MC SOFTWARE TERMS OF SERVICE AGREEMENT

IMPORTANT-READ THIS TERMS OF SERVICE AGREEMENT, ALSO REFERRED TO AS THE MC SOFTWARE SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING TO USE THIS SERVICE. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDER FORM”, “ORDERING DOCUMENT”, “SALES CONTRACT” OR “SALES CONTRACT ORDER FORM”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.

A. Agreement Definitions

“You” and “your” refers to the individual or entity that has ordered software as a service from MC Software, LLC (“MC Software”) or an authorized distributor by executing the ordering document that accompanies and incorporates this MC Software software as a service agreement (collectively, the “agreement”). Software as a service consists of system administration, system management, and system monitoring activities that MC Software performs for MC Software programs, and includes the right to use the MC Software programs, support services for such MC Software programs, as well as any other services provided by MC Software, as defined in the ordering document (collectively, the “service” or the “services”). The term “program documentation” refers to the program user manual as well as any other materials provided by MC Software as part of the services. The term “MC Software programs” refers to the software products owned or distributed by MC Software to which MC Software grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term “users” shall mean those individuals authorized by you or on your behalf to use the services, as defined in the ordering document. The term “your data” refers to the data provided by you that resides in your services environment. The term “ordering document” refers to the contract ordering document signed by the parties that accompanies and incorporates this software as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.

B. Applicability of Agreement

This software as a service agreement is valid for the ordering document that this agreement accompanies.

C. Rights Granted

Upon MC Software’s acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.

You acknowledge that MC Software has no delivery obligation and will not ship copies of the MC Software programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the MC Software programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the MC Software programs specified in the ordering document and the services shall terminate.

D. Ownership and Restrictions

You retain all ownership and intellectual property rights in and to your data. MC Software or its licensors retain all ownership and intellectual property rights to the services and MC Software programs. MC Software retains all ownership and intellectual property rights to anything developed and delivered under the agreement.

Third party technology that may be appropriate or necessary for use with some MC Software programs is specified in the program documentation or ordering document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by MC Software and not under the agreement.
You may not:

• remove or modify any program markings or any notice of MC Software’s or its licensors’ proprietary rights;
• make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
• modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to MC Software;
• disclose results of any services or program benchmark tests without MC Software’s prior written consent; and
• license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, MC Software programs or materials available, to any third party other than, as expressly permitted under the terms of the agreement.

The rights granted to you under the agreement are also conditioned on the following:

• the rights of any user licensed to use the services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
• except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
• you agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.

E. No Warranties, No Liabilities, No Remedies

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MC SOFTWARE AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE OUR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MC SOFTWARE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL MC SOFTWARE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MC SOFTWARE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL MC SOFTWARE ITS AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MC SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

The Service is controlled and operated from facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

F. Trial Use of the Services

If specified in the ordering document, you may order certain services for trial, nonproduction purposes subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and MC Software does not offer any warranties for such services.

G. Indemnification

You agree to defend, indemnify, save and hold MC Software harmless from any and all demands, liabilities, losses, costs and claims; including reasonable attorneys fees asserted against MC, its agents, servants, officers, employees and assigns, that may arise from any service provided or performed or agreed to be performed by you, our agents, employees, or assigns.

You agree to defend, indemnify, save and hold MC Software harmless from any liabilities arising out of any financial injury or otherwise to any person caused by the improper use of MC Software’s services provided to you.

If a third party makes a claim against either you or MC Software (“Recipient” which may refer to you or MC Software depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or MC Software (“Provider” which may refer to you or MC Software depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will

defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

• notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
• gives the Provider sole control of the defense and any settlement negotiations; and
• gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects MC Software’s ability to meet its obligations under the relevant order, then MC Software may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). MC Software will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by MC Software. MC Software will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. MC Software will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.

H. Client Support Services

MC Software provides complete Client Support services that include on-site training, e-mail and phone support in answering operating questions, custom programming, specialized software and hardware support, and general trouble-shooting activities. Such services are typically billed on an hourly or project basis, as determined by current company policies and rates in effect at the time of such service.

I. End of Agreement; Termination of Agreement With and Without Cause

Services provided under this agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. The term of the services and any renewal years are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the MC Software programs listed in the ordering document, shall end.

MC Software may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay MC Software as required under the agreement, or (ii) if you violate any provision within this service agreement. Any suspension by MC Software of the services under this paragraph shall not excuse you from your obligation to make all payment(s) under the agreement.

Termination for non-payment shall occur when payments are not made within thirty (30) days of the due date. All of your rights and obligations shall cease upon termination of this Agreement. You agree to maintain and keep current all contact information for your account(s) under these Services. If MC terminates your account for a violation of this agreement, MC shall not be required to nullify any payment obligations or release your data until the remaining unpaid balance of this Agreement is paid in full.

If this Agreement is terminated, MC Software may permit, at is sole discretion and for additional cost, you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.

MC may terminate this Agreement at anytime should you introduce any software viruses or MC system damaging/effecting items.

You may terminate this Agreement at anytime, for any reason, by written notice to MC and upon payment of the full fee based upon the remaining term of the Agreement. MC shall not release any data without payment of the full remaining fee balance.

You agree and acknowledge that MC Software has no obligation to retain your data and that your data may be irretrievably deleted following the termination of this Agreement/ordering document.

Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others that by their nature are intended to survive.

J. Fees and Taxes

You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that MC Software must pay based on the services you ordered, except for taxes based on MC Software’s income. You will reimburse MC Software for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. If not paid in advance, all amounts invoiced hereunder are due and payable upon receipt of the invoice.

You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering document; however, the preceding does not relieve MC Software of its obligation to deliver services that you have ordered per the terms of the agreement.

K. Nondisclosure

By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.

A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. MC Software will protect the confidentiality of your data residing in the services environment in accordance with the MC Software security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.

L. Entire Agreement

You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any MC Software ordering document, shall supersede the terms in any purchase order or other non-MC Software document and no terms included in any such purchase order or other non-MC Software document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the MC Software Store by authorized representatives of you and of MC Software.

M. Export

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under thes agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

N. Other

1. MC Software is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
2. You shall obtain at your sole expense any rights and consents from third parties necessary for MC Software and its subcontractors to perform the services under the agreement.
3. The agreement is governed by the substantive and procedural laws of California and you and MC Software agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco, San Mateo, or Santa Clara counties in California in any dispute arising out of or relating to the agreement.
4. If you have a dispute with MC Software or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to [email protected], MC Software, LLC, Attention: General Counsel, Legal Department. MC Software may give notice applicable to MC Software’s software as a service customer base by means of a general notice on the MC Software portal for the services, and notices specific to you by electronic mail to your e-mail address on record in MC Software’s account information or by written communication sent by first class mail or pre-paid post to your address on record in MC Software’s account information.
5. You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity.
6. Except for actions for nonpayment or breach of MC Software’s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
7. MC Software may audit your use of the services. You agree to cooperate with MC Software’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, MC Software can end your services and/or the agreement. You agree that MC Software shall not be responsible for any of your costs incurred in cooperating with the audit.
8. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. You understand that MC Software’s business partners, including any third party firms retained by you to provide computer consulting services, are independent of MC Software and are not MC Software’s agents. MC Software is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an MC Software subcontractor on an engagement ordered under this software as a service agreement.

O. Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of

us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.

P. Your Data

In performing the services, MC Software will comply with the MC SoftwarePrivacyPolicy, which is available at https://mcsoftware.com/privacy-policy/ and incorporated herein by reference. The MC SoftwarePrivacyPolicyis subject to change at MC Software’s discretion; however, MC Software policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the services have been paid. The services policies referenced in your ordering document specifies our respective responsibilities for maintaining the security of your data in connection with the services.

MC Software reserves the right to provide the services from locations, and/or through use of subcontractors, worldwide. MC Software subscribes to the United States/European Union Safe Harbor Principles, and as a result, appears on the U.S.Department of Commerce Safe Harbor list (available at http://www.export.gov/safeharbor) as of the effective date of this software as a service agreement. MC Software’s Safe Harbor certification specifically includes MC Software’s performance of hosting services for customer provided personal information.

You agree to provide any notices and obtain any consents related to your use of the services and MC Software’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.

Q. Restrictions on Use of the Services

You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to MC Software under the agreement, MC Software reserves the right to remove or disable access to any material that violates the foregoing restrictions. MC Software shall have no liability to you in the event that MC Software takes such action. You agree to defend and indemnify MC Software against any claim arising out of a violation of your obligations under this section.

R. Services Tools

MC Software may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your MC Software service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing MC Software’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.

If MC Software provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that MC Software specifies for such tools; however, if MC Software does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement. Any such tools are provided by MC Software on an “as is” basis and MC Software does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of MC Software’s notice, the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.

S. Statistical Information

MC Software may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. MC Software retains all intellectual property rights in such information.

T. Third Party Web Sites, Content, Products and Services

The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. MC Software is not responsible for any third party Web sites or third party

content provided on or through the services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.

U. Customer Reference

You agree (i) that MC Software may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by MC Software on MC Software.com for promotional purposes.

V. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of laws or principles. You agree, in the event of any suit is brought in connection with this Agreement, that you must submit to the jurisdiction of the State of Delaware, County of New Castle, as the appropriate forum.

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY DISPUTE.

W. OTHER

MC Software may periodically update these Terms of Service at anytime at its sole discretion. You may see the most updated version of this policy by visiting our web-site. Any questions about this Agreement should be addressed via e-mail to: [email protected].