Last Updated: January 12, 2018

BY CLICKING ON THE “ACCEPT” BUTTON, DOWNLOADING, INSTALLING OR USING THE CALISTREAM SOFTWARE PRODUCT LICENSED HEREUNDER (THE “PRODUCT”), AS OF TODAY’S DATE (THE “EFFECTIVE DATE”), YOU (TOGETHER WITH THE BUSINESS OR OTHER ENTITY FOR WHICH THE PRODUCT IS OBTAINED, “YOU” OR “CUSTOMER”) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS MASTER LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) WITH CALISTREAM, LLC  (“CALISTREAM”).  THIS AGREEMENT ALSO INCORPORATES THE TERMS OF THE APPLICABLE ORDER SCHEDULE AND/OR SOW EXECUTED BY CUSTOMER AND CALISTREAM.  IF YOU ARE NOT AN EMPLOYEE OF THE CUSTOMER, OR IF YOU ARE NOT OTHERWISE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND CUSTOMER OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AND THE INSTALLATION AND ACCESS TO THE PRODUCT WILL NOT CONTINUE.  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND THOSE STATED IN THE ORDER SCHEDULE AND/OR SOW. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR FUTURE REFERENCE IF YOU DECIDE TO ACCEPT.

CALISTREAM SHALL HAVE THE RIGHT, TO CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT AT ANY TIME, (PROVIDED THAT IT IS NOT CALISTREAM’S INTENT THAT SUCH CHANGE SUBSTANTIALLY AFFECT THE LICENSE RIGHTS GRANTED TO CUSTOMER IN SECTION 3 AND FOR WHICH CONSIDERATION WAS PAID BY CUSTOMER) AND TO CHANGE, DELETE, DISCONTINUE, OR IMPOSE CONDITIONS ON ANY FEATURE OR ASPECT OF THE PRODUCT (INCLUDING BUT NOT LIMITED TO INTERNET BASED SERVICES, PRICING, TECHNICAL SUPPORT OPTIONS, AND OTHER PRODUCT-RELATED POLICIES) UPON NOTICE BY ANY MEANS CALISTREAM DETERMINES IN ITS DISCRETION TO BE REASONABLE, INCLUDING POSTING INFORMATION ON ITS WEBSITE CONCERNING ANY SUCH CHANGE, ADDITION, DELETION, DISCONTINUANCE OR CONDITIONS IN THE PRODUCT. ANY USE OF THE PRODUCT BY CUSTOMER AFTER CALISTREAM’S PUBLICATION OF ANY SUCH CHANGES SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT AS MODIFIED.

Master License and Services Agreement

This Master License and Services Agreement (this “Agreement”) is entered into as of date of Customer clicking on the “accept” button, downloading, installing or using the CaliStream software product licensed hereunder (the “Effective Date”) between CaliStream, LLC, a Delaware limited liability company with its principal place of business at 1443 Hollenbeck Avenue, Sunnyvale, CA, 94087 (“CaliStream”) and the party executing this Agreement as “Customer”.

Background

CaliStream offers software products (each, a “Product” as further described below) based on its data collection and analytics platform.  Each Product is provided on a subscription basis (each, a “Subscription”) and includes support (“Support”) as further described below.  Customer wishes to obtain a Subscription for certain Products for its internal use, and CaliStream has agreed to such Subscription subject to the terms and conditions of this Agreement.

 

In consideration of the foregoing, the parties agree as follows:

Agreement

1. Master Agreement Structure.  This Agreement is structured as a “master” agreement and consists of the following: (a) the general terms and conditions set forth in this document; (b) the terms of the applicable Order Schedule including the applicable Product(s), pricing and Subscription Period; and (c) written statements describing the terms and conditions of any training, consulting or other professional Services provided by CaliStream under a SOW.  The Subscription order information shall be set forth in the applicable Order Schedule, which CaliStream shall provide to Customer via e-mail attachment.  Customer may order additional Products and Services using CaliStream’s standard Order Schedule and/or SOW forms, as applicable, each of which will be deemed governed by this Agreement automatically. The terms of each Order Schedule and SOW, as applicable, will control in the event of any conflict with the general terms and conditions set forth in this document. 

2. Definitions.  As used in this Agreement:

1. “Agreement” means, collectively, the terms set forth below, and any and all exhibits, schedules, and other documents referenced as attachments hereto or referred to herein, and amendments hereto, as well as any SOW and Order Schedule agreed to by the parties, each of which are incorporated herein by this reference. 

2. “Authorized User” means Customer and its employees, representatives, consultants, contractors or agents who are authorized by Customer to use the Product on Customer’s behalf (and solely in connection with their performance of services for Customer).

3. “Confidential Information” means all information of a confidential or proprietary nature concerning the disclosing party’s business which information is either marked as “confidential” or “proprietary” or that a reasonable person would understand to be confidential or proprietary given the nature of the information and the circumstances of the disclosure.  “Confidential Information” includes, without limitation, all know-how, data, processes, techniques, designs, drawings, formulas or test data, trade secrets, prices, algorithm, computer programs (in Source Code and Executable Code), pre-release hardware (both devices and specifications), and any other proprietary information that relates to any research project, work in process, released or unreleased software or hardware product, future product development plans, engineering, manufacturing, marketing, business plans, strategies, financing or personnel matter of the disclosing party, its affiliated companies, and any suppliers, clients, customers, employees, or investors thereof, whether in oral, written, graphic or electronic form.

4. “Customer’s Internal Application” means the Customer’s internal software application, if any, specifically identified in an Order Schedule.

5. “Documentation” means the end user manuals and any online help files provided to Customer along with the Product.

6. “Executable Code” means the fully compiled binary version of a software program that can be executed by a computer and used by an end user without further compilation.

7. “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.

8. “Fees” means the Subscription fees for the Product, as set forth in the applicable Order Schedule.

9. “Subscription Period” means the Order Schedule-specified period(s) during which Customer and Authorized Users may use the Product.  The Subscription Period commences on the Order Schedule effective date and continues for the period described in the applicable Order Schedule (the “Initial Term”).  Upon the expiration of the Initial Term, the license (and Customer’s obligation to pay the applicable Fees) will automatically renew for successive renewal terms of one (1) month each (unless a different renewal period is specified in the Order Schedule) (each, a “Renewal Term”), unless either party: (a) notifies the other in writing of such party’s intent to not renew the Subscription, at least thirty (30) days prior to the Initial Term or then-current Renewal Term, or (b) terminates the license pursuant to Section 7.1, Section 8, or Section 10.

 

10. “Product” means the software program or programs to be licensed to Customer pursuant to the applicable Order Schedule, and any modified, updated, or enhanced versions of such programs that CaliStream may provide to Customer pursuant to this Agreement or to a separate maintenance and support agreement.

11. “Order Schedule” means a document, substantially in the form of CaliStream’s standard Order Schedule to be provided to Customer, detailing the Product and related services to be provided by CaliStream, the fees associated therewith, and any other transaction-specific terms and conditions.  If the parties agree, an Order Schedule may be used in connection with, or in lieu of, an SOW.  In the event that multiple Order Schedules will apply to this Agreement, such Order Schedules will be numbered sequentially.  Any and all mutually executed Order Schedule(s) are deemed incorporated herein by this reference.  Each Order Schedule is intended to define a separate contract particular to that order, incorporating by reference the terms and conditions of the applicable portions of this Agreement.  An Order Schedule may also contain other terms or conditions, mutually agreed upon by CaliStream and Customer, which apply specifically to that particular order/contract.  Customer agrees that each Order Schedule will be signed by a representative having the authority to bind Customer, and that CaliStream may presume that such representative has such authority.  A binding order is created when CaliStream accepts and executes the Customer-executed Order Schedule.  

12. “Source Code” means the human-readable version of a software program that can be compiled into Executable Code.

3. License Grant and Services. 

13. License Grant.  Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay the Fees), CaliStream grants to Customer a non-exclusive, non-transferable (without the right to sublicense or distribute) (except such transfer as permitted under Section 12.3), fee-bearing worldwide license to use the Product (in Executable Code form) during the Subscription Period up to the number of Events, Tables, and AWS S3 Buckets specified on the applicable Order Schedule, solely for Customer’s internal business purposes, and solely as compiled with or incorporated into Customer’s Internal Application(s), and solely in accordance with the Documentation and the limitations set forth in the applicable Order Schedule.  CaliStream also agrees to sell, and Customer agrees to purchase, those Support services described in the applicable Order Form pursuant to Section 12.1 herein.

In addition to the Product initially installed, the term “Product” includes any other programs, tools, internet-based services, components and any “Updates” (for example, Product maintenance, service information, help content, bug fixes, or maintenance releases etc.) of the Product that CaliStream provides or makes available to Customer pursuant to an Order Schedule. As part of CaliStream’s standard support and maintenance services, if purchased by Customer, Customer is entitled to access and/or download Updates to the Product that CaliStream generally makes available to other users of the Product.  Updates shall not include any new service offerings or upgrades with additional functionality that CaliStream makes available to customers for an additional fee. Certain Products may be accompanied by, and will be subject to, additional terms; and in such case, Customer’s continued use of the Product will constitute Customer’s acceptance of and agreement to such changes.

14. No “Sale” of Software.  Customer acknowledges and agrees that CaliStream never sells but only licenses the right to “use” the Product, the Documentation, and related materials, and that no sale or other transfer of any title or ownership or any proprietary interest of any kind whatsoever in or to the Product, Documentation, or related materials is contemplated hereunder.

15. Ownership; Proprietary Rights Notices.  The Product, Documentation, and related materials supplied by CaliStream hereunder, and all Intellectual Property Rights therein or related thereto, are and will remain CaliStream’s (and/or or its licensors’ and suppliers, if applicable) sole and exclusive property.  All rights in and to the Product, Documentation, and related materials not expressly granted to Customer in this Agreement are reserved by CaliStream and its licensors and/or suppliers, and there are no implied licenses granted hereunder.  Customer agrees not to remove, alter, or obscure any proprietary rights notices (including copyright notices) on the Product, Documentation, or related materials, or authorize any third party to do so.  

16. Data; Personal and Other Protected Information.  All data relating to Customer’s operations and all data files created by or for Customer are and will remain Customer’s property.  Customer will not disclose to CaliStream any third party personally identifiable or other information that is subject to contractual or other legal prohibitions.  In the event of such disclosure, Customer will defend and indemnify CaliStream in connection with any related claims or losses.

17. Professional Services.  In connection with the licenses granted hereunder, CaliStream and Customer may agree in writing upon descriptions of services to be performed (“Services”) and deliverables (“Deliverables”) as defined in a SOW and/or an Order Schedule, as well as the applicable fees, duration of the Services, and other responsibilities undertaken by CaliStream and/or Customer. The terms of this Agreement shall be deemed incorporated into and shall govern each SOW.   CaliStream will provide such resources and utilize such CaliStream employees and/or consultants as CaliStream deems necessary to perform any implementation, training, consultation or other professional Services described in a SOW or Order Schedule.  The manner and method used by CaliStream to perform such professional services are subject to CaliStream’s sole discretion.  Customer agrees to provide CaliStream with any required Customer materials needed for CaliStream to perform the Services, and hereby grants CaliStream a limited, royalty-free, non-exclusive, worldwide license to use such materials, for the duration of that SOW or Order Schedule, for the sole purpose of enabling CaliStream to perform the Services described therein.  CaliStream will use commercially reasonable efforts to meet the schedules set forth in the SOW, and Customer agrees to cooperate in good faith to allow CaliStream to achieve completion of such Services in a timely and professional manner.  If achievement of any particular milestone is dependent upon performance of tasks by Customer or by a third party outside of CaliStream’s control, the projected dates for accomplishing such milestones will be approximately adjusted to reflect any changes in such tasks. Subject to any Deliverable or Service specifications in the SOW or Order Schedule (if any), or the warranty contained in Section 7.2 (“Services Warranty”), the Services will be deemed accepted upon delivery.  Unless otherwise expressly set forth in this Agreement, CaliStream is not providing to Customer any CaliStream intellectual property pursuant to this Section 3.5; such CaliStream intellectual property is being provided, if at all, pursuant to the terms of Section 3.1 (“License Grant”) and subject to the restrictions set forth in Section 4 (“License Restrictions”).  Unless otherwise set forth in a SOW, CaliStream will own all right, title, and interest in and to any Deliverables provided pursuant to a SOW, which Deliverables shall be licensed to Customer in a manner consistent with the terms of this Agreement.  Any changes to a SOW shall be agreed upon in writing by both parties.

4. License Restrictions. 

18. Restrictions on Use.  Customer acknowledges that the Product and its structure, organization, and Source Code constitute valuable trade secrets of CaliStream and its licensors and/or suppliers.  Accordingly, Customer agrees not to, and not to authorize any third party (including to any of its affiliates and/or Authorized Users) to: (a) modify, adapt, alter, translate, or create derivative works from the Product; (b) merge the Product with other software (except as specifically permitted in Section 3.1 regarding Customer’s Internal Application); (c) sublicense, lease, rent, loan, permit access to or otherwise transfer (except in connection with a permitted assignment of Customer’s rights permitted under Section 12.3) the Product to any third party (other than access by its Authorized Users as specifically permitted herein), (d) use the Product in any service bureau or time-sharing arrangement, (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Product; (f) directly or indirectly, publish, post or otherwise make available the Product other than as compiled with or incorporated into Customer’s Internal Application, and in such case, such actions are permitted solely for Customer’s internal   business purposes, or (g) otherwise use or copy the Product except as expressly allowed under Section 3.

19. Terms Applicable to Authorized Users.  Customer represents and warrants that each Authorized User is an authorized Customer agent. Customer will be responsible and liable for the acts and omissions of all Authorized Users in connection with this Agreement (such that any act or omission committed by an Authorized User that, if committed by Customer as a party to this Agreement, would be deemed a breach of this Agreement, will be deemed a breach hereof, regardless of whether or not an Authorized User is a signatory to this Agreement), as well as any and all access to and use of the Product by any Authorized User.  

20. License Keys.  Customer acknowledges and agrees that CaliStream may use license keys and other means to limit access to the Product in accordance with the terms of this Agreement.  Customer will not disable or otherwise interfere with the operation of any license key or other mechanism employed by CaliStream hereunder.

21. Product Updates.  Customer acknowledges and agrees that updated Product versions may require Customer to change or update Customer’s Internal Application, and may affect Customer’s ability to use, access or interact with the Product and/or the applicable SDK.

22. Compatibility with Third Party Platform. Customer acknowledges and agrees that the Product cannot be used outside of the Amazon AWS Cloud platform without CaliStream’s prior written consent.  Customer agrees to be bound by, and comply with, any applicable license and use terms and restrictions established by Amazon regarding Customer’s use of the Amazon AWS Cloud platform.

5. Delivery, Installation, and Acceptance. 

23. Delivery.  CaliStream will deliver the Product to Customer within a reasonable period following execution of the applicable Order Schedule.  The Product will be delivered electronically, via a CaliStream data client SDK page, unless otherwise set forth on the applicable Order Schedule.  

24. Hardware and Third Party Software.  Customer agrees that Customer is responsible for procuring and making available the computer hardware and third party software configuration appropriate for use of the Product, as specified by CaliStream.  Customer will be responsible for procuring maintenance for the Customer-side hardware and software throughout the term of the applicable license.  For the avoidance of doubt, CaliStream will not be responsible for any issues arising out of or relating to any hardware or third party software.  Without limiting the generality of the foregoing, CaliStream will specify the minimum approved hardware configuration and specifications required in order to operate the Product.  CaliStream uses commercially reasonable efforts to ensure that such configuration and specifications remain current.  However, Customer acknowledges that as current technology changes and becomes obsolete, CaliStream may be required to update specifications accordingly and therefore, CaliStream is unable to guarantee compatibility with current hardware or third party software specifications for more than one (1) year after the hardware or software has been specified.

25. Acceptance.  Subject to any Deliverable or Service specifications in the SOW or Order Schedule (if any), the Product will be deemed irrevocably accepted upon delivery.

        

6. Fees and Payment. 

26. Fees.  Customer will pay the Fees and applicable Support and maintenance fees and other Services fees to CaliStream as set forth in the applicable Order Schedule or SOW.  Such Fees are due and payable in advance of the applicable Subscription Period for which they are owed, and are not be subject to Customer’s physical receipt of an invoice.  All payments must be made in U.S. dollars.  Except as stated in the applicable Order Schedule, CaliStream may, in its sole discretion, increase the Fees for any Renewal Term, with at least thirty (30) days’ notice prior to such Renewal Term; and in such case, Customer may elect not to renew the Subscription.

27. Taxes.  The fees payable to CaliStream hereunder exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on CaliStream’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery or license of the Product and/or related services to Customer.  Customer will make all payments of the Fees to CaliStream free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of the Fees to CaliStream will be Customer’s sole responsibility, and Customer will provide CaliStream with official receipts issued by the appropriate taxing authority, or such other evidence as CaliStream may reasonably request, to establish that such taxes have been paid.  In the event any products or services are provided Customer outside of the United States, if Customer is required to make any deduction, withholding or payment for taxes in any jurisdiction on amounts payable to CaliStream, such amounts will be increased such that after making such deduction, CaliStream receives an amount equal to what it would have received if such deduction, withholding or payment had not been made.

28. Invoice Disputes; Late Fees.  Any invoice disputes must be initiated by Customer in good faith, in writing, within the specified payment period of the applicable invoice; otherwise, Customer will be deemed to have waived any dispute regarding the applicable invoice.  If Customer initiates a dispute with regard to a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable.  CaliStream and Customer agree to use good faith efforts to address and resolve any properly initiated dispute, within thirty (30) days following Customer’s notice to CaliStream regarding such dispute.  With regard to any undisputed invoiced amount that is not paid when due, CaliStream reserves the right to charge, and Customer agrees to pay, a late fee of one and one-half percent (1-1/2%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by applicable law, whichever is less, from the due date until paid, plus any attorney’s fees and collection costs.  If it is determined that CaliStream properly charged the amount disputed by Customer, the late fee will be assessed and paid on the disputed amount.

7. Warranties.

        

29. Performance; Product Warranty.  Subject to the terms of this Section 7 and the applicable  Order Schedule, for a period of thirty (30) days after initial delivery of the Product to Customer following the Effective Date (the “Product Warranty Period”), CaliStream warrants that the Product, when used as permitted under this Agreement and in accordance with the instructions in the Documentation (including use on a computer hardware and operating system platform supported by CaliStream), will operate substantially as described in the Documentation.  CaliStream does not warrant that the Customer’s use of the Product will be error-free or uninterrupted.  CaliStream will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct (by providing either a bug fix or a workaround for) any reproducible error in the Product reported to CaliStream by Customer in writing during the Product Warranty Period.  If CaliStream determines that it is unable to correct the error, either party will have the immediate right to terminate the Order Schedule; and if terminated, CaliStream will refund to Customer all Fees actually paid for the applicable non-conformance period, and Customer’s right to use the Product will be terminated.  Any such error correction provided to Customer will not extend the original Product Warranty Period.

30. Services Warranty.  Subject to the terms of this Section 7 and the applicable SOW, CaliStream warrants to Customer that the Services will be performed in a workman-like manner in conformance with applicable industry standards. In the event of a breach of the foregoing warranty, Customer must notify CaliStream within fourteen days (“Review Period”) of its receipt of such Services, and CaliStream will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, re-perform and re-deliver the applicable Services to Customer.  The warranty described herein will expire upon conclusion of the Review Period.

31. Viruses.  The term “Virus” means any computer code intentionally designed to (a) disrupt, disable, harm, or otherwise impede in any manner the proper operation of a computer program or computer system or (b) damage or destroy any data files residing on a computer system without the user’s consent.  CaliStream will use commercially reasonable efforts in screening the Product before delivery, to reduce the possibility of the existence of a Virus.   If CaliStream performs such screening, but Customer is able to demonstrate that the Product supplied by CaliStream is the source of a Virus introduced into Customer’s computing environment, CaliStream’s sole obligation will be to deliver a new copy or copies of the Product free of the identified Virus, at no charge to Customer and as Customer’s sole remedy for breach under this Section 7.3. Customer acknowledges that not all Viruses can be detected by such programs and, therefore, CaliStream does not represent or warrant that such Product will be free of Viruses. For purposes of clarity, any license key or other mechanism employed by CaliStream to ensure compliance with this Agreement (as referenced in Section 4.3) shall not be deemed a Virus.

32. Limitations.  The remedies provided herein are Customer’s sole and exclusive remedies, and CaliStream’s sole and exclusive obligations and liability, for any breach of warranty hereunder.  The warranties provided herein are for the benefit of Customer only and will not apply to the extent any non-conformance is the result of: (i) any use of the Product not in accordance with this Agreement and/or with CaliStream’s instructions, including those contained in the Documentation, (ii) any use of the Product in combination with other products, equipment, software, or data not supplied by CaliStream, and/or a failure of any products, equipment, software or data not supplied by CaliStream, (iii) any use of any release of the Product other than the most current release made available to Customer, or (iv) any modification of the Product by any person other than CaliStream (or its authorized agents or subcontractors).

33. Disclaimers.  The express warranties in this Section 7 are in lieu of all other warranties, whether express, implied, or statutory, regarding the Product, including any warranties of merchantability, fitness for a particular purpose, title, interference with Customer’s quiet enjoyment, and non-infringement of third-party rights, each of which is disclaimed by CaliStream and its licensors and suppliers. Except for the express warranties stated in this Section 7, CaliStream and its licensors and suppliers make no warranties, whether express, implied, or statutory regarding or relating to the Products or Services furnished or provided to customer under this agreement, and the Product and Services are provided “As Is” with all faults, and the entire risk as to satisfactory quality, accuracy, and effort is with the Customer. Customer acknowledges and agrees that it has not relied on any oral or written information or advice, whether given by CaliStream, its suppliers, dealers, distributors, agents or employees.

        

8. Infringement Claims.  CaliStream will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Product directly infringes any third party U.S. patents or copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law, and CaliStream will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on Customer notifying CaliStream promptly in writing of such action, Customer giving CaliStream sole control of the defense thereof and any related settlement negotiations, and Customer cooperating with CaliStream and, at CaliStream’s request and expense, assisting in such defense.  If the Product becomes, or in CaliStream’s opinion is likely to become, the subject of an infringement claim, CaliStream may, at its option and expense, either (a) procure for Customer the right to continue using the Product, (b) replace or modify the Product so that it becomes non-infringing, or (c) accept return of the Product and give Customer a refund for the Fees paid by Customer less a reasonable allowance for the period of time Customer has used the Product.  Upon payment of the applicable refund, if any, the affected license(s) will terminate.  Notwithstanding the foregoing, CaliStream will have no obligation under this Section 8 or otherwise with respect to any infringement claim based upon: (i) any use of the Product not in accordance with this Agreement and/or with CaliStream’s instructions, including those contained in the Documentation, (ii) any use of the Product in combination with other products, equipment, software, or data not supplied by  CaliStream, and/or a failure of any products, equipment, software or data not supplied by CaliStream, (iii) any use of any release of the Product other than the most current release made available to Customer, or (iv) any modification of the Product by any person other than CaliStream (or its authorized agents or subcontractors).  This Section 8 states CaliStream’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.

9. Limitation of Liability.  In no event will CaliStream be liable for any consequential, indirect, exemplary, special, or incidental damages, including any lost data and lost profits, or the cost of procurement of substitute goods and services, arising from or relating to this Agreement even if CaliStream has been advised of the possibility of such damages.  Except to the extent that a disclaimer on direct damages is not permitted under applicable law, CaliStream’s total cumulative liability in connection with this Agreement and the Product and Services, whether in contract or tort or otherwise, will not exceed the amount of Fees paid to CaliStream in the one (1) month preceding the claim.  Customer acknowledges that the Fees reflect the allocation of risk set forth in this Agreement and that CaliStream would not enter into this Agreement without these limitations on its liability.  In addition, CaliStream disclaims all liability of any kind of CaliStream’s suppliers and licensors.

        

10. Term and Termination.

        

34. Term.  The term of this Agreement will begin on the Effective Date and will continue indefinitely unless terminated pursuant to Section 10.2.  However, the expiration date of the applicable Subscription Period will be in accordance with the applicable Order Schedule.  This Agreement will automatically expire in the event that there is not, at such time, an Order Schedule then in effect.

35. Termination.  Provided that Customer is not otherwise in breach of this Agreement and has paid all amounts owed to CaliStream, Customer may terminate this Agreement (in whole or in part (i.e., as to any specific Order Schedule(s)) at any time, with or without cause, upon written notice to CaliStream; provided that such termination will not be effective until each then-current Subscription Period has ended.  CaliStream may terminate this Agreement (in whole or in part (i.e., as to any specific Order Schedule(s)), without cause, upon at least thirty (30) day’s advance written notice to Customer, or effective immediately, with cause, if (a) Customer breaches any provision in Section 4, (b) Customer fails to pay any portion of the Fees when due, or (c) Customer breaches any other provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from CaliStream.  Termination of a single Order Schedule will not affect the other Order Schedules not otherwise terminated.

        

36. Effects of Termination.  Upon termination or expiration of this Agreement (or an Order Schedule) for any reason, any amounts owed to CaliStream under this Agreement (or the applicable Order Schedule(s)) before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement (or such Order Schedule(s)) will immediately cease to exist, and Customer must promptly discontinue all use of the Product licensed under the affected Order Schedule(s), erase all applicable copies of the Product from Customer’s computers, and return to CaliStream or destroy all copies of the Product and Documentation on tangible media in Customer’s possession or control and certify in writing to CaliStream that it has fully complied with these requirements.  Furthermore, each party will immediately return to the other party all Confidential Information in its possession, custody or control in whichever form held (including all copies or embodiments of the Confidential Information) and will cease using any trademarks, service marks and other designations of the other party. Customer will not be entitled to any compensation or reimbursement of any expenses based on the expiration or termination of this Agreement.

37. Survival.  Sections 2 (“Definitions”), 4 (“Restrictions on Use”), 7.4 (“Limitations”), 7.5 (“Disclaimers”), 9 (“Limitation of Liability”), 10.3 (“Effects of Termination”), 10.4 (“Survival”), 11 (“Confidentiality”), and 12 (“General”) will survive expiration or termination of this Agreement for any reason.

11. Confidentiality.  

1. The parties acknowledge that Confidential Information may be disclosed by one party (“Discloser”) to the other (“Recipient”) in connection with this Agreement. Confidential Information also may include proprietary information of third parties who have granted licenses to or have contractual relationships with the Discloser.  In any event, CaliStream’s Confidential Information includes all non-public pricing information and all technical information and software included in or provided with the Products.  In any event, Customer’s Confidential Information includes any and all data provided to CaliStream in connection with Customer’s use of the Products and CaliStream’s provision of Support and Services.  This Agreement, including any Order Schedules or SOWs), and their terms and conditions are also deemed Confidential Information.

2. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder.  Recipient will not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use.  The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly disclosed to Recipient, without restriction, by another person with the legal authority to do so; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.  

12. General.

3. Maintenance and Support.  Subject to Customer’s timely payment of the applicable fees as set forth in an Order Schedule, during such paid Support term CaliStream will provide standard support and maintenance services with regard to the Product in accordance with CaliStream’s then-current support and maintenance terms and conditions.  

4. Notices.  Notices will be sent by first-class mail, overnight courier, or prepaid post, sent to the address set forth above, to the other party’s respective CEO and will be deemed given three (3) business days after mailing or upon confirmed delivery or confirmed receipt.

5. Assignment.  Customer may not assign or transfer this Agreement (or Customer’s rights hereunder), by operation of law or otherwise, without CaliStream’s prior written approval.  Any attempted assignment in violation of the foregoing will be null and void.  

6. Governing Law.  This Agreement will be governed by California law, without regard to the conflicts of law provisions of any jurisdiction.  Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in Santa Clara County, California; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT.  

7. Remedies.  Except as provided in Sections 7 (“Warranties”) and 8 (“Infringement Claims”), the parties’ rights and remedies hereunder are cumulative.  Customer acknowledges that the Product contains CaliStream’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to CaliStream for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy. 

8. Severability.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.  Without limiting the generality of the foregoing, Customer agrees that Section 7.4 (“Limitations”) and Section 9 (“Limitation of Liability”) will remain in effect notwithstanding the unenforceability of any provision in Section 7 (“Warranties”) or Section 8 (“Infringement Claims”).

9. Independent Contractors.  The parties are independent contractors.  No joint venture, partnership, employment, or agency relationship exists between Customer and CaliStream as a result of this Agreement or use or delivery of the Product or Services.  

10. No Publicity. Developer will not issue any press release or otherwise make any public announcement with respect to this Agreement, any CaliStream Technology, or Developer’s relationship with CaliStream without CaliStream’s prior written consent.

11. U.S. Government End Users.  If Customer is a branch agency or instrumentality of the United States Government, the following provision applies.  CaliStream provides the Product, including related technology, in accordance with the following: Government technical data and software rights related to the Product include only those rights customarily provided to the public as defined in this Agreement. This customary access right and license is provided  in accordance with  FAR  12.211  (Technical  Data)  and  FAR  12.212  (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with CaliStream to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights, must be included in any applicable contract or agreement. 

12. Waiver.  The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing.  

13. Construction.  Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.  As used in this Agreement, the word “including” means “including but not limited to.” 

14. Force Majeure.  Each party’s obligations will be suspended to the extent and for the period of time that such party is hindered or prevented from complying therewith because of labor disturbances (including strikes and lockouts), acts of God, wildfires, storms, floods, unreasonable delays in transportation, governmental action or any other cause reasonably beyond either party’s control.  The party who has been so affected will promptly give notice to the other party and will use commercially reasonable efforts to resume performance as soon as possible.  The foregoing provisions shall not apply to Customer’s obligation to pay any amounts to CaliStream when due.

15. Compliance with Laws.  Each party will comply with all federal, state, and local laws applicable to the Product and Services and their use, this Agreement, and the conduct of its business. Specifically and without limiting the foregoing obligation, Customer acknowledges the Products are subject to export controls under the laws and regulations of the United States (“Export Laws”).  Customer will comply strictly with all Export Laws and will not export or disclose the Products to any destination or individual national or resident prohibited by any Export Laws.  In no event will CaliStream be responsible for providing, implementing, configuring, or coding the Product in a manner that complies with any laws or regulatory requirements that apply to Customer’s business or industry (collectively “Customer Specific Laws”).  Customer agrees that it will comply with all such Customer Specific Laws and, regardless of anything to the contrary, in no event will CaliStream, its affiliates or related entities be held liable for any claim or action arising from or related to Customer’s failure to comply with any Customer Specific Laws.  

16. Entire Agreement.  This Agreement, including any and all exhibits, schedules and other documents referenced as attachments hereto or referred to herein (which are incorporated herein by this reference), comprises the entire agreement between Customer and CaliStream and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter.  In the event of a conflict between the terms of this Agreement and the terms of any SOW, any Order Schedule, or other exhibit hereto, such conflict will be resolved in the following order: (a) any Order Schedule; (b) this Agreement, exclusive of any exhibits; and (c) any SOW.  Any preprinted terms on any Customer ordering documents will have no effect on the terms of this Agreement and are hereby rejected.