This Software License Agreement (“Agreement”) is entered into between you, the “Customer”, and “AHGO.” AHGO and Customer agree that the following terms and conditions will apply to the licenses and services provided by AHGO to Customer, including the use of the AHGO platform, as described in the applicable Order between the parties (the “Services”). AHGO and Customer agree that the following terms and conditions will apply to the licenses and services provided under this Agreement and Orders attached hereto.

  1. Software License

    1. During the Subscription Term (as defined in the applicable Order), Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the Services solely for Customer’s own use subject to the terms of this Agreement and up to the user limits documented in an Order.

    2. Customer acknowledges that under the SAAS Services, AHGO will not be delivering copies of the Services to Customer or creating any work for hire for Customer.

  2. Title and Restrictions

    1. Title and Copyright. This Agreement confers no ownership rights to Customer and is not a sale of any rights in the Services. Subject to the licenses granted herein, AHGO shall own all right, title and interest in and to the Services, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. 

    2. Restrictions. Customer shall not, and shall not permit anyone to: (i) sell, resell, rent or lease the Services or use it in a service provider capacity; (ii) use the Services to store or transmit unsolicited marketing emails, libelous or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third party rights; (iii) interfere with or disrupt the integrity or performance of the Services; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) except as may be permitted by law, reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (vi) access the Services to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; (vii) utilize the Services in a manner that exceeds the license parameters provided on the relevant Order; (viii) use the Services in violation of any Applicable Law (as defined below) or for any purpose not specifically permitted in this Agreement; or (ix) introduce, post, or upload to the Services any Harmful Code (as defined below).  As used in this Agreement, (1) “Applicable Law” means, with respect to any entity or person, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such entity or person, or any of its properties, assets, or business operations, and (2) “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.

  3. Orders and Delivery

    1. Orders. This Agreement may include an initial Order (which shall be attached hereto and incorporates the terms of this Agreement by reference). Customer may purchase additional Services by executing additional Orders. 

  4. Price and Payment

    1. Price. The fees for Services shall be set forth in the applicable Order. The fees required to be paid hereunder do not include any amount for taxes, duties or import/export fees. If withheld by a government entity, Customer shall reimburse AHGO and hold AHGO harmless for all sales, use, VAT, excise, property, or other taxes or levies, duties or import/export fees which AHGO is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). Unless Customer provides AHGO with a valid exemption certification from the applicable taxing authority, Customer shall pay to AHGO or its agents the amount of any such tax.

    2. Payment. Unless otherwise stated in an Order or payment is made through a Partner, Customer agrees to pay AHGO all fees due hereunder net thirty (30) days from date of invoice. Customer obligations to pay all accrued charges shall survive the expiration or termination of this Agreement.

  5. Data Ownership

    1. Customer Content.  Customer shall continue to own all content it uploads into the Services (“Customer Content).  Customer provides AHGO a limited license to use Customer Content to provide the Services or as otherwise provided herein.

    2. Data Collection.  Customer agrees that AHGO may collect and use (a) data regarding Customer’s use of the Services or (b) aggregated data derived from Customer Content (collectively “Usage Data”), provided that in each case AHGO may only share Usage Data on a non-confidential basis with a third party in an anonymous and aggregated format which does not identify Customer or any individual.

  6. Warranties

    1. Mutual Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Orders; (ii) the execution, delivery, and performance of this Agreement, and Orders and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this Agreement shall comply with all Applicable Laws.

    2. Customer Warranties. Customer represents and warrants to AHGO that (i) it has all necessary rights, and has obtained all necessary consents, to upload the Customer Content and use the Customer Content in connection with the Services, and to grant the rights and licenses granted hereunder with respect to all Customer Content and (ii) the Customer Content does not and will not infringe, violate, or misappropriate any right of any third party, including, without limitation, any intellectual property rights.

    3. Warranty Disclaimer. AHGO PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. AHGO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, ORAL OR WRITTEN, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, REGARDING THIS AGREEMENT OR ANY SOFTWARE LICENSED HEREUNDER. AHGO DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SOFTWARE.

  7. Indemnification. 

    1. Customer Indemnification. AHGO shall hold Customer harmless from third party claims to the extent alleging (a) infringement by the Services of any United States property right, except where such infringement is alleged to result from a change to the Services made by Customer or the misuse of the Services by Customer, or (b) Customer’s violation of Applicable Law.

    2. AHGO Indemnification. Customer shall hold AHGO harmless from third party claims to the extent alleging (a) infringement by the Customer Content of any United States intellectual property right, except where such infringement is alleged to result from a change to the Customer Content made by AHGO or the misuse of the Customer Content by AHGO, or (b) AHGO’s violation of Applicable Law.

    3. Procedure. The indemnified party shall promptly notify the indemnifying party in writing of any third-party claim for which the indemnifying party may have obligations under this Section; provided, however, that any failure of the indemnified party to provide prompt written notice pursuant to this Section 9 shall excuse the indemnifying party only to the extent that it is prejudiced thereby.  The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s sole expense, with regard to the defense of any claim.  The indemnifying party shall have full control of any such claim and the authority to settle or otherwise dispose of any suit or threatened suit.  In no event, however, may the indemnifying party agree to any settlement of any claim for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability or obligation upon the indemnified party, without the indemnified party’s prior, written consent.

  8. Limitation of Liability

    1. Liability Limit. EXCEPT AS STATED BELOW, IN NO EVENT SHALL AHGO BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS STATED BELOW, IN NO EVENT SHALL AHGO’S TOTAL CUMULATIVE LIABILITY PURSUANT TO THIS AGREEMENT EXCEED THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO AHGO UNDER THIS AGREEMENT FOR THE SERVICES AT ISSUE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

    2. Exceptions. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION
      SHALL NOT APPLY TO ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

  9. Confidentiality

    1. Treatment of Confidential Information. Each party acknowledges that in the course of this Agreement it may be entrusted with information from the other and agrees that it shall use commercially reasonable efforts to protect the confidentiality thereof. “Confidential Information” means all information disclosed by one party (“disclosing party”) to the other party (“receiving party”), before or after the date of this Agreement, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by the receiving party to the extent that it contains, reflects, or is derived from Confidential Information. Confidential Information of AHGO includes, without limitation, the Software and Documentation. The terms and conditions of this Agreement are Confidential Information; however, the existence of this Agreement is not Confidential Information. The receiving party shall retain the Confidential Information of the disclosing party in confidence and shall use and disclose it solely for the purpose of, and in accordance with, this Agreement. The receiving party shall only disclose Confidential Information of the disclosing party to those of its employees with a need to know such Confidential Information and who have been informed of the obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth herein. The receiving party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, including, without limitation, securing all servers, drives or media on which the Confidential Information, Software and Documentation are installed or maintained to prevent the unauthorized use or disclosure of Confidential Information. For avoidance of doubt, the terms of this Agreement and the fees identified in a schedule or Order are Confidential Information.

    2. Exclusions. The receiving party shall not be bound by any obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which; (i) was lawfully known to the receiving party prior to disclosure; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the receiving party by a third-party, provided that such third-party is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently developed by the receiving party.

    3. Required Disclosure. If the receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, and (ii) provide prior notice to the disclosing party to allow the disclosing party to seek protective or other court orders.

  10. Term and Termination

    1.     10.1.Term. This Agreement shall commence on the effective date of the earlier applicable Order and shall continue in effect until the termination or expiration of all Orders. 

    2.     10.2.Termination. This Agreement and all Orders may be terminated (i) by mutual agreement of AHGO and Customer, (ii) by either party if the other party commits a material breach of this Agreement (including Customer’s failure to pay an invoice when due) and fails to cure such breach within thirty (30) days following receipt of breach notice, or (iii) by either party if the other party becomes insolvent or is adjudged as bankrupt; makes an assignment for the benefit of creditors; has a receiver appointed; or files a petition of bankruptcy. Termination shall not relieve Customer of its obligation to pay any amounts due upon the date of termination.

    3.     10.3.Effect of Termination. Upon termination of this Agreement or expiration of a Subscription Term, AHGO shall cease providing the Services to Customer. Upon termination, Customer shall immediately pay all amounts due to AHGO. 

    4.     10.4.Survival. The obligations of Sections 3.2, 6, 8, and 10 shall continue following termination of this Agreement.

  11. General

    1.     11.1.Severability. Should any provision of this Agreement be invalid, ineffective, or unenforceable, under present or future laws, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

    2.     11.2.Notice. Notices to either Party shall be in writing to the address indicated in this Agreement (or as later amended) and deemed effective when received.

    3.     11.3.Assignment. Neither party shall assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party and any such prohibited assignment shall be null and void. Notwithstanding the foregoing, (a) either party may assign this Agreement to any party that acquires all or substantially all of its related business by merger, sale of stock or assets, or a similar transaction, and (b) AHGO may subcontract its obligations hereunder to a third party, provided that AHGO shall remain liable for any breach thereof.

    4.     11.4.Entire Agreement. This Agreement and the schedules or exhibits attached hereto or incorporated by reference, constitute the entire agreement between the parties on the subject matter hereof and supersede all prior agreements, communications and understandings of any nature whatsoever, oral or written including any shrink wrap license included with the Software. This Agreement may not be modified or waived orally and may be modified only in writing signed by duly authorized representatives of each party.

    5.     11.5.Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to conflicts of law principles, with jurisdiction in the state and federal courts in New York, New York.

    6.     11.6.Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. Nothing in the foregoing shall be deemed to relieve Customer or its Affiliates of its obligation to pay fees owed under this Agreement.

    7.     11.7.Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one Agreement.

    8.     11.8.Privacy and Acceptable Use. This Agreement shall also include the AHGO Privacy Policy and Acceptable Use Policy as amended from time to time and available at [www.ahgo.co].  AHGO may be contacted at [info@ahgo.co] with any queries regarding data rights, data usage, or user privacy.  AHGO agrees to process all Customer Content, including any personally identifiable information, in compliance with Applicable Law.  Customer consents to the use of downstream sub-processors by AHGO to provide the Services, which list can be obtained by contacting AHGO at [info@ahgo.co].