End User License Agreement

This End User License Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and INFINITFORM INC. (“INFINITFORM,” “we,” or “us”). This Agreement governs your access to and use of the Services offered by INFINITFORM including all access to, and use of the website located at the URLs www.infinitform.com and https://infinitform.com, (“Website”) and all access to, and use of the INFINITFORM Services.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE INFINITFORM SERVICES (THE “EFFECTIVE DATE”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE INFINITFORM SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE INFINITFORM SERVICES. INFINITFORM reserves the right to update, modify or revise this Agreement. Any changes to this Agreement will be reflected in the text of the Agreement, and a change in the “Last Modified” date displayed above. By accessing and using the INFINITFORM Services, you accept any such updates, modifications or revisions to the Agreement, and confirm that you have read the Agreement, and are aware of and accept such updates, modifications or revisions.

1. Definitions.

(a) ”Aggregated Statistics“ has the meaning set forth in Section 2(e).

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

(c) ”INFINITFORM Services“ means the INFINITIFORM (i) SaaS based offerings (“SaaS Services”) and/or (ii) on-premise Licensed Software, as identified on Customer’s Order, including any updates or Documentation made available by INFINITIFORM with such offering, but excluding any third party products, services, applications or APIs.

(d) “INFINITFORM Technology“ means (i) the INFINITIFORM Services, Documentation, APIs, INFINITIFORM website(s), and any content published on the INFINITIFORM websites, (ii) INFINITIFORM’s underlying technology platform, (iii) any training materials, support materials, templates, tools, methodologies or know-how, (iv) INFINITIFORM Confidential Information and intellectual property, and (iv) any modifications or derivative works of the foregoing.

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

(e) ”Documentation“ means INFINITFORM’s user manuals, handbooks, guides, videos or other documents relating to the INFINITFORM Services provided by INFINITFORM to Customer either electronically or in hard copy form relating to the INFINITFORM Services available at https://infinitform.com.

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

(g) “Order“ means an online order made by Customer via INFINITFORM website or an order form issued by INIFITFORM to Customer.

(h) “Term“ has the meaning set forth in Section 12(a).

(i) ”Third-Party Products“ means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the INFINITFORM Services.

(j) “Update“ means, the generally available updates, hot fixes, patches and workarounds to the INFINITFORM Services provided by INFINITFORM to all subscribing customers but excludes separately priced new products or modules.

2. SaaS, Licensed Software and Use.

(a) SaaS. Subject to and conditioned on your payment of applicable Fees and compliance with all the terms and conditions of this Agreement, INFINITFORM hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the INFINITFORM Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. INFINITFORM shall provide you with the necessary passwords and access credentials to allow you to access the INFINITFORM Services.

(b) Licensed Software. Certain INFINITFORM Services may be licensed as end use licenses of software and applications that are downloaded and installed on the Customer’s premises and managed by Customer for use in its internal business operations for a specified term (collectively, the “Licensed Software”).

1. License Grant for Licensed Software. Subject to payment of all fees and compliance with the terms and conditions of this Agreement, INFINITFORM hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Licensed Software for the applicable term in the Order, in machine-readable object code form only and solely for use in its internal business operations to install and deploy the Licensed Software, in the number of systems or based on usage as specified in the Order, in accordance with this Agreement, the applicable Documentation. The Licensed Software is licensed, not sold, and Customer receives no title to or ownership of the Licensed Software. Furthermore, Customer receives no rights to the Licensed Software other than those specifically granted in this paragraph. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3(f).
2. Delivery. INFINITFORM shall deliver the Licensed Software to Customer by email or other electronic means. Delivery is deemed to have occurred when the Licensed Software has been made available to Customer for download .

iii. Permitted Copies and License Usage. Customer may make copies of the Licensed Software and Documentation only as reasonably necessary to use the Licensed Software as licensed for back-up and archival purposes; provided that, each copy of the Licensed Software and Documentation contains all titles, trademarks, and copyright and restricted rights notices as in the original, and Customer does not exceed the license quantities or other entitlements in the applicable Order.

1. Maintenance and Support for Licensed Software. Customer may elect to purchase maintenance and support services for the Licensed Software as further described here (“Support”) for the Licensed Software as indicated in the Order. INFINITFORM has no obligation to provide Support for any version of the Licensed Software other than the most current and previous minor release and shall have no liability for damages resulting from or in connection with Customer’s failure to install and/or use a current version.
2. End of Life. In its sole and exclusive discretion, INFINITFORM may discontinue Support for, discontinue sales of and/or retire a non-current version of the Licensed Software (“End of Life”). INFINITFORM shall publicly post (on its website or other designated location) a notice of End of Life, including, where relevant, the last date of general commercial availability of the affected version of the INFINITFORM Services and the timeline for discontinuing Support.
3. Emergency Update. Due to operation of law, regulation, or to comply with reasonable security standards (e.g., patching a known vulnerability) INFINITFORM may, on rare occasions, require Customer to update to the most current version of the INFINITFORM Services (“Emergency Update”). INFINITFORM will clearly communicate the need for such Emergency Update. INFINITFORM shall have no liability for damages resulting from or in connection with Customer’s failure to implement an Emergency Update.

(d) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the INFINITFORM Services, any software component of the INFINITFORM 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 INFINITFORM Services, any software component of the INFINITFORM Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the INFINITFORM 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 INFINITFORM Services, in whole or in part; (iv) remove any proprietary notices from the INFINITFORM Services or Documentation; or (v) use the INFINITFORM 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.

(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, INFINITFORM may monitor Customer’s use of the INFINITFORM Services and collect and compile data and information related to Customer’s use of the INFINITFORM Services to be used by INFINITFORM in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the INFINITFORM Services (“Aggregated Statistics”). As between INFINITFORM and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by INFINITFORM. You acknowledge that INFINITFORM may compile Aggregated Statistics based on Customer Data input into the INFINITFORM Services.

(f) Reservation of Rights. INFINITFORM reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights, access 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 INFINITFORM IP.

(g) Suspension or Restriction of Access. Notwithstanding anything to the contrary in this Agreement, INFINITFORM may temporarily suspend or restrict Customer’s and any other Authorized User’s access to any portion or all of the INFINITFORM Services if: (i) INFINITFORM reasonably determines that (A) there is a threat to or attack on any of the INFINITFORM IP; (B) Customer’s or any other Authorized User’s use of the INFINITFORM IP disrupts or poses a security risk to the INFINITFORM IP or to any other customer or vendor of INFINITFORM; (C) Customer or any other Authorized User is using the INFINITFORM 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; (E) INFINITFORM’s provision of the INFINITFORM Services to Customer or any other Authorized User is prohibited by applicable law; or (F) Customer or any other Authorized User has notified INFINITFORM, or INFINITFORM has otherwise learned about unauthorized access to your passwords or access credentials; (ii) any vendor of INFINITFORM has suspended or terminated INFINITFORM’s access to or use of any third-party services or products required to enable Customer to access the INFINITFORM Services; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). INFINITFORM 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. In addition, INFINITFORM reserves the right to monitor the Website and INFINITFORM services for violations of this Agreement, and to limit, restrict or revoke access to anyone in violation of this agreement, and/or remove or disable access to all files and data associated with such persons.

(h) Orders by Affiliates. Customer’s Affiliates may purchase INFINITFORM Services directly from INFINITFORM by entering into an Order which is governed by the terms of this Agreement. Such Order will establish a new and separate agreement between the Customer’s Affiliate and the INFINITFORM entity signing such Order.

(i) Purchases from Channel Partners. Customer may procure use of any INFINITFORM Services from a third-party authorized reseller or distributor of INFINITFORM (including third party marketplaces) (“Channel Partner”) pursuant to a separate agreement with the Channel Partner. Customer’s use of any INFINITFORM Services procured through a Channel Partner will be subject to the terms of this Agreement, and all fees payable (including all applicable Taxes) for such use will be payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner.

(j) Trial Services. INFINITFORM may provide Customer with access to and use of trial, proof of concept, or beta version of the INFINITFORM Services, or use of the INFINITFORM Services pre-release, or experimental basis as specified in an Order, including any related support services to the extent provided by INFINITFORM in its sole discretion (collectively, “Trial Services”).

(i) INFINITFORM grants Customer, during the Trial Services period, a non-exclusive, nontransferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement.

(ii) Notwithstanding anything to the contrary in this Agreement, (A) INFINITFORM provides the Trial Services “as is” and “as available” without any warranties or representations of any kind and to the extent permitted by law; (B) Customer assumes all risks and costs associated with its use of the Trial Services and in no event will INFINITFORM’s total aggregate liability with respect to the Trial Services exceed $1,000; and (C) any obligations on behalf of INFINITFORM to indemnify Customer under this Agreement are not applicable. Customer’s sole and exclusive remedy in case of any dissatisfaction or INFINITFORM’s breach of the Agreement with respect to the Trial Services is termination of the Trial Services.

3. Customer Responsibilities.

(a) Acceptable Use Policy. The INFINITFORM Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in INFINITFORM’s acceptable use policy (“AUP“) attached as Exhibit A (located at https://infinitform.com/wp-content/themes/infinitform/assets/use_policy.pdf), as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://infinitform.com from time to time, including the AUP.

(b) Account Use. You are responsible and liable for all uses of the INFINITFORM 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 INFINITFORM Services, and shall cause Authorized Users to comply with such provisions.

(c) Customer Data. You represent and warrant that you own or are authorized to use and upload your Customer Data, and that you have obtained any necessary licenses or rights to use such Customer Data, and that such usage is not prohibited by law, and does not infringe the rights of others. You hereby grant to INFINITFORM a non-exclusive, royalty-free, worldwide license to process, reproduce, transmit, distribute, display and use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for INFINITFORM to provide the INFINITFORM Services to Customer and incorporate the Customer Data as part of 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.

(d) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the INFINITFORM 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.

(e) Data Storage. INFINITFORM provides storage of certain data output from the INFINITFORM Services as a courtesy to ongoing Customers. If a Customer has not purchased tokens or accessed the INFINITFORM Services for a period of 12 months, INFINITFORM reserves the right to delete any data stored for the Customer.

(f) Third-Party Products. The INFINITFORM 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 INFINITFORM 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.

4. Service Levels and Support.

(a) Service Level. Subject to the terms and conditions of this Agreement, INFINITFORM shall use commercially reasonable efforts to make the INFINITFORM Services available to You. We may experience hardware, software or other problems, or need to perform maintenance or upgrades related to the INFINITFORM Service, resulting in temporary interruptions, delays or errors, or unavailability of the INFINITFORM Services. We reserve the right to change, revise, update, suspend, discontinue or otherwise modify the INFINITFORM Services at any time, for any reason, without notice to you. INFINITFORM shall have no liability whatsoever for any purported loss, damage, or inconvenience caused by your inability to access or use the INFINITFORM Services during any downtime or unavailability of the INFINITFORM Services.

(b) Support. Subject to the terms and conditions of this Agreement, INFINITFORM shall use commercially reasonable efforts to provide support to Customer to ensure successful output of a design file for the period of one year following the Effective Date under this Agreement and thereafter, solely if Customer purchases additional support services. Support may be reached at support@infinitform.com.

5. Fees and Payment.

Customer shall pay INFINITFORM for the INFINITFORM services either as a subscription (monthly, yearly or multi-year) or using tokens purchased from INFINITFORM as indicated on Customer’s Order. The cost of the tokens is subject to change, and may be adjusted by INFINITFORM, in its sole discretion, at any time upon thirty (30) days’ notice. Customer agrees to keep its payment information current. Customer further agrees to pay all fees for the INFINITFORM Services within thirty (30) days from the invoice date. 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 INFINITFORM’s other rights and remedies: (i) INFINITFORM may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse INFINITFORM for all reasonable costs incurred by INFINITFORM in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 60 days or more, INFINITFORM may suspend, in accordance with Section 2(g), Customer’s and all other Authorized Users’ access to any portion or all of the INFINITFORM 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 INFINITFORM’s income.

6. Confidential Information.

From time to time during the Term, INFINITFORM and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, in written, electronic, or other form or media, and that is marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). 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; (d) independently developed by the receiving party; or (e) not marked, designated, or otherwise identified as “confidential”. However, INFINITFORM will treat all Customer Data uploaded through the INFINITFORM Services interface, and all designs output by INFINITFORM Services, as being marked “Confidential,” and treat accordingly. 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. 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 make 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 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.

7. Privacy Policy.

INFINITFORM complies with its privacy policy attached as Exhibits B and C (located at https://infinitform.com/privacy-policy/) (“Privacy Policy”), in providing the INFINITFORM Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the INFINITFORM 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, including the collection of data, and if the data originates outside of the United States, the transfer of such data to the United States.

8. Intellectual Property Ownership; Feedback.

INFINITFORM owns all right, title, and interest, including all intellectual property rights, in and to the INFINITFORM Services and INFINITFORM IP. Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data.

If you or any of your Authorized Users, employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the INFINITFORM Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), all such 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.

9. Limited Warranty and Warranty Disclaimer.

(a) INFINITFORM warrants that it provides INFINITFORM Services using a commercially reasonable level of care and skill. INFINITFORM does not make any representations or guarantees regarding uptime or availability of the INFINITFORM Services unless specifically identified in the Service Levels. The remedies set forth in the Service Levels are Customer’s sole remedies and INFINITFORM’s sole liability under the limited warranty set forth in this Section 9(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND INFINITFORM STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

(b) Customer Warranty. Customer warrants that Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to INFINITFORM under this Agreement.

(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE INFINITFORM SERVICES ARE PROVIDED “AS IS” AND INFINITFORM SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. INFINITFORM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INFINITFORM MAKES NO WARRANTY OF ANY KIND THAT THE INFINITFORM SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

10. Indemnification.

(a) INFINITFORM Indemnification.

(i) Subject to the limits set forth in Section 11 below, INFINITFORM shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) finding that the INFINITFORM Services, or any use of the INFINITFORM Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies INFINITFORM in writing of the Third-Party Claim, cooperates with INFINITFORM, and allows INFINITFORM sole authority to control the defense and settlement of such Third-Party Claim.

(ii) If such a Third-Party Claim is made or INFINITFORM anticipates such a Third-Party Claim will be made, Customer agrees to permit INFINITFORM, at INFINITFORM’s sole discretion, to (A) modify or replace the INFINITFORM Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If INFINITFORM determines that neither alternative is reasonably available, INFINITFORM may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the INFINITFORM Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.

(iii) This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.

(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at INFINITFORM’s option, defend INFINITFORM 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 US intellectual property rights; or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the INFINITFORM Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against INFINITFORM unless INFINITFORM consents to such settlement, and further provided that INFINITFORM 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.

11. Limitations of Liability.

(a) LIABILITY IN NO EVENT WILL INFINITFORM 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; (e) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR UNAVAILABILITY OF THE INFINITFORM SERVICES; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER INFINITFORM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL INFINITFORM’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 INFINITFORM UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. For the avoidance of doubt, the exclusions and limitations in this Section 11 apply to INFINITFORM’s indemnification obligations under Section 10(a).

(b) No Reliance. All measurements, calculations, designs and other data provided by the INFINITFORM Services are estimates for informational purposes only, and are not intended to be relied on, or to replace actual testing and measurements of all parts or systems. INFINITFORM assumes no liability for reliance on any measurements, calculations, designs or other data provided by the INFINITFORM Services.

12. Term and Termination.

(a) Term. The term of this Agreement begins on the date INFINITFORM notifies Customer it can access the INFINITFORM Services and continues until terminated based on Your subscription end date in your Order. INFINITFORM Services that are specified to automatically renew will renew for successive monthly terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current services 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 remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or

(iii) 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 or Expiration. Upon termination of this Agreement, Customer shall immediately discontinue use of the INFINITFORM IP. No termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such termination or expiration, or entitle Customer to any refund.

(d) Survival. This Section 12(d), Sections 5, 8, 10, 11, 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.

13. Modifications.

You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement, and that modified terms become effective on posting. You will be notified of modifications through direct email communication from us and notifications or posts on https://infinitform.com/eula/. You are responsible for providing and maintaining a current email address in your account to facilitate such communications. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the INFINITFORM Services after the effective date of the modifications will be deemed acceptance of the modified terms. INFINITFORM will provide at least thirty (30) days’ advance notice of changes to any service level that INFINITFORM reasonably anticipates may result in a material reduction in quality or services.

14. Export Regulation.

The INFINITFORM Services utilize software and technology that may be subject to US export control laws, including the Export Administration Regulations and the International Traffic in Arms Regulations. You shall not, directly or indirectly, export, re-export, or release the INFINITFORM Services or the software or technology included in the INFINITFORM Services to, or make the INFINITFORM Services or the software or technology included in the INFINITFORM Services 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 INFINITFORM Services or the software or technology included in the INFINITFORM Services available outside the US.

15. US Government Rights.

Each of the software components that constitute the INFINITFORM Services and the Documentation is a “commercial item” 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 INFINITFORM Services 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.

16. Governing Law and Jurisdiction; Agreement to Arbitrate.

This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of the state of California without regard to conflicts of law provisions and without regard to the United Nations Convention on the International Sale of Goods.

If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Ventura, California, or another location mutually agreed upon by the parties. The arbitration shall be governed by the laws of the State of California. Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration.

17. 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 available at https://infinitform.com 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 INFINITFORM 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. 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.