISEE BE LIABLE FOR ANY DAMAGES UNDER ANY THEORY OF LAW OR EQUITY IN AN AMOUNT GREATER THAN THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PREVIOUS THREE MONTH PERIOD.
  8. Termination.
    1. Termination for Material Breach or Failure to Pay any Required Fees. Profisee may terminate this Agreement and all access to the Products upon a material breach of the Agreement, if Customer does not cure the breach within ten days after receipt of written or emailed notice from Profisee. Failure to pay any required fee is considered a material breach by Customer. Termination for breach shall not release Customer from any liability to Profisee for such breach.
  9. Audit. PROFISEE may at any time, based on capabilities provided by Microsoft to Profisee as part of Azure, or upon ten days prior written notice, if access to Customer’s configured use of the Products is required, and at its expense, audit Customer's use of the Products. Any such audit shall be conducted during regular business hours at Customer's facilities, shall not unreasonably interfere with Customer's business activities, and shall not exceed ten business days. If an audit reveals that Customer has underpaid fees to PROFISEE, Customer shall be invoiced for such underpaid fees based on the prices and fees in effect pursuant to this Agreement. Audits shall be conducted no more than once annually.
  10. General Provisions.
    1. Amendments. Customer may not amend this Agreement except in a writing signed by Profisee. Profisee may modify this Agreement by posting a revised version on Azure and Customer’s continued use of or access to the Products constitutes Customer’s agreement to such modified terms and policies. It is Customer’s responsibility to timely check all posted updates to this Agreement.
    2. Entire Agreement; No Third Party Beneficiaries. This Agreement, the Azure Marketplace terms and conditions and all Profisee policies referenced herein in URLs contain all the understandings between the parties on the subject matter of this Agreement and supersedes any prior oral or written understandings. There are no other inducements, warranties, representations or agreements regarding the matters herein between the parties except as set forth in this Agreement. There are no third party beneficiaries to this Agreement. If a purchase order or similar document is required by Customer, the parties agree that any additional terms shall not become part of the Agreement and are deemed rejected.
    3. Applicable Law. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, USA, excluding that body of law applicable to choice of law. The parties consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in the State of Georgia, USA, for all actions concerning this Agreement. Notwithstanding the foregoing, Profisee may seek relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of Profisee’s Confidential Information or intellectual property rights. To the fullest extent permitted by law, each party expressly waives (on behalf of itself and on behalf of any person or entity claiming through such party) any right to a trial by jury in any action or counterclaim of any kind connected with this Agreement. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees from the non-prevailing party.
    4. Waivers. The failure or delay of any party to exercise any right or option arising out of a breach of this Agreement shall not be deemed a waiver of any right or option with respect to any subsequent or different breach, or the continuance of any existing breach, after demand for strict performance.
    5. Interpretation. If any provision of this Agreement is declared void or unenforceable for particular facts or circumstances, such provision shall remain in full force and effect for all other facts or circumstances. If any provision of this Agreement is declared entirely void or unenforceable, such provision shall be deemed severed from this Agreement, which shall otherwise remain in full force and effect.
    6. Notices. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by nationally recognized overnight commercial courier service (e.g., UPS, FedEx) to the other party at its current address, or such new address as may from time to time be supplied hereunder by the parties. Profisee may also provide notice to Customer via the email address on file with the Azure Marketplace.
    7. Assignment. Neither this Agreement nor any rights, licenses, or obligations hereunder, may be assigned by Customer without the prior written consent of the Profisee. Profisee may assign this Agreement without consent upon the sale of all or substantially all its assets, merger, or reorganization. Any attempted assignment in violation of this Agreement shall be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.
    8. Relationship of the Parties. Each party is an independent contractor in the performance of this Agreement. Neither party nor its agents or employees are the representatives of the other party for any purpose and neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
    9. Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance (other than payment of money for breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party.
    10. Reference. PROFISEE may use Customer’s name, in a listing of Profisee’s customers.
    11. Survival. Upon termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect.