SPIRION SOFTWARE LICENSE AGREEMENT

This SOFTWARE LICENSE AGREEMENT (the “Agreement”) between SPIRION, LLC, a Delaware Limited Liability Company with its principal place of business at 200 Central Ave., Suite 1900, St. Petersburg, FL 33701 (“Spirion”), and  the Customer identified in the License Quote (“Licensee”) (each a “Party” and sometimes jointly referred to herein as the “Parties”) sets forth the terms and conditions under which Spirion will license the Licensed Products to Licensee.

WHEREAS, Spirion desires to license the Software identified on the License Quote to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.The Software and Data. The Parties agree and understand that the Spirion Software is a tool to discover, segregate, and encrypt certain data on Licensee Devices per Licensee’s instructions. The Software is to be installed and maintained on-premises on Licensee’s computer systems.  The Licensee decides which types of Licensee Data it wishes to discover on its devices, for example, credit card numbers.  The Software does not transmit Licensee Data to Spirion.
2. Definitions.

Authorized Technical Contacts” means the two representatives of the Licensee who are authorized to receive communication from Spirion regarding the Licensed Products or this Agreement.

Device” means an electronic device owned or leased by Licensee or an Employee which is capable of executing the Software program.

Defect” means the failure of the Software to substantially conform to the Documentation, when such failure can be reproduced and documented by Spirion.

Documentation” means product user guides (at URL: www.spirion.com/support/user-guides ) relating to the Software that Spirion provides or makes available to Licensee which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.

Employee” or means an employee or authorized contractor of the Licensee whose job functions require the individual to access or store data on one or more Devices.

Intellectual Property Rights” means all rights in and to any of the following, however constituted:  trade secrets, patents, copyrights, service marks, trademarks, domain names, trade dress, know-how, moral rights, code (executable, object and other) and related and similar rights under the laws of any applicable governmental authority or international treaty, including but not limited to all applications and registrations relating to the foregoing.

License Types:

Lifetime License” means a license to use the use the current offering of the Software and Documentation in perpetuity.  The Lifetime License does not include Maintenance or Support, but Licensee may purchase Maintenance and Support on an annual basis.

Annual License” means a license to use the Software and Documentation for a Term of one year.  It includes any Maintenance Releases released during the Term and Support.

Licensee Data” means any data stored on Devices, not including Usage Data.

License Quote” means the Spirion quoting document presented to Licensee that lists the Term, fees, licensed Software, and any Maintenance and Support.

Licensed Product(s)” means the licensed Software and related Documentation.

Maintenance Release or Version” means any update, upgrade, release, version, or other adaptation or modification of the Software, including any updated Documentation, that Spirion may make available to Licensee from time to time during the Term, which may contain, among other things, bug fixes, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.

New Product Offering” means any new offering of the Software that Spirion may from time to time introduce and market generally as a distinct licensed product (as may be indicated by a new product name or Spirion’s designation of a new SKU ), and which Spirion may make available to Licensee at an additional cost under a separate written agreement.

“Permitted Use” means the use of the Licensed Products by Licensee on its own computer systems for the purpose of discovering sensitive data contained in Licensee Data.

Software” means the executable, object code version of the computer software program(s) identified on a License Quote, and all Maintenance Releases to it made available by Spirion to Licensee during the Term.

 “Support” is defined in Section 7.

Supported Platforms” means the operating systems that Spirion provides Support for.

Term” means the time period of the License as stated on the License Quote or other Addendum.

Usage Data” means records of how Licensee is using the Software.

Website” means the website at www.spirion.com and any successor URL.

3.License Quotes. Each License Quote or purchase order executed by the Parties shall be incorporated into this Agreement and considered an addendum hereto (“Addenda”).  In the event of any conflict between the terms of this Agreement and the terms of an Addendum, the terms of the Agreement shall govern, unless the Addendum expressly identifies the provision of this Agreement it supersedes.

4. License.

4.1 License Grant.  Subject to and conditioned on Licensee’s payment of fees and compliance with all other terms and conditions of this Agreement, Spirion hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide  license to use the Licensed Products solely for the Permitted Use during the Term.
4.2  Scope of License. Licensee may install, use, and run one copy of the Software across all of the Devices owned or leased by the number of Employees stated in the License Quote.  This copy will remain the exclusive property of Spirion, and its use shall be subject to this Agreement.  Licensee must include all copyright and other Intellectual Property notices contained in the original.  No other copying is permitted.

4.3 Third Party Licenses.  The Licensed Products may include software products licensed from third parties.  Such third parties have no obligations or liability to Licensee under this Agreement.  Specific third-party license terms applying to portions of the Licensed Products are set forth at the following URL: www.spirion.com/Company/ThirdPartyLicensing and are hereby incorporated by reference.

4.4 Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Licensee acknowledges and agrees that: (a) Spirion may use these and other lawful measures to verify Licensee’s compliance with the terms of this Agreement and enforce Spirion’s rights, including all Intellectual Property Rights, in and to the Software; and (b) Spirion may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee’s computers, systems and software, that Spirion may gather periodically to improve the performance of the Software or develop Maintenance Releases.

4.5 License Restrictions.  Except as this Agreement expressly permits, Licensee shall not, and shall not permit any other person or entity to:

(a)  copy the Software, in whole or in part;

(b)  modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;

(c)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party;

(d)  reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;

(e)  bypass or breach any security device or protection used for or contained in the Software or Documentation;

(f)  remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation;

(g)  use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person or entity, or that violates any applicable Law;

(h)  use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Spirion’s detriment or commercial disadvantage; or

(i)  use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage.

4.6 Licensee may use the Software to search the data only on the Devices of the number of Employees authorized by this Agreement.  If an Employee leaves the employment of or engagement with the Licensee, Licensee may reallocate the use of the Software to include another Employee.

5. Delivery. Spirion shall deliver license keys or activation codes to Licensee within ten (10) days of the Effective Date.  Licensee shall be responsible for the security of all access credentials.

6. Maintenance. During the Term, to the extent Licensee has purchased Maintenance, Spirion will provide Licensee with all Maintenance Releases and Versions (including updated Documentation) that Spirion may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases and Versions provided by Spirion to Licensee are deemed Software. Licensee will install all Maintenance Releases and Versions as soon as practicable after receipt. Licensee does not have any right hereunder to receive any New Product Offering of the Software that Spirion may, in its sole discretion, release from time to time. Licensee may license any New Product Offering at Spirion’s then-current list price and subject to a separate license agreement, provided that Licensee is in compliance with the terms and conditions of this Agreement.

7. Support. During the Term, to the extent Licensee has purchased Support, Spirion shall offer Support on the then current general release of the Software, as well as the most recent Maintenance Releases to the prior general release. “Support” means:

(a) Email or Website service ticket support service from 9:00 AM – 5:00 PM (Eastern Time), Monday through Friday except public holidays.  Directions for submitting support requests can be found at http://support.spirion.com. Tickets may be opened only by Authorized Technical Contacts.

(b) Spirion’s efforts to correct Defects in the then-current release of the Software.

(c) Support shall not include on-site services.

With sixty (60) days’ advance written notice, Spirion may change its Support policy from time to time provided that Support features and services are not reduced.

8. Payment. Licensee agrees to pay Spirion all applicable Fees set forth in the License Quote, on the schedule (if any) stated in the License Quote. Payment is due in U.S. dollars, thirty (30) days after invoice date.

8.1 Fees do not include any taxes.  Licensee is responsible for all taxes imposed by any governmental authority, other than any taxes on Spirion’s income.

8.2 Licensee shall pay Spirion a late charge of the lesser of 3% per month or the highest amount permitted by applicable law on all payments past due. Licensee shall reimburse Spirion for all costs incurred by Spirion in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees.  If such failure continues for thirty (30)  days following written notice thereof, Spirion may: (i) disable Licensee’s use of the Software (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 10.1.

9. License Compliance Measures; Audit Rights and Remedies.

9.1 The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software.  Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection.  No more than once annually and with no fewer than ten (10) business days’ advance written notice, Spirion may audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement.  Spirion shall conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with Licensee’s business operations.  If the audit determines that Licensee’s use of the Software exceeded the usage permitted by this Agreement by more than 5%, Licensee shall pay to Spirion all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to the License Quote.  If the audit determines that such excess use equals or exceeds 10% percent of Licensee’s permitted level of use, Licensee shall also pay to Spirion all reasonable costs incurred by Spirion in conducting the audit.  Licensee shall make all payments required under this Section 9.1 within thirty (30) days of the date of written notification of the audit results.

9.2 Spirion reserves the right to remotely disable the Software if it reasonably and in good faith suspects gross abuse or fraud by Licensee, and has attempted to notify Licensee, and the Licensee has not cured the abuse or fraud within thirty (30) days.

10. Term, Renewal, and Termination.

10.1 Term. This Agreement shall begin on the Effective Date shall remain in effect for the term stated in each Addenda until it expires or is terminated in accordance with this Agreement (“Term”).  Either Party shall have the right to terminate this Agreement as to all Addenda or only the applicable Addendum in the event the other Party commits a material breach of any provision of this Agreement (“Breach”) which remains uncured after thirty (30) days’ written notice, or in accordance with any other provisions of this Agreement expressly giving rise to a right of termination.  Spirion may terminate this Agreement, effective immediately, if the Licensee (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

10.2 Renewal. Annual Licenses, Maintenance, and Support, will automatically renew unless earlier terminated pursuant to any of the Agreement’s  express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the initial Term, the “Term”). The  fees for renewal of Annual Licenses, Maintenance, and Support may be increased by five (5) percent year-over-year at the time of renewal.

10.3 Effect of Termination and Expiration. Upon termination of this Agreement resulting from an uncured Breach by Spirion, Spirion agrees to refund to Licensee any unused Fees (as applicable), pro-rated on a 12-month term. Upon expiration or termination of this Agreement for any reason, Licensee shall remove and destroy all copies of the Software installed on all Devices, and remove and destroy all copies of the Documentation in its possession.  Licensee shall direct all Employees with a copy of the Software installed on a personally owned Device, if any, to remove and destroy such Software and remove and destroy all copies of the Documentation in such Employees’ possession.

10.4 Survival.  The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections  10, 12, 14, 15, and 16.

11. Public Announcements. Only upon prior written consent from Licensee may Spirion identify Licensee by name and/or logo to the public as a customer of Spirion. Spirion may also issue one or more press releases announcing Licensee’s execution of this Agreement and the implementation of the Software. Spirion may also publicly issue a case study describing Licensee’s use of the Software.

12. Intellectual Property Rights. Licensee acknowledges and agrees that the Licensed Products and all related Intellectual Property Rights are the exclusive property of Spirion and its licensors.  The Software and Documentation are licensed, not sold, to Licensee by Spirion and Licensee does not have under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights.  Spirion and its licensors are the sole and exclusive owners of all right, title, and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, and any derivative works or improvements created by.  Licensee hereby unconditionally and irrevocably assigns to Spirion or Spirion’s designee, its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them, authorized or not).

13. Warranties and Disclaimers.

13.1 Warranties.  Each Party warrants that it has full legal right to enter into this Agreement.  Spirion warrants that the Software, if installed and operated in accordance with the Documentation, will perform substantially in conformance with the Documentation, for a period of six (6) months provided that Licensee has installed all Maintenance Releases previously made available to Licensee, and further provided that Licensee is in compliance with all terms and conditions of this Agreement.

13.2 Disclaimers.  Licensee agrees that the Software uses search algorithms to find data but is not guaranteed to find all instances of data searched for.  LICENSEE ACKNOWLEDGES THAT USING THE SOFTWARE, EVEN AS DIRECTED, DOES NOT GUARANTEE COMPLIANCE WITH ANY PARTICULAR LAW, REGULATION, STANDARD, OR BEST PRACTICE, EACH OF WHICH SPIRION EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT OF THE LAW.  SPIRION SHALL NOT BE LIABLE UNDER ANY THEORY FOR LICENSEE’S VIOLATION OR BREACH OF ANY LAW, REGULATION OR STANDARD, EVEN IF SUCH VIOLATION OR BREACH INVOLVED LICENSEE’S USE OF THE SOFTWARE.  EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 13.1, ALL LICENSED SOFTWARE AND DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY SPIRION ARE PROVIDED “AS IS.” SPIRION DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

EXCEPT AS SET FORTH ELSEWHERE IN THIS AGREEMENT, LICENSEE ASSUMES RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE.  WITHOUT LIMITING THE FOREGOING PROVISIONS, SPIRION MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

14. Infringement Claims; Indemnification.

14.1 Indemnification by Spirion.  Spirion shall indemnify, defend and hold Licensee harmless from and against any claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of any claim, suit or proceeding brought by a third party against Licensee, which alleges that the Licensed Products, as delivered and used in accordance with the terms and conditions of this Agreement and the Documentation, infringe any third party Intellectual Property Rights.   Licensee agrees to notify Spirion of any such claim promptly in writing, tender the defense to Spirion and to allow Spirion to manage, control, and/or settle the proceedings, provided that Spirion will not settle such claim or related action in a manner that imposes any obligation on Licensee without the prior written consent of Licensee (which consent will not be unreasonably withheld). Licensee agrees to cooperate fully with Spirion during such proceedings. Spirion shall have no obligation or liability to Licensee with respect to any claim of infringement which is based upon: (i) the combination or modification of the Software by Licensee with any other product, application, process, program or device not provided by Spirion (excluding combinations described in the Documentation), if such infringement would not have arisen but for such combination or modification, or (ii) the failure of Licensee to promptly install a Maintenance Release provided by Spirion where such infringement could have been avoided by the use of such Maintenance Release, or (iii) use of Software by Licensee in a manner other than for which it was designed or in a manner other than as specified in the Documentation.

14.2 Indemnification by Licensee. Licensee shall indemnify, hold harmless and defend Spirion, its affiliates, and their respective officers, directors, employees, managers, advisors, agents, and attorneys, harmless from and against any claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) arising out of any claim, suit or proceeding brought by a third party regarding (a) the use of the Licensed Products in a manner not expressly permitted under this Agreement;  or (b) Licensee’s breach of this Agreement.  Spirion agrees to notify Licensee of any such claim promptly in writing, tender the defense to Licensee and to allow Licensee to manage, control, and/or settle the proceeding, provided that Licensee will not settle such claim or related action in a manner that imposes any obligation on Spirion without the prior written consent of Spirion (which consent will not be unreasonably withheld). Spirion agrees to cooperate fully with Licensee during such proceedings.

14.3 Mitigation.   In the event of an infringement claim or should Spirion have reasonable concerns about infringement or potential infringement, Spirion may, at Spirion’s option, replace, in whole or in part, the Licensed Products of concern (the “Affected Licensed Products”) with a substantially compatible and functionally equivalent computer program or programs, modify the Affected Licensed Products to avoid the infringement and/or obtain such license(s) as it deems appropriate.  Licensee agrees to promptly install any such replacement version(s) and discontinue use of the superseded version(s).  Licensee further agrees to promptly direct all Employees with Software installed on a personally owned Device to promptly install any such replacement version(s) and discontinue the use of the superseded version(s) on such personally owned Devices.  If Spirion reasonably determines that other alternatives are not available at a cost that Spirion deems acceptable, Spirion may, at its option, terminate the license to the Licensed Product on thirty (30) days’ notice, in which case, Spirion refund any Licensee, Maintenance, or Support Fees pro-rated on a 12-month term.

14.4 Sole Remedy. THIS SECTION 14 SETS FORTH LICENSEE’S SOLE REMEDIES AND SPIRION’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

15. Limitation of Liability. EXCEPT FOR THE INDEMNITY OBLIGATIONS IN SECTION 14, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ONE PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES.

IN NO EVENT WILL SPIRION BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES ACTUALLY PAID BY LICENSEE, EVEN IF SPIRION SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY.

16. Miscellaneous.

16.1 Notice. Any notice or other communication to be given pursuant to this Agreement shall be in writing and shall be effective either when delivered personally to the other Party, or one business day following sending by overnight courier service, addressed to such Party.

16.2 Headings and Rules of Construction. Section headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Whenever used herein, the singular includes the plural and the plural includes the singular. The use of any gender, tense or conjugation includes all genders, tenses and conjugations.

16.3 United States Government. The Licensed Products are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.72 et. seq. and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

16.4 Export Controls. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws 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 available outside the US.

16.5 Suggestions and Feedback. Either Party may from time to time provide suggestions, comments or other feedback to the other Party with respect to Licensed Products or any other subject (“Feedback”).  Both Parties agree that all Feedback is and shall be entirely voluntary and shall not, absent separate agreement, create any confidentiality obligation for the receiving Party.  Feedback may or may not be clearly designated as such and, except as otherwise provided herein, each Party shall be free to disclose, use, or commercially exploit such Feedback as it sees fit, entirely without obligation of any kind to the other Party. Licensee obtains no Intellectual Property Rights, title, or interest in the Licensed Products, even if such intellectual property incorporates Feedback from Licensee.

16.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida 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 Florida.  Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.  The parties agree that the United Nations Convention on Contracts on Contracts for the International Sale of Goods will not apply to this Agreement or to the parties to this Agreement.  The parties also agree that the Uniform Computer Information Transactions Act (UCITA), whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, will not apply to this Agreement.

16.7 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RIGHTS TO A TRIAL BY JURY.

16.8 Waiver. No waiver by either Party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof.

16.9 Assignment. Licensee agrees not to assign, or otherwise transfer this Agreement or such Party’s rights under it, or delegate its obligations, without Spirion’s prior written consent, and any attempt to do so is void. Licensee may assign this Agreement without prior written consent only to an entity which acquires all or substantially all of its assets. Any other attempt to assign is void, without written consent from Spirion.

16.10 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

16.11 Force Majeure. Neither Party shall be responsible for any delay or failure of performance under this Agreement caused by events or circumstances beyond such Party’s control, which may not be overcome by due diligence.

16.12 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties.

16.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Authorized signatures transmitted and received via electronic means will be treated as original signatures for all purposes of this Agreement.

16.14 Remedies.  The rights and remedies of Spirion provided in this Agreement shall be in addition to (and not in substitution for) any rights and remedies to which Spirion shall be entitled at law or equity.

16.15 Amendments or Modifications. This Agreement may not be modified except in an amendment executed by duly authorized representatives of the Parties. The terms and conditions of this Agreement (including Addenda and attached exhibits via URLs) shall supersede all conflicting pre-printed terms and conditions contained in any purchase order or other business form submitted by either Party to the other.

16.16 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Licensee and Spirion are the only parties to this Agreement.

16.17 Entire Agreement. This Agreement, including Addenda and exhibits referenced by the URLs,  sets forth the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, negotiations, discussions, arrangements and communications, whether oral or written, with respect to the subject matter hereof.

***