Terms of Service and Software Agreement

THIS SERVICES AND SOFTWARE LICENSE AGREEMENT (this ?Agreement?) is made as of the date of the last signature, below (the ?Effective Date?), between SUREWAY PA, LLC, a Utah corporation with offices located in Layton, UT 84041 (?SUREWAY?), and CUSTOMER NAME AS LISTED ON SUBSCRIPTION FORM, an (individual), a (limited liability company) or (corporation), with a principle address at as noted on the subscription form (?Customer?).


  1. SUREWAY offers building management services to the general public, available in either partial or full coverage, for when primary building management is unavailable, such as after-hours coverage, holiday coverage, lapses in permanent personnel, and times of a like nature, through personal services provided by SUREWAY?s personnel (?Services?);
  2. As a part of the Services, SUREWAY allows Customer online access to SUREWAY?s proprietary software (?Software?) by Customer, it?s User(s), and/or it?s Designee(s), as elected by Customer on Subscription Form; and
  3. Customer desires to obtain, for itself and its Designees, a nonexclusive, limited right to utilize the Services and the Software, pursuant to the terms and conditions mores specifically set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants hereafter set forth, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, IT IS HEREBY AGREED as follows:

  1. Definitions.
    1. ?Customer Data? shall mean the data provided or inputted into Software by or on behalf of Customer, including personally identifiable information, for use with the SUREWAY Services, excluding any Confidential Information of SUREWAY.
    2. ?Confidential Information? shall mean: (a) technical, commercial, financial or other information, including, without limitation, Customer Data, data, know-how, software, business processes, financial information, pricing, billing procedures, formulae, processes, designs, photographs, audio or videotape, CD ROMs, drawings, mask works, designs, specifications, samples, programs, materials, records, business plans, consumer research, analysis or experience, of a confidential nature and whether disclosed directly or indirectly, orally, pictorially, in writing, by viewing, in machine readable form or other means including, without limitation, on electromagnetic or CD media or via telephone lines or radio or microwave and whether stored electronically or otherwise which relates to a party?s business, products, developments, services, trade secrets, know-how, personnel, supplies, vendors, suppliers, Service Provider(s), Designee(s), or customers already disclosed to or to be disclosed (i) by or on behalf of SUREWAY to Customer (whether or not designated as confidential or proprietary) or (ii) by or on behalf of Customer to SUREWAY (whether or not designated as confidential or proprietary); (b) notes, reports, analysis and reviews of and any other information derived from information referred to in paragraph (a) above; and (c) information designated as confidential, commercially sensitive or politically sensitive or which ought reasonably to be considered as such.
    3. ?Designee? shall mean those authorized by Customer to utilize the Services herein.
    4. ?Documentation? shall mean the SUREWAY documentation provided to Customer hereunder, including all forms, processes, questionnaires, and sign-up form.
    5. ?Fees? shall mean the applicable Services charges, indicated by Customer?s selection from available Service options, detailed on an Exhibit hereto, which once signed by both parties shall be automatically incorporated into this Agreement.
    6. ?Intellectual Proprietary Rights? shall mean all copyright, patent, trademark, trade secret, unpatented inventions, patent applications, designs, business processes, business procedures, domain name rights, mask works, and other intellectual property and proprietary rights, including derivatives thereof.
    7. ?Restricted Entity? shall mean any individual, partnership, limited liability company, corporation, joint venture, trust, association or other entity owned or controlled by, or acting as an agent for, any individual or entity with whom a U.S. citizen, national, or company organized under the laws of or operating in any state or territory of the U.S. is prohibited from engaging in any transactions by U.S. laws, including without limitation, an individual on the Specially Designated Nationals List published by the United States Department of the Treasury?s Office of Foreign Assets Control (?OFAC?), or any other individual or entity with whom or which transactions are prohibited by OFAC regulations.
    8. ?Service Provider? shall mean a third-party service provider of Customer?s or of its Designee(s) that provides services on behalf of and for Customer or its Designee(s), if any.
    9. ?Software? shall mean the object code of the application described in, and made available to Customer by SUREWAY hereunder, as well as all available updates, upgrades, new versions, modifications, subsequent releases of such application or different applications, platforms or editions.
    10. ?User? shall mean an employee, representative, consultant, contractor or agent who are authorized to use or access the Services, or have been supplied user identifications and passwords by Customer (or by SureWay PA, LLC at Customer?s request), if any.
  2. Obligations of Customer. Customer shall be solely responsible for each of the following:
    1. Customer shall, except as expressly permitted pursuant to this Agreement, (a) not allow any third party to transfer, merge, or electronically transmit to any computer or any destination over a network, via modem, or otherwise any of the Services, the content therein, or the documentation; (b) not allow any third party to access, rent, lease, copy, distribute, sublicense, sell, modify, decompile, disassemble, or otherwise reverse engineer in whole or in part, any of the Services or the Software, the content, or the documentation; and (c) not allow any third party to violate the terms of this Agreement;
    2. immediately bring to the attention of SUREWAY any known or suspected improper or wrongful use of SUREWAY?s Confidential Information or of any SUREWAY?s Intellectual Property Rights;
    3. not, and shall not allow any third party to, use, extract, or re-utilize the Services or Software (or any part thereof), the content, the documentation or any portion thereof or any information contained therein, for commercial purposes, including but not limited to, trading, building commercial databases, reselling or redistributing data from the Services or Software, for profit or to develop a competitive product;
    4. hold the terms of this Agreement in the strictest confidence as Confidential Information, releasing them only to its Designees, Users, employees and other authorized representatives (such as attorneys and accountants) who have a need to know such terms and who have signed confidentiality, nondisclosure or similar agreements with Customer, and Customer shall release or disclose any such terms to any other party without SUREWAY?s prior written consent;
    5. comply with all requests for information by SUREWAY by completely, accurately, and timely completion and return of all such requests, which may include but not be limited to:
      1. Customer?s vendor list;
      2. Customer company policies (where applicable to the Services);
      3. Customer property(ies) listing with full address(es);
      4. Customer?s list of Users, Service Providers, and Designees, as, and if, applicable;
      5. Customer?s special instructions, if any;
      6. Customer asset warranty information, including details therefor; and
      7. Any other Customer-specific information required by SUREWAY.
    6. prompt notice to SUREWAY of all changes to Customer billing information, and any other changes to Customer?s account information, including Customer contact information, including but not limited to: Customer?s legal name, credit card and billing addresses, email addresses, primary contact name and current phone number, authorized billing contact?s current contact information;
    7. safeguard the User ID?s, passwords and other security data and methods furnished to Customer in connection with the Software and prevent unauthorized access to or use of the Software;
    8. be responsible for all compliance with laws, as applicable, of Customer networks, equipment and system security required or appropriate in connection with the Software;
    9. have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data;
    10. all Customer, User, Service Provider activity within Customer?s account; and
    11. hold harmless and indemnify SUREWAY for all violations of this Section.
  3. Obligations of SUREWAY. SUREWAY shall be solely responsible for each of the following:
    1. Best Judgment. SUREWAY agrees to use its best judgment in assessing the urgency of all tenant requests, and to determine whether the tenant?s request can wait until the next normal business day, or not, based on the information and preferences provided Customer in Customer?s account; and
    2. SUREWAY will seek information from the Designee and the data provided by User to act on an informed basis, protect life and property, act in the best interests of the landlord, and not be wasteful. User agrees that in instances where best judgment is applied there is room for disagreement and will hold harmless SureWay PA, LLC where such disagreements occur
  4. Fees and Payments.
    1. Fees. All fees are payable in advance. Customer shall pay to SUREWAY the fees set forth as applicable and corresponding to Customer?s Service selection(s) as detailed on the subscription form, incorporated by reference into this Agreement or as otherwise agreed in a writing signed by the parties. Upon agreement by SUREWAY, Customer may select alternate levels of Service by completing and signing an alternate Exhibit, updating Customer?s selection(s). Any mutually agreeable selections shall be incorporated herein upon final signature and each shall bear a sequential alpha designation.Customer agrees to have a valid credit card on file with SUREWAY at all times or to prearrange for ACH payments to SUREWAY. By signing this Agreement, Customer authorizes SUREWAY to automatically charge SUREWAY?S fees to Customer, in the increments indicated under Customer?s Service selection(s) on Exhibit __, and any Expenses incurred by SUREWAY on Customer?s behalf. Customer acknowledges and agrees that SUREWAY has no control over individual, third-party vendor billing practices and authorizes SUREWAY to charge Customer?s credit card or checking account for Expenses up to forty-five (45) days after the event, regardless of whether or not this Agreement has been terminated. Customer agrees to effectuate any other writings needed by SUREWAY to satisfy this provision.
    2. NO REFUNDS. Customer acknowledges that there will be no refunds on any prepaid amounts under this Agreement.
    3. Expenses. Customer shall promptly reimburse SUREWAY for all expenses expended by SUREWAY on behalf of Customer.
    4. Taxes. Customer agrees to pay any and all taxes related to the Services.
    5. Payments. All Fees and/or Expenses under this Agreement shall be payable by Customer pursuant to and in accordance with the Payment Schedule set forth in the applicable subscription form. Any amounts not paid when presented are subject to interest at one and one-half percent (1.5%) per month and all costs, fees, and expenses incurred for collection of same.
  5. SurWay?s Software License and Restrictions.
    1. License. Subject to all the terms and conditions of this Agreement, SUREWAY hereby grants to Customer for only the Term Customer subscribes to the Services, and providing that Customer is not in arrears in any of its obligations under this Agreement, a non-exclusive, non-transferable, non-assignable, non-sublicensable, limited right for Customer, its Users, and its Designees (subject to Sections 5(d) and (e)) to access, display and use the Software solely for the internal business purposes of Customer and to manage information relating to Customer?s account hereunder.
    2. License Restrictions. Nothing in this Agreement shall be construed as a grant to Customer of any right to, and Customer shall not, and shall not permit any third party to: (i) reproduce any of the Software or any portion thereof; (ii) distribute, disclose or allow use of any of the Software, or any portion thereof, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third party; (iii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software in any manner; (iv) create derivative works from, modify or alter any of the Software in any manner whatsoever; (v) use the Software or any component thereof (excluding Customer Data) to construct a database of any kind or to improve the quality of any data sold or contributed by Customer to any third party; (vi) store the Software; (vii) distribute any database systems containing data obtained from the Software; (viii) create Internet ?links? to or from the Software or ?frame? or ?mirror? any of SUREWAY?s content which forms part of the Software (for the avoidance of doubt, creation of corporate intranet ?links? to the Software is not a violation of this Section 5(b)(viii)); (ix) use or access the Software in a manner, or act otherwise in any manner, that could damage, disable, overburden, or impair any SUREWAY servers or the networks connected to any SUREWAY server; (x) interfere with any third party?s use and enjoyment of the Software; or (xi) attempt to gain unauthorized access to the Software, accounts, computer systems, or networks connected to any SUREWAY server through hacking, password mining, or any other means.
    3. Users. The number of permitted Customer Users shall be as set forth in the Exhibit. Customer acknowledges and agrees that each User shall access and use the Software through a unique and reasonably secure username/user identification and password. Except for Customer?s and its Designee?s system administrators where reasonably necessary for administrative or security purposes, no User may use the username/user identification or password of any other User.
    4. Third Party Access. Subject to Section 5(e), Customer shall also have the right for Customer and Designees to permit its Service Providers to access, display and use the Software solely for the benefit of Customer and its Designees, and in accordance with the terms and conditions of this Agreement, provided that:
      1. except as otherwise expressly agreed by SUREWAY in writing, no such Service Provider is engaged in, or is an Designee or subsidiary of any individual or entity engaged in the business of providing building or premises management services;
      2. ii. Customer shall provide thirty (30) days? advance written notice of such Service Provider to SUREWAY and SUREWAY does not object to such Service Provider within fifteen (15) days of SUREWAY?s receipt of such notice from Customer; and
      3. iii. no Service Provider shall have any right to access, display or use the Software unless the Service Provider has agreed in writing in advance: (1) to be bound by at least the same restrictions with respect to the Software as Customer, and (2) to use, access and display the Software solely for the benefit of Customer or Customer?s Designees and as necessary to perform the Service Provider?s authorized duties for or on behalf of Customer or its Designees.
    5. Designees, Service Providers; Generally. Customer acknowledges and agrees that:
      1. any rights granted hereunder with respect to the Software to any of Customer?s Designees and Service Providers shall expire or terminate immediately upon the expiration or termination of the Agreement in accordance with its terms;
      2. all access and use of the Software by Customer?s Designees and Service Providers shall be subject to all of the terms and conditions of this Agreement; and
      3. Customer shall be fully responsible for (1) ensuring the compliance of all such Customer?s Designees and Service Providers with the terms and conditions of this Agreement; and (2) all violations of the terms or conditions of this Agreement by Customer?s Designees and Service Providers.
    6. Proprietary Rights. As between Customer and SUREWAY, Customer acknowledges that SUREWAY is the exclusive owner of all right, title and interest in and to all Software and all proprietary rights related thereto, regardless of any participation or collaboration by Customer in the design, development or implementation of any such Software. No title or ownership of proprietary rights in and to the Software, or any component thereof, is transferred to Customer or any third parties hereunder. SUREWAY represents and warrants that it owns all rights, title, and interest in and to the Software, or that in the case of any third party software that it has the right to grant a sublicense to use such third party software. Customer?s sole remedy for breach of the preceding sentence shall be limited to those set forth in Section 7(d).
    7. Notices of Infringement; Assistance. In the event Customer discovers or is notified of an actual or suspected infringement or misappropriation of the rights of SUREWAY or its licensors in or to the Software, or any component thereof, or any unauthorized disclosure of, access to, or use of the Software (each, an ?Infringement?), Customer shall: (i) immediately notify SUREWAY of such known or suspected Infringement; and (ii) terminate such Infringement if and to the extent within Customer?s control.
    8. Proprietary Notices. Customer shall not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained in any of the Software, and Customer shall reproduce all such notices and legends on all copies of the Software that are permitted to be made hereunder. Customer further agrees to reasonably cooperate with and assist SUREWAY (at SUREWAY?s sole expense) in protecting, enforcing and defending SUREWAY?s rights in and to the Software.
    9. Customer Warranty; Customer Data. The parties acknowledge and agree that during the term of this Agreement Customer, its Users, its Designees, any Customer Service Providers or other third parties may disclose certain Customer Data, including personally identifiable data regarding employees or other individuals, to SUREWAY for the benefit of Customer. Customer represents and warrants to SUREWAY that: (i) Customer, its Users, its Designees, its Service Providers and such other third parties are authorized to disclose the Customer Data to SUREWAY for use pursuant to this Agreement; (ii) such disclosure does not and shall not violate applicable law or, if applicable, Customer?s agreements with or privacy notices to individuals with respect to whom the Customer Data relates; and (iii) Customer shall not request SUREWAY to use, disclose or otherwise process Customer Data in any manner that would not be permissible under applicable law or, if applicable, Customer?s agreements with or privacy notices to individuals with respect to whom the Customer Data relates.
    10. Non-SUREWAY Events. Customer acknowledges and agrees that SUREWAY shall not be responsible or liable for any delay or failure in its performance of any duties or obligations pursuant to this Agreement, including, without limitation, under any Exhibit hereto, if such delays or failures result or arise from any Non-SUREWAY Events. ?Non-SUREWAY Events? shall mean, collectively: any (i) act or omission of Customer, its Users, its Designees or any Service Providers, including without limitation, any delays by Customer in its performance or cooperation with respect to the obligations set forth herein or the Exhibits; (ii) failures of Customer?s or third party equipment or software (other than the Software); or (iii) Force Majeure Event (as defined below).
  6. Disclaimers.
    • The Services are subject to inherent uncertainty, and actual results may differ materially from that projected by SUREWAY. They are provided solely for Customer?s benefit. SUREWAY shall have no liability to any third party in connection with these Services or to the Customer with regard to any services performed or provided by a third party. Customer agrees and acknowledges that SUREWAY shall not be responsible for: (i) any acts, omissions, delays, inaccuracies, errors or any other failure caused by Customer, its Users, its Designees or its Service Provider; (ii) any inaccuracies in or failures of the Software; (iii) any data that SUREWAY receives from Customer or third party sources and including the data?s accuracy or completeness, or Customer?s handling decisions; and (iv) the Software to the extent it is modified by anyone other than SUREWAY. To the extent the Software utilizes Internet systems to transmit data or communications, SUREWAY disclaims any liability for interception of any such data or communications, including of encrypted data not solely due to SUREWAY?s breach of its obligations hereunder. SUREWAY is also not responsible for the security, reliability or continued availability of the telephone lines and equipment outside of SUREWAY?s direct control used to access the Software.
    • Third-Party Websites. The content of third party websites, systems, products or advertisements that may be linked to the Software are not maintained or controlled by SUREWAY. SUREWAY does not have any responsibility for, nor: (i) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Software; (ii) guarantee the accuracy, completeness, usefulness or adequacy of any other websites, systems, products or advertisements that may be linked to or referenced in the Software; or (iii) make any endorsement, express or implied, of any other websites, systems, products or advertisements that may be linked to or referenced in the Software.
  7. Indemnification and Liability.
    1. Indemnity. To the fullest extent permitted by law, each of the parties shall defend, indemnify and hold harmless the other party, its designated entities, and their respective directors, officers, managers, employees, agents, and representatives (collectively, ?Indemnitees?) from and against any and all claims, suits, liabilities, judgments, losses, damages, fines, costs and expenses (including, but not limited to, reasonable attorneys? fees) of every kind and character, in each case arising out of any act, error or omission that results in its breach of this Agreement, regardless of whether the harm is to SUREWAY, Customer, Indemnitees, the employees, representatives or invitees of either, or any other person or entity. To the extent of the foregoing, each of the parties hereby expressly waives any insulation from liability or immunity from suit as to any claim by Indemnitees for indemnification in respect of injuries to the other party?s employees that may otherwise extend to it as a result of any payments made under any applicable workers? compensation statute or similar law or judicial decision, except to the extent such injuries arise from Customer?s or any third party?s acts or omissions. For the purposes of this Section, neither party shall be considered an agent or representative of the other party.
    2. In connection with any claim or action for which a party seeking indemnification (an ?Indemnified Party?) seeks indemnification from the other party (the ?Indemnifying Party?) in accordance with this Section, the Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of any such claim or action; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure; (ii) make no admission, settlement or other communication regarding any such claim without the prior written consent of Indemnifying Party, which shall not be unreasonably withheld or delayed; (iii) at the request of the Indemnifying Party, must allow the Indemnifying Party to conduct and/or settle all disputes or litigation; provided, however, that the Indemnifying Party may not settle the claim or action on a basis that admits liability on the Indemnified Party?s behalf unless the sole relief provided therefor that impacts the Indemnified Party is monetary damages that are paid in full by the Indemnifying Party; and; (d) provide the Indemnifying Party with all reasonable assistance, at the Indemnifying Party?s expense, in connection with the defense and settlement of the claim or action.
    3. No Consequential Damages. Neither party shall be liable for, and each party hereby waives and releases any claims against the other party for, any special, punitive, incidental or consequential damages, whether direct or indirect, compensatory or punitive, that result from the use of, or inability to use, the Services and/or the Software, including but not limited to, reliance by Customer or any of its Designees, Users, or Service Providers, including but not limited to lost revenues and lost profits, even if advised of the possibility of such damages and whether based on contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise.
    4. Limitation of Liability. Under no circumstances shall either party?s aggregate maximum liability under or in connection with this Agreement exceed the payments actually made to SUREWAY (or, with respect to Customer?s obligations, the payments due SUREWAY) hereunder during the one (1) month preceding the date on which any claim is made against a party. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Agreement shall be limit a party?s liability to the other party for any negligence, intentional or willful misconduct, violation of law, or infringement of intellectual property rights, or Customer?s liability for any breach of Section 5. THE ALLOCATION OF LIABILITY SET FORTH IN THIS AGREEMENT FAIRLY REFLECTS THE ECONOMIC CIRCUMSTANCES AND RISKS THAT THE PARTIES ARE WILLING TO UNDERTAKE IN VIEW OF THE AMOUNTS PAID OR PAYABLE TO SUREWAY BY CUSTOMER FOR THE LICENSE SPECIFIED HEREIN.
    5. Website. The SUREWAY website is an internet website on commercial computer systems and, accordingly, is not expected to be available at all times. Accordingly, SUREWAY shall not be liable for failure to provide access to the SUREWAY website, regardless of the cause therefore, including, without limitation, scheduled or unscheduled maintenance, computer system failure, software errors, failure of internet or communication service providers, or otherwise, regardless of whether such cause is the fault of SUREWAY. Without limiting the foregoing, and except as otherwise provided herein, none of the SUREWAY parties shall be liable to Customer, or any of its Designees, Users, or Service Providers for any damages (whether direct or indirect, compensatory or punitive) that result from deletions or delays in transmission of any information obtained through the use of the Software or SUREWAY website, interruptions in telecommunications connections to the Software or Services, viruses or other failures of performance, whether caused in whole or part by negligence, acts of god, telecommunications failure, theft or destruction of, or unauthorized access to the Software and/or the SUREWAY website.
  8. Term and Termination.
    1. Term. This Agreement shall commence upon the Effective Date and remain in effect until Terminated, as allowable below. The initial Term shall be as designated on the Exhibit, and thereafter shall renew in equal increments to the original, unless Customer provides advanced written notice to SUREWAY of an alteration. Customer acknowledges and agrees that: (1) each subsequent renewal period will be at SUREWAY?s then-current rates; and (2) the Software available to Customer and supported by SUREWAY during any renewal term may be a different version or release than as available and supported during the prior term.
    2. Termination. Any termination of this Agreement shall automatically terminate any and all other documents between the parties. This Agreement may be terminated:
      1. Convenience. Either party may terminate this Agreement for convenience upon at least thirty (30) days written notice to the other party. There will be no refunds of any prepaid amounts under this Agreement for termination for convenience.
      2. Cause.
      3. Immediate Termination. SUREWAY reserves the right to immediately terminate Customer?s Service and access to the Software in the following events:
        1. Non-payment of fees dues to SUREWAY;
        2. Customer breaches Section 5, above;
        3. Customer?s failure to respond to requests for information by SUREWAY, including emergency contact information or current credit card information.
        4. Customer is in breach of any Section of this Agreement;
        5. A receiver is appointed over any of the assets of Customer;
        6. Customer becomes subject to an administration order with respect to an assignment for the benefit of creditors;
        7. Customer goes into liquidation or bankruptcy, files a voluntary application or otherwise proceeds to liquidation or bankruptcy.
      4. Cure Notice. Either party may provide written notice of a breach of this Agreement to the other party for any other items not listed above. In the event any formal notice to cure is not met within 15 days, this Agreement shall terminate.
    3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason:
      1. Customer shall promptly cease all use of the SUREWAY Software;
      2. Customer shall within five (5) business days after termination of this Agreement, return to SUREWAY, or upon SUREWAY?s request, destroy, all copies of SUREWAY?s Confidential Information in Customer?s, its User?s, its Designee?s or Service Providers? possession or control; and
      3. Customer shall, within five (5) business days after expiration or earlier termination of this Agreement, certify in writing to SUREWAY that it has done all of the foregoing.
    4. Upon any expiration or termination of this Agreement, SUREWAY shall invoice Customer for all accrued Fees and expenses incurred by SUREWAY on Customer?s behalf in fulfillment of the Services, and Customer shall pay the invoiced amounts, including from previously issued invoices, within five (5) business days of Customer?s receipt of such invoice.
    5. SUREWAY reserves the right to permanently delete Customer data from SUREWAY?s records and to charge a reinstatement fee for each Customer termination.
  9. Survival. Except as otherwise set forth herein, in the event of termination of this Agreement for any reason, the provisions of Sections 2, 4 ? 7, 11, and 12, as well as all payment obligations, shall survive.
  10. Authority. Each party represents and warrants that it has full power and authority to enter into this Agreement and grant the rights granted herein.
  11. Confidentiality.
    1. Confidential Information. Each party acknowledges and agrees that during the term of this Agreement it may be furnished with or otherwise have access to Confidential Information of the other party. The party that has received Confidential Information (the ?Receiving Party?), in fulfilling its obligations under this Section 5, shall exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed Confidential Information to the Receiving Party (the ?Disclosing Party?) that it exercises with respect to its own Confidential Information, but in no event shall the Receiving Party exercise less than a reasonable standard of care. The Receiving Party shall only use, access and disclose Confidential Information as necessary to fulfill its obligations under this Agreement, including the Exhibit, or in exercise of its rights expressly granted hereunder. Receiving Party shall not directly or indirectly disclose, sell, copy, distribute, republish, create derivative works from, demonstrate or allow any third party to have access to any of Disclosing Party?s Confidential Information; provided, however, that: (i)(1) Receiving Party may disclose the Disclosing Party?s Confidential Information to its employees, subcontractors, agents and Designees (and employees, subcontractors and agents of its Designees) shall be given access to any Confidential Information received from the other party only on a ?need to know? basis for the purposes of this Agreement and shall have been made aware of the requirements of confidentiality for such Confidential Information and (ii) all use of the Disclosing Party?s Confidential Information shall be subject to all the restrictions set forth in this Agreement.
    2. Exclusions. The following information shall not be considered Confidential Information subject to this Section 5: (i) information that is publicly available or later becomes available other than through a breach of this Agreement; (ii) information that is known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or (iii) information that is subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality. If the Receiving Party is required by law to disclose any portion of the Disclosing Party?s Confidential Information, including, without limitation, pursuant to the terms of a subpoena, court order or otherwise by applicable law, Receiving Party shall give prior timely notice of such disclosure to Disclosing Party to permit Disclosing Party to seek a protective or similar order, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential Information as is necessary be disclosed in response to such subpoena, court order or other similar document. Such party will promptly cooperate with and assist the other party in connection with obtaining such protective order at the other party?s expense. In the event of disclosure by a Receiving Party of the Disclosing Party?s Confidential Information to a third party in violation of this Section 11, the Receiving Party shall use its best efforts in good faith to assist the Disclosing Party in recovering (and preventing such third party from using, disseminating, selling or otherwise disposing of) such Confidential Information.
    3. Survival. The obligations set forth in this Section shall survive in perpetuity regardless of termination or expiration of this Agreement for as long as such Confidential Information is retained by a party.
  12. Export. Customer acknowledges that the Software and all related technical information, documents, and materials are subject to export controls under the U.S. Export Administration Regulation. Customer will (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with the other party in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export, divert, transfer, or disclose, directly or indirectly, any Software or related technical information, document, or material or direct products thereof to any country so restricted by the U. S. Export Administration Regulations, as modified from time to time, or to any national or resident thereof, unless Customer has obtained the prior written authorization of SUREWAY and the U.S. Commerce Department and any relevant local governmental authority. Furthermore, Customer recognizes and agrees that concurrently with the execution of this Agreement it shall provide SUREWAY with a Letter of Assurance, substantially in the form provided by SUREWAY. Customer agrees SUREWAY shall have no liability for the failure to obtain a United States export license to export the Software to any other country. Should Customer choose to access the Software or Services from outside the United States, Customer is solely responsible for compliance with foreign and local laws. The Services and Software are not available through SUREWAY to any Restricted Entity. Customer represents and warrants that it is not a Restricted Entity and is not using the Software or Services on behalf of or for the benefit of a Restricted Entity.
  13. Notices. Any notice required or permitted to be delivered pursuant to this Agreement shall be in writing and shall be deemed delivered: (i) upon delivery if delivered in person; (ii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (iii) upon transmission if sent via facsimile, with a confirmation copy sent via overnight mail; or (iv) one (1) business day after deposit with a national overnight courier, in each case addressed to the addresses detailed for that party in the signature block, below.
  14. Non-solicitation. During the term of this Agreement and for a period of 180 days after it terminates, neither party shall solicit for employment or hire any employee of the other party or its subcontractors who have been involved in rendering or receiving services under this Agreement without first obtaining prior written consent of the other party; provided, however, that this restriction shall not prohibit either party from conducting general solicitations for hiring in newspapers and other media in connection with its normal hiring purposes.
  15. Non-Waiver. The failure of either party to insist, in any one or more instances, upon performance of any of the terms or conditions of this Agreement shall not be construed as a waiver or a relinquishment or any right granted hereunder of the future performance of any such term, covenant or condition, and the obligations of all parties with respect thereto shall continue in full force and effect.
  16. Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
  17. Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.
  18. Independent Contractors. It is understood and agreed that each party shall be acting as an independent contractor and not as an agent, employee or partner of the other party, and each party shall bear its own entire cost and expense of performing under this Agreement. Except as otherwise specifically provided in this Agreement, neither party shall have any authority to commit or bind the other party in any way. This Agreement and the transactions contemplated hereby shall not be deemed to create a joint venture, partnership or employment relationship between the parties.
  19. Change of Law. In the event either party in good faith determines that any of the transactions contemplated by this Agreement creates, or has created, a substantial risk of violating any law, statute, rule, regulation or other requirement, existing at the time of execution of this Agreement, or as adopted or amended subsequent thereto, and the parties agree that if the risk can be eliminated by restructuring the Agreement, this Agreement shall be renegotiated in good faith by the parties so as to restructure their relationship in a manner that would eliminate any such substantial risk. In the event the parties are unable to so successfully renegotiate this Agreement or determine the risk cannot be eliminated by renegotiation, then either party shall be entitled to terminate this Agreement upon the giving of ninety (90) days? written notice to the other.
  20. Injunctive Relief. Customer acknowledges that its breach of this Agreement may cause irreparable injury to SUREWAY that may not be adequately compensable in money damages, and for which SUREWAY shall have no adequate remedy at law. In the event of breach of Section 5 of this Agreement, SUREWAY shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief.
  21. Attorney Fees. If any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision hereof is brought against either party, the prevailing party shall be entitled to recover its reasonable attorneys? fees, costs and disbursements, in addition to any other relief to which the prevailing party may be entitled.
  22. Force Majeure. Neither party shall have liability for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, including without limitation, acts of God, fires, floods, earthquakes, wars, civil disturbances, terrorism, sabotage, accidents, unusually severe weather, labor disputes, governmental actions, power failures, viruses that are not preventable through generally available retail products, inability to obtain labor, material or equipment, catastrophic hardware failures, usage spikes, attacks on that party?s server, or any inability to transmit or receive information over the Internet, (each, a ?Force Majeure Event?) nor shall any such failure or delay give the other party the right to terminate this Agreement.
  23. Amendment. No changes or modifications to or waivers of any provision of this Agreement shall be effective unless evidenced in a written amendment that is signed by authorized representatives of both parties.
  24. No Assignment. This Agreement may not be assigned by either party. Any attempt to assign this Agreement shall be considered null and void.
  25. No Third Party Beneficiaries. No provision of this Agreement, the Services, or the Software provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
  26. Governing Law and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Utah, United States of America. Exclusive venue for all litigation with regard to this Agreement shall be in, Utah and both parties agree to submit to the jurisdiction of the state courts in the County of Davis, State of Utah for any such litigation. This Agreement shall only be interpreted in the English language.
  27. Contract Ambiguities. The parties to this Agreement acknowledge that they have had the opportunity to consult with legal counsel of their own choosing. As a result, the Rule of Construction, which provides that ambiguities in the contract shall be construed against the drafter, shall not apply to this Agreement and the parties waive any such defense to the terms of this Agreement.
  28. Counterparts. This Agreement may be executed in several counterparts, each of which may be deemed an original, but all of which together shall be deemed one instrument.
  29. Facsimile Signatures. Facsimile signatures shall be deemed to be the same as original signatures.
  30. Entire Agreement. The terms and conditions of this Agreement take precedence over any conflicting statement or provision in any schedule, form, exhibit, or any other document furnished by SUREWAY. This Agreement, including all Exhibits hereto, is the complete statement of the agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior oral and written agreements with respect to the subject matter hereof.