PLEASE READ THESE TERMS AND CONDITIONS AGREEMENT (“AGREEMENT”).  BY USING THE SOFTWARE (DEFINED BELOW) YOU AND ANY ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THIS AGREEMENT WITH BLOCKFENDERS, INC., A DELAWARE CORPORATION (“BLOCKFENDERS”).  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT USE THE SOFTWARE AND PROMPTLY DELETE ANY COPIES OF IT THAT YOU MAY HAVE.

By agreeing to this Agreement, you represent that you have full power, capacity and authority to accept the terms of this Agreement.  If you are accepting the terms of this Agreement on behalf of an employer or another entity, you and such employer or other entity represent that you have full legal authority to bind such employer or other entity to this Agreement.

This Agreement governs Customer’s use of the Software unless the particular Software is subject to a separate written agreement between Customer and Blockfenders that is signed by Blockfenders, in which case, such other separate written agreement will govern Customer’s use of such particular Software.

Blockfenders and Customer may be referred to in this Agreement individually as a “Party” or collectively as “Parties.”

1.1 “Customer Users” means Customer’s personnel or others interacting with the Software for administration and other use on behalf of Customer.

1.2 “Documentation” means the then-current printed, online and/or electronic documentation, if any, that is provided by Blockfenders to Customer describing the use of the Software.  “Documentation” does not include any sales or marketing materials.

1.3 “Software” means the software provided by Blockfenders including any software provided by Blockfenders that references this Agreement.  The Software may be subject to certain limitations set or modified by Blockfenders in its discretion upon delivery or later from time to time.

1.1 License Grant.  For the term of this Agreement, subject to the terms and conditions of this Agreement, including, without limitation, Article 3 (Customer Use Restrictions and Responsibilities), Blockfenders grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable and limited license to: (a) install the Software on Customer’s own computer systems, and (b) use the installed Software in accordance with the Documentation solely internally, non-commercially, not in production and not for third parties, solely for Customer to preview the Software and not for or with third parties.

1.2 Third Party Software.  Blockfenders may provide certain third-party software with the Software (“Third-Party Software”).  Unless otherwise agreed by Blockfenders in writing, Customer uses Third-Party Software at Customer’s own risk, without warranties, obligations and liabilities from Blockfenders.  The remedies of Customer with respect to any Third-Party Software will be limited to whatever remedies may be available from the third-party provider of the Third-Party Software.

1.3 License Only.  The Software is licensed, not sold, to Customer.  This Agreement does not transfer any right, title or interest in or to any such Software regardless of any use of the terms “purchase,” “acquire,” “sale” or similar language herein or in any agreement between Customer and any third party.

1.1 Restrictions.  Customer will not, in whole or in part, (a) modify, adapt, translate, reverse engineer, make alterations to, decompile, disassemble or make derivative works of the Software; (b) use the Software other than object code format unless Blockfenders provides and authorizes such Software for use in source code form; (c) use, distribute or authorize the use of the Software in connection with or use or allow the use of the Software to make software, a service or other item that competes with or provides function similar to the Software; (d) copy, rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Software to third parties other than providing access to Customer Users in accordance with this Agreement; (e) use the Software for any illegal, unauthorized or injurious purpose; (f) use or permit use of the Software outside of the scope purchased by Customer or outside the scope of or in violation of the terms of this Agreement or Blockfenders policies; (g) interfere with the proper operation of Blockfenders’ systems; (h) circumvent, disable or interfere with any security-related features of the Software or features that enforce limitations on use of the Software; (i) remove any copyright, trademark, patent or other proprietary notices from the Software or Documentation or (j) disclose any results of any benchmarking results of the Software to any third party without Blockfenders’ written authorization.

1.2 Use by Customer Users.  Customer is responsible for the acts and omissions of the Customer Users and shall ensure that Customer Users comply with the applicable terms and conditions of this Agreement.

1.3 Registration Information and Login Credentials.  To the extent the Software requires registration, Customer shall provide accurate registration information (e.g., Customer name, contact information, etc.) and shall update such information promptly upon any change.  Customer will adopt and maintain security precautions for use of any login credentials (e.g., user IDs, passwords) in connection with the Software and access to Blockfenders systems to prevent disclosure and use by unauthorized persons.  Customer is entirely responsible for maintaining the confidentiality of Customer’s login credentials (including those of Customer Users) and for any and all activities that occur in association with Customer’s account and use of the Software, whether or not authorized by Customer.

1.4 Customer Use of the Software.  Customer, and not Blockfenders, is solely responsible for determining whether the Software and results of Customer’s use of the Software including output of the Software is appropriate for use, secure and in compliance with law and Customer’s obligations to its customers and other third parties.  Customer’s use of the Software and such results foregoing is solely at Customer’s risk, regardless of whether the Software or any services or other items provided by Blockfenders have errors, vulnerabilities or other defects.  Any validation, audits, other review or checking or other assistance Blockfenders may provide regarding the Software is without warranty, and Customer shall remain responsible for Customer’s use of the Software.  Customer must take prudent steps to protect against errors, vulnerabilities or other defects.  Customer, and not Blockfenders, is solely responsible for, and shall defend, indemnify and hold Blockfenders harmless from, any liabilities arising from the results of Customer’s use of the Software and claims related thereto and from any third parties including based on warranties or covenants made by Customer.

1.5 Privacy and Security.  As between Customer and Blockfenders, Customer is solely responsible for (a) obtaining any authorizations, consents, releases and permissions that are necessary or desirable for Customer’s use of the Software, and (b) ensuring that its use, re-use and dissemination of the Software is in compliance with applicable laws.  Customer is responsible for having and maintaining its own privacy policy that complies with applicable law.  Customer shall maintain and use reasonable data protection protocols related to Customer’s activities including Customer’s use of the Software.

1.1  Software Ownership.  Blockfenders (and its licensors, as applicable) retains all right, title and interest in and to the Software including, without limitation, all technology and information received by or developed by Blockfenders in connection with the offering or operation of the Software.  Except as expressly provided herein, Blockfenders and its licensors do not grant Customer (or Customer Users) any express or implied rights to the Software.

1.2  Customer Technology.  Blockfenders does not claim any ownership rights in any Customer’s own technology developed without reference to the Software and not including any of Blockfenders’ intellectual property rights.

1.3 Feedback.  To the extent that Customer provides Blockfenders (including by any Customer User) any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Software or any other Blockfenders products or services (“Feedback”), Customer hereby grants to Blockfenders a non-exclusive, perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully-paid-up, sublicensable right and license to copy, distribute, display and create derivative works of and otherwise use such Feedback without restriction, including to improve the Software and to develop, market, offer, sell and provide other products and services.

1.4  No Other Rights.  All intellectual property rights of Blockfenders not expressly granted to Customer in this Agreement are expressly reserved by Blockfenders.  Without limitation, Customer receives no right or license, by implication, estoppel or otherwise, to any software, technology or intellectual property rights not embodied in the Software, even if such other software, technology or intellectual property rights are useful or necessary in connection with the Software.

1.1 “Confidential Information” means: (a) tangible disclosures marked as “Confidential,” “Proprietary,” or that bear any other appropriate notice indicating the confidential nature of such information and (b) information disclosed orally or visually that is identified as “Confidential” by a disclosing Party at the time of disclosure.  The non-public aspects of the Software, including its source code, underlying algorithms and associated technology, are Blockfenders Confidential Information regardless of whether marked and are hereby identified as confidential.

1.2 General.  Each Party receiving Confidential Information (“Receiving Party”) agrees to retain in strict confidence, and use only for matters related to this Agreement, all Confidential Information disclosed by another Party (“Disclosing Party”).

1.3 Exclusions.  The obligations regarding Confidential Information do not apply to information that: (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (b) the Receiving Party can demonstrate to have had rightfully in its possession and without restriction prior to disclosure hereunder; (c) is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information, as can be shown by the written records of the Receiving Party; (d) is lawfully obtained, without restriction, from a third party who has the right to make such disclosure; or (e) is released for publication by the Disclosing Party in writing.

1.4 Protection of Confidential Information.  Each Party agrees to protect the other’s Confidential Information to the same extent that it protects its own confidential information of a similar nature and will take reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information to third parties.  The Receiving Party is responsible for compliance with and any breach of this Agreement by its contractors and must have, prior to providing Confidential Information of the Disclosing Party to any contractor, a written confidentiality agreement with the contractor protecting such Confidential Information from unauthorized disclosure or improper use.

1.5  Authorized Disclosures.  Notwithstanding anything to the contrary in this Article 5 (Confidential Information), the Receiving Party may disclose Confidential Information of the Disclosing Party as required to be disclosed by applicable law.

THE SOFTWARE IS PROVIDED “AS IS,” AND BLOCKFENDERS MAKES NO WARRANTIES RELATED TO THE SOFTWARE, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER ASSUMES COMPLETE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE CUSTOMER’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SOFTWARE.  BLOCKFENDERS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED OR ERROR-FREE.

1.1 IN NO EVENT WILL BLOCKFENDERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SOFTWARE, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE ALLEGEDLY LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

1.2 IN NO EVENT WILL THE TOTAL LIABILITY OF BLOCKFENDERS IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SOFTWARE, WHETHER IN CONTRACT, TORT OR OTHERWISE (COLLECTIVELY, “CLAIMS”), EXCEED THE GREATER OF (A) THE TOTAL FEES PAID BY CUSTOMER TO BLOCKFENDERS FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIMS IN THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE OR (B) $100.

1.3 Allocation of Risk.  The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of essential purpose of any limited remedy.  Customer and Blockfenders each acknowledges and agrees that the limitation of liability provisions of this Section 7.3 (Allocation of Risk) reflect an informed, voluntary allocation between them of the risk associated with Customer’s use and receipt of the Software and, but for this provision, Blockfenders would not have made the Software available to Customer at the prices contemplated under this Agreement.

1.4 Applicable Law.  The warranty disclaimer and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by law, or to the extent that statutory rights cannot be excluded, limited or waived, in which case the disclaimer or limitation shall be modified to disclaim and/or limit in accordance with applicable law.

Customer shall retain records regarding use of the Software.  Blockfenders and its auditors have the right to inspect such records to verify compliance with the Agreement.  In the event that the audit reveals non-compliance, Customer shall pay the cost of the audit.

1.1  Modifications to the Agreement.  Blockfenders may change the Agreement by posting a revised version of the Agreement on either in an updated version of the Software or on Blockfenders’ website, providing Customer notice in accordance with Section 11.7 (Notices), or receiving Customer’s online acceptance of a revised version provided via the Blockfenders website.  The modified terms will be effective upon the posting, notice or online acceptance respectively.  Unless otherwise agreed between Blockfenders and Customer, Blockfenders will not increase pricing applicable to a fixed term ordered and committed to by Customer at a fixed price, though Blockfenders may increase pricing after such term or outside of the scope of such committed order.  By continuing to use the Software after the date of modification, Customer agrees to be bound by the modified terms.

1.2  Other Changes. In the event Blockfenders makes any material changes or updates to its commitments regarding security, confidentiality or availability, Blockfenders will endeavor to provide the changes or updates on the Blockfenders website or by providing Customer notice in accordance with Section 11.7 (Notices).

1.1  Term of Agreement.  Unless terminated earlier as provided herein, this Agreement shall continue until the earlier of: (a) Blockfenders’ release of a commercial or general release version of the Software, or (b) the expiration of any the term specified by Blockfenders in connection with Customer’s order of the Software.

1.2  Termination for Convenience.  Blockfenders may terminate this Agreement for convenience at any time by providing Customer notice of termination at least thirty (30) days in advance of the date of termination.  Customer may terminate this Agreement for convenience at any time effective upon Customer’s notice of termination.

1.3 Termination for Cause.  Either Party may, by giving written notice to the other Party, terminate this Agreement if the other Party commits a material breach of this Agreement, and fails to cure such breach within fifteen (15) days after receipt of written notice of any other breach from the other Party.

1.4 Termination for Bankruptcy or Other Circumstances.  A Party may terminate this Agreement if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

1.5 Right to Suspend the Software.  Blockfenders reserves the right, but not the obligation, to immediately suspend Customer’s or Customer Users’ ability to access and use the Software if Blockfenders has reason to believe that Customer’s or Customer Users’ use of the Software is or is likely to cause harm to or misuse of Blockfenders’ or others’ systems or data or become non-compliant with this Agreement or applicable law, or the subject of a lawsuit or material dispute.

1.6 Effect of Termination or Expiration. Blockfenders is not liable for any loss or damage caused by termination of the Software upon termination or expiration of the Agreement.

1.7 Survival.  The following provisions will survive any termination or expiration of this Agreement: Article 1 (Definitions), Article 3 (Customer Use Restrictions and Responsibilities), Article 4 (Proprietary Rights), Article 5 (Confidential Information), Article 6 (Disclaimers) (as applied to activities during the Term), Article 7 (Limitations of Liability), Article 8 (Audit), Article 10 (Term and Termination) and Article 11 (General).  The licenses to Customer shall terminate upon termination or expiration of this Agreement. a

1.1  Assignment, Successors.  No right or license under this Agreement may be assigned or transferred by either Party, except that Blockfenders may transfer or assign this Agreement to any affiliate, to any successor entity, or to an acquirer of all or substantially all of the business, stock or assets of Blockfenders relevant to this Agreement.  Any assignment, transfer or delegation in contradiction of this provision will be null and void.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and Blockfenders.

1.2 Publicity.  Blockfenders may make reasonable use of Customer’s name in Blockfenders’ promotional and marketing documentation identifying Customer as a user of the Software.

1.3  Force Majeure.  Notwithstanding any other provision of this Agreement, no Party to this Agreement will be deemed in default or breach of this Agreement 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.

1.4  Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, USA and the laws of the United States applicable therein without reference to conflict of law or choice of law principles that would cause the application of laws of any other jurisdiction.  The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this Agreement.  Those who choose to access the Software from outside of California do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.

1.5  Jurisdiction and Venue.  The Parties agree to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any and all disputes, controversies or claims arising under, relating to or in connection with this Agreement, in any manner whatsoever, whether in contract, tort, under statute or otherwise, and including any dispute regarding the existence, validity or enforceability of this Agreement.

1.6  Statute of Limitations.  Regardless of applicable law to the contrary or the applicable dispute resolution process, Customer must file any claim or cause of action arising out of or related to use of the Software or under this Agreement within one (1) year after such claim or cause of action arose.

1.7  Notices.  All notices required or permitted under this Agreement shall be in writing, addressed in each case to the address identified below.

To Blockfenders:  To the address provided on Blockfenders’ website or such other address as may be specified by Blockfenders in writing to Customer.

To Customer:  To the address provided by Customer during registration for the Software.  Blockfenders may provide notice to the email or physical address provided during registration at Blockfenders’ discretion.

1.8 Export.  Customer will comply with all, and will not cause Blockfenders to violate or be penalized under, applicable sanction and export controls, including, without limitation, those of the United States, the European Union, and the United Kingdom (“Trade Restrictions”).  No provision in this section requires or authorizes Customer or Blockfenders to act or omit action in violation of Trade Restrictions.  Without limiting the foregoing, Customer will not export, re-export, transfer, or otherwise deal in or with any products, materials, or information provided by Blockfenders under this Agreement to or for the benefit of: (i) a country or territory that is comprehensively sanctioned under Trade Restrictions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea region, the Donetsk People’s Republic or the Luhansk People’s Republic) (“Sanctioned Territories”); or any person targeted by Trade Restrictions, including, without limitation, those who are (1) owned or controlled by the government of a Sanctioned Territory; (2) designated on the US Treasury Department’s Office of Foreign Assets Control (“OFAC”) List of Specially Designated Nationals and Blocked Persons, any other similar lists maintained by OFAC, the US Commerce Department’s Entity List, Denied Persons List, or Unverified List, the EU Consolidated Financial Sanctions List, or any other similar restricted party lists maintained by relevant regulators under Trade Restrictions; or (3) owned or controlled by any of the foregoing.

1.9 Commercial Item Software. Any use, modification, reproduction, release, performance, display or disclosure of the Software by the U.S. or other government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

1.10 Independent Contractors.  This Agreement does not create a partnership or joint venture between the Parties.

1.11 Entire Agreement; Amendments.  This Agreement constitutes the entire agreement between Blockfenders and Customer with respect to the subject matter hereof.  This Agreement supersedes all prior negotiations, agreements and undertakings between the Parties with respect to such matters.  No inconsistent or additional terms or conditions in any document provided by Customer, including any billing instrument, purchase orders, RFPs, bills of lading or the like shall apply to this Agreement or the activities hereunder, and any such additional terms or conditions are hereby rejected.  Except as provided in Article 9 (Modifications to the Agreement and Other Changes), this Agreement may be amended only by an instrument in writing executed by the Parties or their permitted assignees.

1.12  Waiver.  Neither Party will be treated as having waived any rights by not exercising or delaying the exercise of any right under this Agreement.