This End User License Agreement (“Agreement” or “EULA”) governs your use of the Teramind software and any related documentation, services, or updates provided by Teramind, Inc. (“Teramind,” “we,” “us,” or “our”) for on-premises deployment. By accessing, downloading, installing, or using the software, you (“Customer,” “you,” or “your”) acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. If you do not agree to the terms, you may not access or use the software.

If you are accepting this Agreement on behalf of a company, organization, or other legal entity, you represent that you have the authority to bind such entity to these terms, and “Customer” will refer to that entity. If you do not have such authority or do not agree to these terms, do not use the software.

PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT CAREFULLY

1. DEFINITIONS.

1. “Documentation” means the documentation, manuals, and support materials accompanying the Software provided by Teramind as Teramind may update from time-to-time.
2. “Equipment” means the hardware identified on the End-User purchase Order in conjunction with which the Software is to be used (e.g., Windows Server).
3. “Order” means a document, signed by End-User and (i) Teramind or (ii) Reseller, that specifies the Equipment, Software, and any Professional Services which Teramind, or the Reseller on Teramind’s behalf, will provide to End-User and the related pricing (the “Fees”) and any other information relevant to such transaction.
4. “Professional Services” has the meaning set forth in the Professional Services Addendum, attached hereto and incorporated herein by this reference (such addendum, the “PSA”).
5. “Reseller” means the Teramind’s authorized reseller of the Software and any incidental related services.
6. “Software” means the software programs licensed by Teramind and identified on the Order and any Software Releases.
7. “Software Release” means any new version or upgrade of Software that is made generally available by Teramind to its other customers for the Software at no separate or additional charge during the period in which the Software is covered by the applicable warranty, as more fully set forth herein. Software Releases shall not include separate modules.
8. “Trademarks” means all names, trademarks, marks, logos, designs, trade dress, and other brand designations used by Teramind or its Software Suppliers in connection with the Software.

1. ORDERING, PRICING, AND PAYMENT.
   1. Payment Terms. Fees are as mutually agreed and set forth in the applicable Order. End-User will pay the Fees as specified in the applicable Order or otherwise within thirty (30) days of the date of an invoice from Teramind or the applicable Reseller. All payments shall be made in U.S. dollars in accordance with instructions provided by Teramind from time to time.  All Fees are non-refundable.
   2. Late Fees; Suspension of Services; and Collection Costs. If End-User fails to pay any Fees when due to Teramind, Teramind may charge interest of the lesser of one and one-half percent (1.5%) per month or the maximum permissible rate per month (“Interest Rate”) on any outstanding balance.  End-User agrees to pay all costs and expenses (including reasonable attorneys’ fees) incurred by Teramind in connection with collecting any amounts due and payable by End-User under this EULA. If End-User fails to satisfy any payment within thirty (30) days of the due date, then, in addition and cumulative to any and all other remedies available to Teramind under this EULA or at law or in equity, Teramind may, without any prior notice, suspend and/or terminate the Professional Services, revoke the rights granted herein, and stop providing any support to End-User and any of its users. Teramind will not be liable to End-User or to any third party in the event Teramind exercises its rights under this Section. For the sake of clarity, any action taken by Teramind pursuant to this Section shall not relieve End-User or Reseller of any obligations under this EULA or any other agreement.
   3. Taxes. The Fees do not include taxes. End-User will be responsible for and reimburse and hold Teramind harmless against the payment of all taxes associated with this EULA (other than taxes based on Teramind’s gross receipts or net income). If Teramind is required to collect any tax for which End-User is responsible, End-User will pay such tax directly to Teramind.
   4. Delivery. Software will be provided by Teramind or a Reseller through electronic means to End-User for installation (the initial delivery, excluding any Software Releases, the “Delivery”).
   5. Reports; Right to Audit. End-User shall submit to Teramind all reports reasonably requested by Teramind necessary for Teramind to determine amounts due and owing to Teramind and to confirm End-User’s compliance with the terms of this EULA. End-User shall maintain complete and accurate written records describing:  (a) any and all transactions, including the transactions specified in an Order; (b) all amounts due and payable hereunder; and (c) any other information which may be reasonably required by Teramind to determine whether End-User is complying with the terms of this EULA. To ensure compliance with the terms of this EULA, Teramind and/or its representative, shall have the right to conduct an inspection and audit of the facilities of End-User and all the relevant books and records of End-User, and to obtain true and correct photocopies thereof, during regular business hours at End-User’s offices and in such a manner as not to interfere unreasonably with End-User’s normal business activities.  If any such audit should disclose any underpayment of Fees, End-User shall promptly pay Teramind such underpaid amount, together with interest thereon at the Interest Rate per month or partial month during which each such amount was owed and unpaid.  If the amount of such underpayment exceeds five percent (5%) of amounts otherwise paid, then End-User shall immediately reimburse Teramind for Teramind’s reasonable expenses associated with such audit.
2. SOFTWARE.

1. 1. Licenses. Subject to End-User’s compliance with the terms of this EULA and payment of all Fees, Teramind grants End-User during the term of this EULA a limited non-exclusive, non-sublicensable, and non-transferable, license to install and use the object code version of the Software on the specified Equipment for End-User’s internal business purposes, up to the limits as permitted and measured by the scope of the applicable license for which End-User has paid the license Fee(s) as set forth in the applicable Order for the term of this EULA (“License”).  End-User must notify Teramind and pay the applicable additional license Fee(s) before exceeding the permitted limits. In the event that End-User exceeds any usage limitations set forth in the applicable Order, in addition and cumulative to any and all other remedies available to Teramind, End-User agrees to pay Teramind’s then prevailing rates and prices for such excess usage. End-User shall not, without Teramind’s prior written consent, copy, provide, disclose or otherwise make available Software in any form to anyone other than End-User’s employees, consultants or independent contractors (“Personnel”), who shall use Software in a manner consistent with this EULA. End-User shall be fully responsible towards Teramind for the compliance of End-User’s Personnel with this EULA.
   2. Restrictions. End-User may only use the Software to process and manage its own data.  End-User will not, in whole or in part, or allow any of its Personnel to: (i) copy the Software or distribute copies of the Software to any third party, whether or not for a fee; (ii) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble, reverse compile, make derivative works based on the Software, or otherwise reduce the Software to human readable form except as otherwise permitted by law; (iii) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Software to third parties; or (iv) use the Software to act as a service bureau or application service provider, or to permit access to the Software of any kind to any third party, whether or not for a fee.

1. PROPRIETARY RIGHTS. The logo, product names, Software, copies of Software, manuals, documentation, support materials and Trademarks are patented, copyrighted, trademarked, or otherwise owned by Teramind as trade secrets and/or proprietary information. Software is licensed to End-User and not sold. No title to, or ownership of, the Software or any intellectual property incorporated into or embedded in the Software or any Documentation is transferred to End-User. Teramind retains exclusive ownership of the Software and its copies, the intellectual property in any of the Software and its copies, and of the printed materials. All rights not expressly granted to the End-User hereunder are reserved by Teramind and its affiliates. End-User will not use any information, in tangible or intangible form, which has been or may be disclosed to it or its Personnel by Teramind under or in connection with this EULA for the purpose of creating or duplicating or attempting to create or duplicate the Software. End-User agrees to secure and protect the Software in a commercially reasonable manner. End-User retains all right, title, and interest to its data that End-User uploads to the Software.
2. TRADEMARKS AND PROPRIETARY NOTICES. End-User may not remove or alter any Trademarks. End-User shall reproduce and include copyright and other proprietary notices on and in any copies, including but not limited to partial, physical or electronic copies, of the Software and any Documentation. End-User agrees that any use of Trademarks by End-User will inure to the sole benefit of Teramind. End-User undertakes not to incorporate any Trademarks into End- Users’ trademarks, service marks, company names, internet addresses, domain names, or any other similar designations without Teramind’s prior written consent.
3. CONFIDENTIALITY. Each party agrees to maintain in confidence all proprietary and confidential information, including business, financial, contractual information, and any software, supplied by the other party and its affiliates or accessed by the party in the course of performance of this EULA (“Confidential Information”).  For avoidance of doubt, any and all information of or related to the Software is Confidential Information of Teramind. Each party agrees that, for purposes of this EULA, that Confidential Information shall not include information which: (a) was in public domain prior to the receipt of same by the other party, or has subsequently become part of the public domain by publication or otherwise except by the other party’s wrongful act; (b) was in the other party’s lawful possession or known to either party prior to its receipt hereunder; (c) was independently developed without reference to the other party’s Confidential Information; or (d) was received by the other party from a third party which to the best knowledge of the other party had no obligation of confidentiality with respect thereto. Moreover, the receiving party may disclose the other party’s Confidential Information pursuant to a court, law enforcement, or governmental order, provided that such disclosure is limited to the greatest extent possible under the circumstances and, to the extent permitted, the receiving party has given the disclosing party written notice of such disclosure. The receiving party will maintain the disclosing party’s Confidential Information with the same standard of care that it uses with its own like information, but in no event with less than reasonable care, to prevent the unauthorized dissemination and/or use of such Confidential Information. The receiving party agrees that it will not use or disclose other party’s Confidential Information to any third party and will disclose the other party’s Confidential Information only to those employees or independent contractors who have a need to access such information and who have signed confidentiality agreements covering the Confidential Information having terms at least as restrictive as the terms of this Section or auditors or legal counsel who are subject to an obligation of confidentiality. Each of the parties shall not, and will cause its employees, directors, officers, agents and contractors (“Representatives”) to not, copy or use any Confidential Information of the other party except as expressly provided in this EULA. All Confidential Information disclosed hereunder shall remain confidential for the term of this EULA and a period of three (3) years thereafter. If the receiving party or its Representatives has disclosed, or is threatening to disclose, any Confidential Information in breach of this EULA, the disclosing party shall be entitled to seek an injunction to prevent such disclosure in addition to any other remedies it has available under this EULA or available at law or in equity. 
4. WARRANTIES. Teramind warrants that (a) the Software will perform substantially in accordance with the Documentation for ninety (90) from the date of Delivery, and (b) Teramind will use commercially available anti-virus software to scan the Software at the time of Delivery for any virus, Trojan horse, worm, malware or other software designed to permit unauthorized access to, or to erase or otherwise harm, the End-User’s software, hardware, or data and that if so detected, will be removed. In the event of Teramind’s breach of this Section, Teramind’s sole and exclusive liability, and End-User’s sole and exclusive remedy, will be for Teramind to provide a revised version of the Software through a Software Release.
5. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, TERAMIND PROVIDES THE SOFTWARE, DOCUMENTATION, AND ANY RELATED SERVICES ON AN “AS-IS” BASIS AND MAKES NO OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, AND TERAMIND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. TERAMIND SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE SHALL OPERATE UNINTERRUPTED OR ERROR FREE. END-USER ASSUMES TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE END-USER’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM SOFTWARE.  END-USER HEREBY WAIVES ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT OUTPUT, OR INCORRECT DATA FILES RESULTING FROM A PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, OR FROM THE USE OF THIRD PARTY SOFTWARE. TERAMIND DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END-USER’S REQUIREMENTS. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO END-USER, THE ABOVE EXCLUSIONS WILL APPLY TO END USER TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
6. INDEMNIFICATION.
   1. Indemnification by Teramind. Subject to the limitations set out in this Section 9 and Section 10, Teramind shall indemnify and hold harmless End-User, its officers, employees, affiliates, subsidiaries, assigns and successors in interest from, defend End-User against, pay any final judgments awarded against End-User, resulting from any claims, liabilities, losses, suits, and damages asserted by a third party arising from or in connection with a claim that the Software infringes a United States patent or copyright (“Claim”), and pay any finally awarded costs and damages awarded against End-User by a court of competent jurisdiction or any settlement agreed to by Teramind in writing. Should any Software become, or in Teramind’s opinion be likely to become, the subject of such a Claim, Teramind shall, at its option and expense, (i) procure for End-User the right to make continued use thereof, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) request return of all copies of the Software and Documentation and, upon receipt thereof, reimburse End-User for fees paid for the remaining term of the license. THIS SECTION STATES END-USER’S SOLE AND EXCLUSIVE REMEDY AND TERAMIND’S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
   2. Process. In order to receive the indemnity set forth in Section 9(A), End-User must (i) notify Teramind promptly in writing of such Claim, (ii) grant Teramind sole control over the defense and settlement thereof, and (iii) fully cooperate in response to a reasonable Teramind request for assistance in the defense of such Claim.
   3. Exceptions. Teramind shall have no liability or obligation to indemnify, defend, hold harmless End-User if the Claim arises from or is in connection with: (i) modification of the Software by anyone other than Teramind; (ii) Teramind’s compliance with End User’s unique specification or instructions; (iii) Teramind’s use of trademarks, data, or other materials supplied by End-User; (iv) use of any Software in connection or in combination with equipment, devices, or software not provided by Teramind (but only to the extent that such Software alone would not have infringed); (v) the use of any Software other than as permitted under this EULA or in a manner for which it was not intended; or (vi) use of other than the most current Software Release (the “Exclusions”). 
   4. Indemnification by End-User. End-User will indemnify and hold harmless Teramind, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Teramind against, pay any final judgments awarded against Teramind, and pay all of Teramind’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party arising from or in connection with: (i) End-User’s use or misuse of the Software (including without limitation, in violation of applicable laws, rules, or regulations or this EULA); (ii) the Exclusions; (iii) any breach or alleged breach by End-User of this EULA; and/or (iv) End-User’s or its Personnel’s use of the Software.
7. 10.LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES IN CONNECTION WITH ANY SOFTWARE OR RELATED SERVICES PROVIDED BY TERAMIND HEREUNDER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY OUTPUT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. EXCEPT FOR (I) DAMAGES ARISING FROM A BREACH OF SECTION 3, 4, OR 5, IN NO EVENT WILL TERAMIND’S TOTAL LIABILITY FOR ANY DAMAGES IN ANY ACTION (BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING FROM THE DELIVERY, INSTALLATION, USE AND PERFORMANCE OF ANY OF THE SOFTWARE OR ANY RELATED SERVICES EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO TERAMIND PURSUANT TO THE ORDER UNDER WHICH LIABILITY AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS EULA IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. TERM AND TERMINATION:

1. 1. Term.  This EULA shall commence on the Effective Date by both parties and shall continue until the last to expire term of an Order (the “Term”).
   2. Renewal. Unless otherwise stated in an Order, the term of each Order shall be for one (1) year, and such Order shall automatically renew for additional periods equal to one (1) year or the preceding term, subject to the terms of this EULA and the applicable Order.  Either party may provide the other written notice of non-renewal, at least thirty (30) days’ prior the end of an Order term, to prevent the automatic renewal of any Order.
   3. Right to Terminate. If a party fails to comply with the terms and conditions of this EULA, the non-breaching party may send a written notice of default, specifying such breach in reasonable detail, to the allegedly breaching party whereupon the allegedly breaching party will have thirty (30) days beginning upon receipt of such written notice to cure the alleged breach(es). If the allegedly breaching party fails to cure the alleged breach(es) during such thirty (30) day period, this EULA will automatically terminate unless otherwise mutually agreed by the parties in writing. If at any time End-User fails to pay to Teramind the amounts required under this EULA as and when such sums are due, Teramind may, in addition and cumulative to any and all other remedies available to Teramind under this EULA or at law or in equity, terminate this EULA or the applicable Order by written notice to End-User, unless End-User pays all amounts due, including all accrued interest, within thirty (30) days of such notice. Teramind will not be liable to End-User or to any third party in the event Teramind exercises its rights under this Section.
   4. Effect of Termination. Upon the written request of Teramind following termination of this EULA for any reason whatsoever, End-User shall destroy all copies of the Software, and, upon the written request of Teramind, certify in writing that they have been destroyed. Upon expiration or termination of this EULA for any reason hereof, the License granted herein shall expire. Sections 1, 2, 3(B), 4-6, and 8-13, will survive expiration or termination of this EULA, however arising.

1. 12.INFORMATION REQUIREMENTS. End-User must inform any individuals that they will be monitored by the Software and the End-User’s applicable data practices.
2. 13.MISCELLANEOUS.

1. 1. 1. Export Law. End-User shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this EULA without first complying with all export control laws and regulations that may be imposed by the U.S. government and any country or organization of nations within whose jurisdiction End-User operates or does business, such as the Export Administration Regulations maintained by the United States Department of Commerce, trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the United States Department of State. All Software, Software Releases, and Professional Services are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in applicable laws and regulations and/or the terms of this EULA, to the extent such terms do not conflict with such applicable laws and regulations.
   2. Assignment. This EULA will bind and inure to the benefit of each party’s successors and permitted assigns, provided that End-User may not assign this EULA or any right or delegate any performance without Teramind’s prior written consent. It is hereby agreed that Teramind may perform its obligations under this EULA by itself or through third parties authorized by Teramind for this purpose, providing such third parties comply with the terms of this EULA and Teramind remains liable for the acts and omissions of such third party as if it performed such act or omission directly.
   3. Informal Dispute Resolution. The parties will use reasonable efforts to resolve any dispute arising of this EULA through a meeting of designated business representatives from each party. If the parties fail to resolve the dispute within thirty (30) days, either party may seek any available legal relief, provided that Teramind is not obligated to follow this informal dispute resolution process to the extent Teramind reasonably believes that End-User has, in any manner, violated, attempted to violate, or threatened to violate Teramind’s intellectual property rights.
   4. Governing Law and Binding Dispute Resolution. This EULA will be governed by, and construed in accordance with, the laws of the state of Delaware without giving effect to its conflict of law principles. The parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act, the United Nations Convention on the Sale of Goods and the Convention on the Use of Electronic Communications in International Contracts. The parties agree that any matters that need to be brought in court must be brought in a state or federal court located in Delaware and the parties each hereby waive any objection to venue and/or such courts’ lack of personal jurisdiction. After exhausting the informal dispute resolution process set forth in Section 13(C), any dispute or claim arising out of or relating to this EULA, the Software, and/or Professional Services, except as set forth in this Section 13(D) and any claims that the End-User has, in any manner, violated, attempted to violate, or threatened to violate Teramind’s intellectual property rights, which Teramind may, in its sole discretion, choose to bring in court or arbitration, shall be submitted to binding arbitration administered by the American Arbitration Association (“AAA”) under the then-existing Commercial Arbitration Rules (“Rules”). Reference to the AAA Rules does not constitute incorporation of the absolute right for the arbitrator(s) to decide any questions of arbitrability or jurisdiction. Either party may ask a court of competent jurisdiction to determine whether any particular dispute is arbitrable, without a presumption in favor of arbitration. The arbitration must be stayed during the pendency of any court action involving arbitrability or the arbitrator’s jurisdiction. The locale of the arbitration shall be Delaware. The arbitrator(s) may not award punitive damages or any relief that is not measured by the prevailing party’s actual damages and must apply the Limitation of Liability provision herein as written. The arbitrator(s) may not modify the terms of this EULA. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrator(s) have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction. Either party may seek to confirm and enforce any final award entered in arbitration, in any court of competent jurisdiction. Notwithstanding the agreement to such procedures, either party may seek equitable relief to enforce its rights to arbitrate in any court of competent jurisdiction.
   5. Notices. All notices required or permitted under this EULA will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Teramind is 525 Randall Ave Ste 100 PMB 491 Cheyenne, WY 82001; and the notice address for End-User is the address set forth in the applicable Order for End-User or, if no such physical address is indicated, then the email address included in an Order for End-User.  Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. End-User acknowledges and agrees that any notice provided to End-User’s email address will be deemed delivered as of the date such notice is sent and End-User further acknowledges and agrees that such notice will meet any formal requirements of notice. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
   6. Waiver. The failure of either party at any time to require performance by the other party of any provision of this EULA shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either party of a breach of any provision of this EULA shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this EULA. 
   7. Severability. If any part of this EULA is held unenforceable, the validity of the remaining provisions shall not be affected.
   8. Independent Contractors. Teramind is acting as an independent contractor in its capacity under this EULA.  Nothing contained in this EULA or in the relationship of the End-User and Teramind shall be deemed to constitute a partnership, joint venture, or any other relationship between the End-User and Teramind.
   9. Miscellaneous. No provision of this EULA shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this EULA are for reference purposes only and shall not be deemed to have any substantive effect. 
   10. Complete Agreement. Each party acknowledges that it has read and understand this EULA and agrees to be bound by its terms. The parties further agree that this EULA, including the applicable Orders and any attachments incorporated herein, is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties or between End-User and any third party relating to this EULA and the subject matter herein. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and herein. This EULA may not be modified or altered except by written instrument duly executed by both parties. This EULA may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this EULA.  Counterpart signature pages to this EULA transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.
   11. Purchase Orders. Notwithstanding any language to the contrary therein, no terms or conditions stated in any of End-User’s or any other third party’s purchase orders, onboarding processes, web portals, or any other customer order documentation (excluding valid Orders) will be incorporated into or form any part of this EULA, and all such terms or conditions will be null and void.
   12. Force Majeure. Notwithstanding any other provision of this EULA, no party to this EULA shall be deemed in default or breach of this EULA or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.  Without limiting the foregoing, the following shall constitute events of “Force Majeure”: acts of State or governmental action, riots, war, terrorism, strikes, lockouts, prolonged shortage of energy supplies, epidemics, pandemics, any global, national, or local public health emergency or disease outbreak (including, without limitation, COVID-19 (a/k/a the 2019 Novel Coronavirus) or any similar disease(s)), fire, flood, hurricane, typhoon, earthquake, lightning, explosion, any other acts of God or any third party, the failure of telecommunications equipment or other hardware, any third party software or any third party services.
   13. Feedback.  Teramind welcomes feedback, comments and suggestions for improvements to the Software (“Feedback”). End-User can submit Feedback by emailing Teramind at feedback@teramind.co. Teramind hereby grants to Teramind a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that End-User owns or controls to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose without payment of any consideration, attribution, or any other remuneration to End-User.
   14. No Third-Party Beneficiaries.  This EULA is intended for the sole and exclusive benefit of the parties hereto and is not intended to benefit any third party. Only the parties to this EULA may enforce it and only the parties to this EULA may enforce the binding dispute resolution procedures.
   15. Internet Access.  End-User’s access to the Software, Software Releases, support services, and Professional Services will require access to the internet, and access to the internet is solely the End-User’s responsibility.  

O. Acceptance

This Agreement is effective upon the earlier of (a) your first use of the software, or (b) your acknowledgment of these terms via electronic acceptance (including clicking “I Agree,” accessing, or using the software).