These General Software and Services Terms (“General Terms”) are between BoxBuild Inc. (“CodeCargo,” “we,” or “us”) and the legal entity whose representative signed an order incorporating these General Terms by reference (“Customer,” “you,” or “your”).  By signing an order that incorporates these General Terms, you agree to follow and be bound by that order and these General Terms.

1.              Definitions. Capitalized terms shall have the meanings set forth in Exhibit A.

2.              Cloud Services.  If you are licensing Cloud Services from CodeCargo, the cloud service terms set forth on Exhibit B apply in addition to all other relevant provisions of these General Terms. 

3.              Downloadable Software.  If you are licensing Downloadable Software from CodeCargo, the terms set forth on Exhibit C apply in addition to all other relevant provisions of these General Terms. 

4.              Professional Services.  If you are obtaining professional services from CodeCargo, the terms set forth on Exhibit D apply in addition to all other relevant provisions of these General Terms.

5.              Acceptable Use Policy (“AUP”).  The Software may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in CodeCargo’s AUP.  You agree to comply with the AUP throughout the term of this Agreement.

6.              Fees and Payment. Customer shall pay CodeCargo the Fees within thirty (30) days from the invoice date without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting CodeCargo’s other rights and remedies: (i) CodeCargo may charge interest on the past due amount at the rate of 1.5% per month (or the maximum rate allowed by law, if lower) accruing from the due date until paid; (ii) Customer shall reimburse CodeCargo for all reasonable costs incurred by CodeCargo in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five days or more, CodeCargo may suspend Customer’s and all Authorized Users’ access to any portion or all of the Cloud Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on CodeCargo’s income.

7.              Confidential Information. From time to time during the term of the Agreement, CodeCargo and Customer may disclose or make available to the other party Confidential Information. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to 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 first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure and non-use with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

8.              Privacy Policy. CodeCargo complies with its Privacy Policy in providing the Software and Professional Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Software or Professional Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.

9.              Intellectual Property Ownership.  As between you and us, (i) we own all right, title, and interest, including all intellectual property rights, in and to the Software, and (ii) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. CodeCargo reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the CodeCargo IP.

10.           Feedback.  If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, any Feedback, we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

11.           Technical Support.  Technical support consists of CodeCargo’s technical support services included as part of Software you may have ordered from CodeCargo in an Order. You agree to cooperate with CodeCargo and provide the access, resources, materials, personnel, information and consents that CodeCargo may require in order to perform the technical support services. CodeCargo’s technical support policies are subject to change at CodeCargo’s discretion; however, CodeCargo policy changes will not result in a material reduction in the level of technical support services provided for supported Software during the Service Period.

(i)             CodeCargo shall indemnify, defend, and hold Customer harmless from and against any and all Losses incurred by Customer resulting from any Third Party Claim that the Software, or any use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies CodeCargo in writing of the Third Party Claim, cooperates with CodeCargo, and allows CodeCargo sole authority to control the defense and settlement of such Third Party Claim.

(ii)            If such a Third Party Claim is made or CodeCargo reasonably anticipates such a Third Party Claim will be made, Customer agrees to permit CodeCargo, at CodeCargo’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If CodeCargo determines that neither alternative is reasonably available, CodeCargo may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

(iii)           CodeCargo will have no obligation under this Section 12(a) to the extent a Third Party Claim arises from: (A) the combination of the Software with hardware, software, data, or processes not furnished by CodeCargo; (B) modification of the Software by any party other than CodeCargo or its subcontractors; (C) use of any version of the Software other than the then-current, unaltered release of the Software,  if the claim would have been avoided by installing an update or upgrade made available at no additional charge; (D) use of the Software outside the scope of the Documentation or the Agreement; (E) Open-Source Components embedded in or accessed through the Software, to the extent the applicable open-source license prohibits such indemnification; or (F) Customer Data or Third-Party Products.

(iv)           This Section 12(a) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third Party Claims that the Software infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.

(b)            Customer Indemnification. Customer shall indemnify, hold harmless, and, at CodeCargo’s option, defend CodeCargo and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or privacy rights; or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Software in a manner violative of or not authorized by this Agreement; provided that Customer may not settle any Third Party Claim against CodeCargo unless CodeCargo consents to such settlement, and further provided that CodeCargo will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice.

(a)            IN NO EVENT WILL CODECARGO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CODECARGO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

(b)            SUBJECT TO SECTION 13(C) BELOW, IN NO EVENT WILL CODECARGO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO CODECARGO UNDER THE RELEVANT ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

(c)            Notwithstanding anything to the contrary, CodeCargo’s aggregate liability for its indemnification obligations under Section 12 will not exceed two (2) times the liability cap set forth in Section 13(b) above.

(a)            Term. Unless terminated earlier pursuant to this Agreement’s express provisions, Orders shall continue for the applicable Service Period set forth therein, provided that, unless otherwise set forth in the applicable Order, the Service Period of each Order will automatically  renew for additional successive one-year terms unless either party gives the other party written notice of non-renewal at least sixty days prior to the expiration of the then-current Service Period.

(b)            Termination. In addition to any other express termination right set forth in this Agreement:

(i)             Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

(ii)            Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c)            Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the CodeCargo IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. Moreover, if CodeCargo terminates any Orders pursuant to Section 14(b), you must also pay all sums remaining unpaid for the terminated Orders, plus related taxes and expenses, within 30 days of such termination.

(d)            Survival. This Section 14(d), Sections 5, 6, 7, 9, 10, 12, 13, 16, 17, 20, 21, 22, and 23, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

15.           Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify these General Terms from time to time, and that modified General Terms become effective on posting. You will be notified of modifications through notifications or posts on https://codecargo.com/document-center or direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. If you object to a material modification, your sole remedy is to terminate the affected Order within thirty (30) days of notice and receive a pro-rated refund of prepaid, unused Fees.  Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms.

16.           Export Regulation. The Software utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software or the software or technology included in the Cloud Services to, or make the Software or the software or technology included in the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or the software or technology included in the Software available outside the US.

17.           US Government Rights. Each of the software components that constitute the Software and the Documentation is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Software and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.

18.           Determination of Appropriateness.  Prior to entering into an Order governed by the Agreement, you are solely responsible for determining whether the Software meet your technical, business, or regulatory requirements. CodeCargo will cooperate with your efforts to determine whether use of the Software is consistent with those requirements. Additional fees may apply to any additional work performed by CodeCargo or changes to the Software. You remain solely responsible for your regulatory compliance in connection with your use of the Software.

19.           Order of Precedence.  It is expressly agreed that the terms of the Agreement and any CodeCargo Order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-CodeCargo document, and no terms included in any such purchase order, portal, or other non-CodeCargo document shall apply to your CodeCargo Order. In the event of any inconsistencies between the terms of an order and the Agreement, the Order shall take precedence; however, unless expressly stated otherwise in an order, the terms of the Data Processing Agreement (defined in Exhibit B) shall take precedence over any inconsistent terms in an Order. No third party beneficiary relationships are created by the Agreement.

20.           Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Maryland. The Uniform Computer Information Transactions Act does not apply to the Agreement or to orders placed under it.  To the extent that the Uniform Computer Information Transactions Act may be deemed applicable, the parties hereby opt out of its application pursuant to the provisions allowing such exclusion.  Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Maryland in each case located in the city of Bethesda and County of Montgomery, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

21.           Publicity.  Neither party shall issue press releases or use the other’s name or logo without prior written consent, except CodeCargo may list Customer as a client in factual marketing materials.

22.           Force Majeure.  Except for Customer’s obligation to pay all undisputed Fees, neither party will be liable for any delay or failure in performance caused by circumstances beyond its reasonable control (including power or Internet outages, acts of God, labor disputes, acts or omissions of third parties, or governmental actions). The affected party must give prompt written notice; its obligations are suspended for the duration of the event and any reasonable recovery period, and CodeCargo may adjust delivery schedules to reflect the resulting delay.

23.           Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Software or Professional Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Except for actions for nonpayment or breach of CodeCargo’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.  The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.

24.           Integrator Terms. Where Customer is, or engages, an Integrator in connection with the Software or Services, Exhibit E applies in addition to these General Terms.

Definitions

(a)            “Aggregated Statistics” means data, metrics, or other information concerning the performance, operation, or use of the Cloud Services that CodeCargo collects, generates, or derives from (i) Customer’s access to or use of the Cloud Services and (ii) Customer Data, provided that such data is combined with similar data from other CodeCargo customers or sources, is de-identified and anonymized, and cannot reasonably be used to identify Customer, any Authorized User, or any individual. Aggregated Statistics may include, without limitation, usage patterns, system or network performance metrics, error or diagnostic reports, and benchmarking or analytics information.

(b)            “Agreement” means the General Terms and any Orders incorporating them.

(c)            “AUP” means CodeCargo’s acceptable use policy located at https://codecargo.com/document-center, as may be amended from time to time, which is incorporated herein by reference.

(d)            “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Cloud Services or Downloadable Software under the rights granted to Customer pursuant to this Agreement, and (ii) for whom access to the Cloud Services or Downloadable Software has been purchased hereunder.

(e)            “CodeCargo IP” means the Cloud Services, the Downloadable Software, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, CodeCargo IP includes Aggregated Statistics and any information, data, or other content derived from CodeCargo’s monitoring of Customer’s access to or use of the Cloud Services, but does not include Customer Data.

(f)             “Confidential Information” means information about a party’s business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally, electronic, in writing, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party.

(g)            “Cloud Services” means the software provided by CodeCargo on a software-as-a-service basis that is listed in Customer’s Order.

(h)            “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.

(i)             “Data Processing Agreement” means the then current CodeCargo data processing agreement, available upon request from CodeCargo, and incorporated herein by reference.

(j)             “Deliverables” means anything developed and delivered by CodeCargo in an Order under Exhibit D.

(k)            “Documentation” means CodeCargo’s user manuals, handbooks, and guides relating to the Software provided by CodeCargo to Customer either electronically or in hard copy form.

(l)             “Downloadable Software” means the downloadable software made available by CodeCargo that is listed in Customer’s Order.

(m)          “Feedback” means suggestions or recommended changes related to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.

(n)            “Fees” means the fees set forth in your Order(s).

(o)            “Hybrid Software” means any software agent, application, or tool that CodeCargo makes available to you for download specifically for purposes of facilitating your access to, operation of, and/or use with, the Cloud Services.

(p)            “Losses” means any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees.

(q)            “Open-Source Components” means any software, program, library, or code that is licensed under a license approved by the Open Source Initiative or any similar free or open-source license.

(r)             “Order” means a description of the products and services that CodeCargo will provide to Customer that references these General Terms and is signed by an authorized representatives of CodeCargo and Customer.

(s)            “Privacy Policy” means CodeCargo’s privacy policy set forth at https://codecargo.com/document-center and incorporated herein by reference.

(t)             “Professional Services” means the consulting, training, installation, or other professional services you order from CodeCargo pursuant to an Order.

(u)            “Service Period” means the period set forth in the Order during which Customer may use the Software.

(v)            “SLA” means CodeCargo’s service level agreement identified, if applicable, in an Order and incorporated herein by reference.

(w)           “Service Suspension” means a suspension of the Cloud Services pursuant to Sections 9 (i), (ii), or (iii) of Exhibit B.

(x)            “Service Warranty” means the warranty set forth in Section 9(b) of Exhibit B.

(y)            “Software” means all software provided by CodeCargo to Customer hereunder, including all Cloud Services and all Downloadable Software.

(z)            “Third Party Claim” means any third party claim, suit, action, or proceeding.

(aa)         “Third Party Products” means any products, content, platforms, applications, services, information, websites, Open-Source Components, or other materials that are owned by third parties and are incorporated into or accessible through the Software.

Cloud Services Terms

(a)            Subject to and conditioned on your payment of Fees and your compliance with all other terms and conditions of the Agreement, CodeCargo hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services and related Documentation during the Service Period solely for your internal business operations. You may allow your Authorized Users to use the Cloud Services for this purpose, and you are responsible for their compliance with the Agreement and your Order.  CodeCargo shall provide you the necessary passwords and access credentials to allow you to access the Cloud Services.

(b)            Your Order describes the Cloud Services. During the Service Period, we may update the Cloud Services to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Products. CodeCargo updates to the Cloud Services will not materially reduce the level of performance, functionality, security or availability of the Cloud Services during the Service Period of your Order.

(a)            Once placed, your Order is non-cancelable and the sums paid nonrefundable, except as provided in the Agreement. Fees for Cloud Services listed in an Order are exclusive of taxes and expenses, unless expressly stated otherwise in your Order.

(b)            If you exceed the quantity of Cloud Services ordered, then you promptly must purchase and pay fees for the excess quantity.

(a)            Account Use. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.

(b)            Customer Data. You hereby grant to CodeCargo a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for CodeCargo to provide the Cloud Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.

(c)            Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.

(d)            System Requirements.  Customer shall maintain a suitable and compatible system meeting the minimum technical requirements of the Cloud Services identified in the Documentation. Customer is responsible for obtaining its own communications infrastructure required to use the Cloud Services.  At its sole expense, Customer shall operate and maintain a suitable internet connection and a browser compatible with the Cloud Services. 

4.              Third Party Products.  The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Cloud Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third Party Products, then you should not install, access, or use such Third Party Products.

(a)            You or your licensors retain all ownership and intellectual property rights in and to your Customer Data. We or our licensors retain all ownership and intellectual property rights in and to the Cloud Services, derivative works thereof, and anything developed or delivered by or on behalf of us under the Agreement.

(b)            You may have access to Third Party Products through use of the Cloud Services. Unless otherwise stated in your Order, all ownership and intellectual property rights in and to Third Party Products and the use of such content is governed by separate third party terms between you and the third party.

(c)            You have the authority to and do grant us the right to host, use, process, display and transmit your Customer Data to provide the Cloud Services pursuant to and in accordance with the Agreement and your Order. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of your Customer Data, and for obtaining all rights related to your Customer Data required by CodeCargo to perform the Cloud Services.

(d)            You shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation, for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (iv) remove any proprietary notices from the Cloud Services or Documentation; or (v) use the Cloud Services or Documentation 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, regulation, or rule.

(a)            Customer Data residing in the Cloud Services will be considered your Confidential Information. CodeCargo will protect the confidentiality of your Customer Data residing in the Cloud Services for as long as such information resides in the Cloud Services.

(b)            Notwithstanding anything to the contrary in this Agreement, CodeCargo may monitor Customer’s use of the Cloud Services and collect and compile Aggregated Statistics to be used by CodeCargo in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services. As between CodeCargo and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by CodeCargo. You acknowledge that CodeCargo may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that CodeCargo may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, including without limitation to assist in managing CodeCargo’s product and service portfolio, to help CodeCargo address deficiencies in its product and service offerings, and for license management purposes.

(a)            In order to protect your Customer Data provided to CodeCargo as part of the provision of the Cloud Services, CodeCargo will comply with commercially reasonable administrative, physical, technical and other safeguards.

(b)            To the extent your Customer Data includes Personal Information (as that term is defined in the applicable data privacy policies and the Data Processing Agreement (as defined below)), CodeCargo will furthermore comply with the following:

(i)             the relevant CodeCargo privacy policies applicable to the Cloud Services are available at https://codecargo.com/document-center; and

(ii)            the applicable version of the Data Processing Agreement in effect on the effective date of an Order. The version of the Data Processing Agreement applicable to your Order will remain in force during the Service Period of your Order. In the event of any conflict between the terms of the Data Processing Agreement and the terms of the Agreement (including any applicable CodeCargo privacy policies), the terms of the Data Processing Agreement shall take precedence.

(c)            Without prejudice to Section 5(a) or 5(b) above, you are responsible for (i) any required notices, consents and/or authorizations related to your provision of, and our processing of, your Customer Data (including any Personal Information) as part of the Cloud Services, (ii) any security vulnerabilities, and the consequences of such vulnerabilities, arising from your Customer Data, including any viruses, Trojan horses, worms or other harmful programming routines contained in your Customer Data, and (iii) any use by you or your Authorized Users of the Cloud Services in a manner that is inconsistent with the terms of the Agreement. To the extent you disclose or transmit your Customer Data to a third party, we are no longer responsible for the security or confidentiality of such content outside of CodeCargo’s control.

(d)            Unless otherwise specified in your Order, your Customer Data may not include any data that imposes specific data security, data protection, or regulatory obligations on CodeCargo in addition to or different from those specified in the Data Processing Agreement or the Agreement. If your Customer Data includes any of the foregoing data (e.g., certain regulated health or payment card information), CodeCargo will process such data only pursuant to the terms of your Order, the Data Processing Agreement, and the Agreement. You are responsible for complying with your specific regulatory, legal, or data security obligations which may apply to such data. If available for the Cloud Services, you may purchase additional services from us designed to address specific data security, data protection or regulatory requirements applicable to such data.

(a)            Service levels and credit mechanics are set forth in the SLA. Credits under the SLA are Customer’s sole remedy for any failure to meet the service levels, and Customer agrees that service credits awarded under the SLA fully satisfy any liability for downtime or failed response targets.

(b)            Each party represents that it has validly entered into the Agreement and that it has the power and authority to do so. We warrant that during the Service Period, we will perform the Cloud Services using commercially reasonable care and skill and in all material respects as described in the then-current Documentation. If the Cloud Services provided to you were not performed as warranted, you must promptly provide us with a written notice that describes the deficiency in the Cloud Services (including, as applicable, the service request number notifying us of the deficiency in the Cloud Services). For clarity, a failure to meet any uptime or response target in the SLA, standing alone, does not constitute a breach of this Service Warranty. 

(c)            You warrant to us that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data, and you are fully authorized to transmit the Customer Data to us as contemplated by this Agreement.

(d)            WE DO NOT WARRANT THAT THE CLOUD SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT WE WILL CORRECT ALL SERVICES ERRORS, OR THAT THE CLOUD SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE CLOUD SERVICES THAT ARISE FROM YOUR MISUSE OR INFRASTRUCTURE, YOUR CUSTOMER DATA, THIRD PARTY PRODUCTS OR SERVICES, CONTENT PROVIDED BY THIRD PARTIES, OR BETA OR PREVIEW FEATURES.

(e)            FOR ANY BREACH OF THE SERVICE WARRANTY, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT CLOUD SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT CLOUD SERVICES AND WE WILL REFUND TO YOU THE FEES FOR THE TERMINATED CLOUD SERVICES THAT YOU PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.

(f)             TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

9.              Suspension.  Notwithstanding anything to the contrary in this Agreement, CodeCargo may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if: (i) CodeCargo reasonably determines that (A) there is a threat or attack on any of the CodeCargo IP; (B) Customer’s or any other Authorized User’s use of the CodeCargo IP disrupts or poses a security risk to the CodeCargo IP or to any other customer or vendor of CodeCargo; (C) Customer or any other Authorized User is using the CodeCargo IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) CodeCargo’s provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of CodeCargo has suspended or terminated CodeCargo’s access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or (iii) authorized under Section 6 of the General Terms. CodeCargo shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. CodeCargo shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. CodeCargo will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.

(a)            Cloud Services shall be provided for the Service Period defined in your Order.

(b)            If CodeCargo terminates any Orders as specified in the preceding sentence, you must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for terminated order(s) plus related taxes and expenses. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the Agreement and/or your Order, you may not use those Cloud Services ordered.

(c)            At the end of the Service Period, we will make your Customer Data (as it existed at the end of the Service Period) available for retrieval by you during a retrieval period specified in the Order. Following the retrieval period, and except as may be required by law, we will delete any of your Customer Data that remains in the Cloud Services.

(a)            The Cloud Services may enable you to link to, transfer your Customer Data to, or otherwise access Third Party Products. CodeCargo does not control and is not responsible for such Third Party Products. You are solely responsible for complying with the terms of access and use of Third Party Products, and if CodeCargo accesses or uses any Third Party Products on your behalf to facilitate performance of the Cloud Services, you are solely responsible for ensuring that such access and use, including through passwords, credentials or tokens issued or otherwise made available to you, is authorized by the terms of access and use for such services. If you transfer or cause the transfer of your Customer Data from the Cloud Services to a Third Party Product or other location, that transfer constitutes a distribution by you and not by CodeCargo.

(b)            Any Third Party Product we make accessible is provided on an “as-is” and “as available” basis without any warranty of any kind. We disclaim all liabilities arising from or related to Third Party Products.  You are solely responsible for complying with all license terms that govern any Open-Source Component or other Third Party Product you install, access, or use, including providing any required attributions or source-code disclosures.

(c)            You acknowledge that: (i) the nature, type, quality and availability of Third Party Products may change at any time during the Service Period; and (ii) features of the Cloud Services that interoperate with Third Party Products depend on the continuing availability of such third parties’ respective application programming interfaces (APIs). We may need to update, change or modify the Cloud Services under the Agreement as a result of a change in, or unavailability of, such Third Party Product or APIs. Any change to Third Party Product or APIs, including their unavailability, during the Service Period does not affect your obligations under the Agreement or the applicable order, and you will not be entitled to any refund, credit or other compensation due to any such changes.

12.           Hybrid Software.  We may provide you with the ability to obtain certain Hybrid Software (as defined below) for use with the Cloud Services. Unless we specify that separate terms will apply to the Hybrid Software, any Hybrid Software is provided as part of the Cloud Services, and you have the non-exclusive, worldwide, limited right to use, and allow your Authorized Users to use, such Hybrid Software, subject to the terms of the Agreement and your Order, solely to facilitate your authorized use of the Cloud Services. Your right to use any Hybrid Software will terminate upon the earlier of our notice (by web posting or otherwise) or the end of the Cloud Services associated with the Hybrid Software. Your right to use any part of the Hybrid Software that is licensed under the separate terms is not restricted in any way by the Agreement.

(a)            Any notice required under the Agreement shall be provided to the other party in writing as specified in the General Terms.

(b)            We may give notices applicable to our Cloud Services customers by means of a general notice on the CodeCargo portal for the Cloud Services, and notices specific to you (i) by electronic mail to your e-mail address on record in our account information, or (ii) by written communication sent by first class mail or pre-paid post to your address on record in our account information.

(a)            We are an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties.

(b)            Our business partners and other third parties, including any third parties with which the Cloud Services have integrations or that are retained by you to provide consulting services, implementation services or applications that interact with the Services, are independent of CodeCargo and are not CodeCargo’s agents. Even if recommended by us, we are not liable for, bound by, or responsible for any problems with the Cloud Services or your Customer Data arising due to any acts or omissions of any business partner or third party, unless the business partner or third party is providing Cloud Services as our subcontractor or is otherwise engaged by CodeCargo in connection with performance of its obligations under the Agreement and, if so, then only to the same extent as we would be responsible for our resources under the Agreement.

Downloadable Software Terms

(a)            Upon CodeCargo’s acceptance of your Order, you have the non-exclusive, non-assignable, royalty free, limited right to use the Downloadable Software solely for your internal business operations and subject to the terms of the Agreement, including the definitions and rules set forth in the applicable Order, during the Service Period set forth in the applicable Order.

(b)            You may allow your Authorized Users to use the Downloadable Software for your internal business operations and you are responsible for their compliance with the Agreement.

(c)            You may make a sufficient number of copies of Downloadable Software and Documentation for your licensed use.

(a)            The Downloadable Software may contain or require the use of Third Party Products that are provided with the Downloadable Software. CodeCargo may provide certain notices to you in its Documentation. Third Party Products will be licensed to you either under the terms of the Agreement or, if specified in the Documentation, under separate terms.

(b)            You may not:

(i)             remove or modify any Downloadable Software markings or any notice of CodeCargo’s or its licensors’ proprietary rights;

(ii)            make the Downloadable Software available in any manner to any third party for use in the third party’s business operations;

(iii)           cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Downloadable Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by Downloadable Software);

(iv)           disclose results of any Downloadable Software benchmark tests without CodeCargo’s prior written consent.

(c)            The prohibition on the assignment or transfer of the Software or any interest in them under the General Terms shall apply to all Downloadable Software licensed under this Exhibit C except to the extent that such prohibition is rendered unenforceable under applicable law.

3.              Trial Programs.  You may order trial Downloadable Software, or CodeCargo may include additional Downloadable Software with your Order which you may use for trial, non-production purposes only. You may not use the trial Downloadable Software to provide or attend third party training on the content and/or functionality of the Downloadable Software. You have 30 days to evaluate these Downloadable Software. To use any of these Downloadable Software after the 30 day trial period, you must obtain a license for such Downloadable Software from CodeCargo or an authorized reseller. If you decide not to obtain a license for any Downloadable Software after the 30 day trial period, you will cease using and promptly delete any such Downloadable Software from your computer systems. Downloadable Software licensed for trial purposes are provided “as is” and CodeCargo does not provide technical support or offer any warranties for these Downloadable Software.

(a)            CodeCargo warrants that technical support services ordered and provided under this Exhibit C will be provided in a professional manner consistent with industry standards. You must notify CodeCargo of any technical support service warranty deficiencies within 90 days from performance of the deficient technical support service.

(b)            CODECARGO DOES NOT GUARANTEE THAT THE DOWNLOADABLE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT CODECARGO WILL CORRECT ALL PROGRAM ERRORS.

(c)            FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY AND CODECARGO’S ENTIRE LIABILITY SHALL BE: (A) THE CORRECTION OF DOWNLOADABLE SOFTWARE ERRORS THAT CAUSE BREACH OF THE WARRANTY; OR, IF CODECARGO CANNOT SUBSTANTIALLY CORRECT THE ERRORS OF THE APPLICABLE DOWNLOADABLE SOFTWARE LICENSE IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END YOUR DOWNLOADABLE SOFTWARE LICENSE AND RECOVER THE FEES YOU PAID TO CODECARGO FOR THE DOWNLOADABLE SOFTWARE LICENSE AND ANY UNUSED, PREPAID TECHNICAL SUPPORT FEES YOU HAVE PAID FOR THE DOWNLOADABLE SOFTWARE LICENSE; OR (B) THE REPERFORMANCE OF THE DEFICIENT DOWNLOADABLE SOFTWARE-RELATED SUPPORT; OR, IF CODECARGO CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT DOWNLOADABLE SOFTWARE-RELATED SUPPORT AND RECOVER THE FEES YOU PAID TO CODECARGO FOR THE DEFICIENT DOWNLOADABLE SOFTWARE-RELATED SUPPORT.

(d)            TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(a)            Upon 45 days written notice, CodeCargo may audit your use of the Downloadable Software to ensure your use of the Downloadable Software is in compliance with the terms of the applicable order and the Agreement. Any such audit shall not unreasonably interfere with your normal business operations.

(b)            You agree to cooperate with CodeCargo’s audit and provide reasonable assistance and access to information reasonably requested by CodeCargo. Such assistance shall include, but shall not be limited to, the running of CodeCargo data measurement tools on your servers and providing the resulting data to CodeCargo.

(c)            If the audit identifies non-compliance, you agree to remedy (which may include, without limitation, the payment of any fees for additional licenses for Downloadable Software) such non-compliance within 30 days of written notification of that non-compliance. If you do not remedy the non-compliance, CodeCargo can end (a) technical support, (b) Downloadable Software licenses ordered under this Exhibit C, and/or (c) the Agreement. You agree that CodeCargo shall not be responsible for any of your costs incurred in cooperating with the audit.

(a)            Delivery.  CodeCargo will make the Downloadable Software available to you for electronic download at the electronic delivery web site after executing an Order. Please be advised that not all Downloadable Software are available on all hardware/operating system combinations. For the most recent Downloadable Software availability please check with CodeCargo.

(b)            Installation.  You are responsible for installation of the Downloadable Software unless you purchase installation services from CodeCargo for that Downloadable Software.

(c)            Territory.  The Downloadable Software shall be used solely in the country/countries specified in the Order, if specified.

(i)             In entering into payment obligations under an Order, you agree and acknowledge that you have not relied on the future availability of any Downloadable Software or updates.

(ii)            Fees are invoiced as of the effective date of the applicable Order.

(iii)           Technical support fees are invoiced annually in advance. The period of performance for all technical support is effective upon the effective date of the applicable Order.

(iv)           In addition to the prices listed on the order, CodeCargo will invoice you for any applicable taxes and you will be responsible for such charges and taxes.

Professional Services Terms

(a)            Upon payment, you have the non-exclusive, non-assignable, royalty-free, worldwide, limited right to use the Professional Services and the Deliverables for your internal business operations.

(b)            You may allow your agents and contractors to use the Deliverables for your internal business operations, and you are responsible for their compliance in such use.

(c)            The Professional Services and Deliverables may be related to your right to use cloud or hosted/managed services or products owned or distributed by CodeCargo which you acquired under a separate Order. The agreement referenced in that Order shall govern your use of such services and products, and nothing in this Exhibit D is intended to grant a right to use such services or Products in excess of the terms of that order, such as the services period or number and type of environments specified in a cloud or hosted/managed services order.

(d)            You retain all ownership and intellectual property rights to your Confidential Information that you provide to CodeCargo under this Exhibit D.

(e)            Unless an Order expressly states otherwise, all Deliverables (including any custom developments, configurations, scripts, or reports) and all intellectual property rights therein will be and will remain the sole and exclusive property of CodeCargo. Subject to your payment of all applicable Fees, CodeCargo grants you a non-exclusive, worldwide, royalty-free license during the Service Period to use the Deliverables internally in connection with the Software and solely for Customer’s internal business operations. Nothing in this Exhibit D transfers to Customer any ownership interest in CodeCargo IP.

(a)            CodeCargo warrants that Professional Services will be provided in a professional manner consistent with industry standards. You must notify CodeCargo of any warranty deficiencies within 90 days from performance of the deficient Professional Services.

(b)            FOR ANY BREACH OF THE WARRANTY IN SECTION 2(A), YOUR EXCLUSIVE REMEDY AND CODECARGO’S ENTIRE LIABILITY SHALL BE THE RE-PERFORMANCE OF THE DEFICIENT PROFESSIONAL SERVICES, OR, IF CODECARGO CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT PROFESSIONAL SERVICES AND RECOVER THE FEES YOU PAID TO CODECARGO FOR THE DEFICIENT PROFESSIONAL SERVICES.

(c)            TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

3.              Remote Delivery.  Unless otherwise agreed by CodeCargo in writing, all Professional Services will be performed remotely. If Customer requests on-site work and CodeCargo agrees in writing, Customer will reimburse CodeCargo for all reasonable travel and living expenses incurred in connection with the Professional Services. Reimbursable expenses include transportation, lodging, meals, and incidentals, and will be invoiced at actual cost. Customer shall pay such expenses in accordance with Section 6 (Fees and Payment) of the General Terms.

Integrator & Service Provider Terms

1.              Applicability. These Integrator Terms apply where the Customer is, or engages systems integrator, reseller, value-added reseller, managed services provider, consultant, or other similar service provider (each an “Integrator”) in connection with the Software or Services.

2.              Integrator as Customer. If an Integrator signs an Order as the Customer, then:

(a)            the Integrator is the sole “Customer” under the Agreement;

(b)            the Integrator may use the Software and Services solely to provide services to its end customers expressly identified in the applicable Order; and

(c)            the Integrator remains fully responsible for all acts and omissions of such end customers, and shall ensure each end customer complies with all applicable restrictions of this Agreement;

(d)            CodeCargo has no contractual relationship with, or liability to, any such end customer.

3.              End Customer as Customer. If an end customer signs an Order as the Customer and engages an Integrator to administer or operate the Software or Services on its behalf, then:

(a)            the Integrator is deemed an “Authorized User” of the Customer;

(b)            the Customer remains fully responsible for all acts and omissions of the Integrator; and

(c)            the Integrator acquires no rights in the Software or Services beyond those granted to the Customer;

(d)            the Integrator’s access automatically terminates upon expiration or termination of the applicable Customer Order; and

(e)            the Customer shall indemnify CodeCargo against any Losses arising from the Integrator’s misuse or noncompliance.

4.              Resale Use. If CodeCargo expressly authorizes an Integrator in writing to resell or sublicense access to the Software or Services, such authorization:

(a)            must be set out in a separate resale agreement or Order;

(b)            does not transfer any ownership or intellectual property rights; and

(c)            requires the Integrator to ensure that each end customer enters into a binding written agreement containing terms no less protective of CodeCargo’s rights than this Agreement, including without limitation provisions relating to intellectual property, use restrictions, confidentiality, disclaimers, limitations of liability, and audit rights; and

(d)            obligates the Integrator to provide CodeCargo with copies of such agreements upon request.

Unless expressly stated otherwise in an Order, the Integrator is solely responsible for payment of all Fees due to CodeCargo, regardless of whether the Integrator collects payment from any end customer.

5.              Managed Services Use. If an Integrator operates or manages the Software or Services as part of its own managed or outsourced service offering:

(a)            the Integrator remains responsible for compliance with this Agreement;

(b)            the Integrator may grant its end customers access only as necessary to receive such managed services, provided that such access does not expand the scope of use, users, or environments permitted under the applicable Customer Order;

(c)            the Integrator shall ensure that its agreements with end customers contain disclaimers, limitations of liability, and restrictions at least as protective of CodeCargo as those in this Agreement; and

(d)            CodeCargo disclaims any liability arising from the Integrator’s relationship with its end customers.

6.              Responsibility. In all cases:

(a)            the Customer (whether an Integrator or end customer) is fully responsible for all payment obligations, compliance with this Agreement, and the acts and omissions of any Integrator it engages;

(b)            no end customer is a third-party beneficiary of this Agreement unless expressly stated in an Order, and end customers shall have no right to bring any claim against CodeCargo;

(c)            no Integrator may make any representations, warranties, or commitments regarding the Software or Services on behalf of CodeCargo, or use CodeCargo’s trademarks or logos, except with CodeCargo’s prior written consent; and

(d)            no Integrator obtains any rights or licenses in the Software or Services except as expressly permitted by this Exhibit E or another written agreement with CodeCargo.