Software License and Service Agreement

1. License Grant.
   Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive and non-transferable license to access and use the Application solely to verify Customer Data. The term "Application" means the Company's software licenses provided to Customer.
   
   Customer acknowledges that Company owns the exclusive right, title, and interest throughout the world to the Application and any portions or copies thereof, all Proprietary Rights therein, and all related technical know-how. The license granted hereby shall not constitute a sale of the Application nor the underlying software and know how. Customer further acknowledges that any derivative products, ideas or suggestions made by Customer with regard to the improvements or modifications to the Application shall become the property of Company. Customer hereby assigns and ensures that each User shall assign to Company all rights, title and interest that Customer or any User may have in and to any such derivative products, ideas, suggestions, improvements or modifications. The Term "User" means any individual or entity employed or authorized by the Customer to access the application.
   
   All rights not expressly granted to Customer under this Agreement are expressly reserved to Company. Customer shall not knowingly permit third parties to directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas, algorithms, or technology of the Application; (b) modify, translate, or create a derivative works based on the Application; (c) install, sublicense, rent, lease, distribute, sell, resell , assign, or otherwise transfer the rights to access and use the Application to any third party as a service bureau or any other means; or (d) remove any proprietary notices, trademarks, or labels contained on or within the Application or any graphical representation thereof.
   
   
2. Fees and Payment.
   
   Customer shall pay Company the fees set forth on the Pricing and Payment portion of this Agreement, together with all applicable taxes (the "Fees"). Unless otherwise specified in the Pricing and Payment portion below, during the first three months of service the credit card Customer has supplied will be charged each time Customer has accrued a $300 balance. After the introductory period an invoice will be sent within the first week of the new month and the credit card on file will be charged the same day. Any payment not made by respective due date may result in loss of Xverify services until account is current. Payments not made within 3 days from the due date shall have their Xverify account disabled until payment has been made.
   
   
3. Term.
   
   The initial term of this Agreement (the "Initial Term") will commence on the Effective Date and, unless terminated by either Party, will continue for a period of one (1) month. Thereafter, this Agreement shall automatically renew for additional one (1) month periods (each a "Renewal Term") unless terminated earlier pursuant to “Termination” clause of this agreement. The Initial Term and any Renewal Term shall constitute the entire term ("Term") of this Agreement.
   
   
4. Technical Support Services.
   
   Company shall offer free technical support for issues resulting from the standard use of the Application. This support may come in the form of email or telephone support. However, Company shall not offer support to Customer's Partners. The term "Customer's Partners" shall mean any third party Customer has authorized to use its instance of the Application.
   
   
5. Service Level Agreement.
   
   In the event the Application experiences a defect or failure, Company will resolve the defect or failure of the Application in accordance with the provisions of this Agreement. Company warrants and guarantees that service downtime will not exceed one percent (1%), excluding maintenance downtime. If Customer experiences downtime for more than one percent (1%) during a calendar month, a 5% credit will be issued for the current month's billing period. The Downtime Credit does not apply to: (a) downtime resulting from power outages or other force majeure events as provided for in the Agreement, (b) any downtime not attributed solely to the Company, and (c) any planned downtime of which Customer is given at least 24 hour notice.
   
   
6. Data Ownership, Aggregation and Storage.
   
   "Customer Data" consists of information input into the Application by Customer or Customer's Partners, and User behavior on Customer's website captured by the Application. Company agrees that Customer will own all Customer Data, and that Customer Data shall not be copied, disseminated, sublet, resold, or republished by Company in any manner whatsoever. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Customer Data may be disclosed by Company to: i) third party service providers (“Contractors”) solely in connection with Company’s performance of its obligations under this Agreement; and ii) Affiliates of Company where “Affiliates” is defined as an entity that is owned by, under common ownership with, or owns Company. Such Contractors and Affiliates shall be under confidentiality obligations at least as restrictive as those set forth in this Agreement. Company shall be liable to Customer for Contractors and Affiliates use of the Customer Data that is not permitted by this Agreement. Other than as specifically set forth in this Agreement, Company shall not disclose the Customer Data to any third party unless (a) directed by Customer, or (b) such disclosure is made by Company in response to a court order, and provided that Company has given Customer reasonable notice of such court order. Company may use Customer Data for internal data indexing, data linkage, and data inferencing, in order to improve Company's products and services. For example, Customer Data may reveal that an email address is a bot or a spam trap, and Company may retain that information.
   
   "Company Data" includes any information or tracking methodologies generated by the Application, regardless of whether or not the information or tracking methodology was generated as a result of Customer's use of the Application. All data that is not Customer Data belongs to Company and is considered Company Data.
   
   Customer acknowledges and agrees that: Customer Data, and any data, personal or otherwise, that is the subject of or otherwise used, manipulated, verified or accessed, has been provided or collected by the Customer or other third party and not by Company. Customer represents and warrants that use of the Customer Data under this Agreement does not violate any laws, intellectual property rights or any agreements with third parties.
   
   
7. Confidentiality.
   
   During the Term of this Agreement and for three(3) years thereafter, each Party receiving Confidential Information (the "Receiving Party") of the other Party (the "Disclosing Party") shall: (a) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized person on its behalf; (b) not use, disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such party's employees who have a need to know such Confidential Information, and have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith); and (c) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care.
   
   Furthermore, each Party shall use commercially reasonable efforts to procure from each of its employees and from all independent contractors representations that: (a) they will not use, disclose or otherwise make available or allow to be used, disclosed or made available, the Confidential Information of the Disclosing Party, by or to any third party (except as authorized herein); and (b) they will maintain the confidentiality of such Confidential Information. Confidential Information does not include information that: (a) was or is in the public domain prior to the date of disclosure; (b) was or is lawfully received by the Receiving Party from a third party without obligation of confidentiality; (c) was or is already known by or in the possession of the Receiving Party; or (d) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Receiving Party gives written notice to the Disclosing Party as far in advance as possible prior to disclosure.
   
   The Receiving Party acknowledges that the Disclosing Party shall incur irreparable damage if the Receiving Party should breach any of the provisions of this Section. Accordingly, if a Receiving Party or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section by the Receiving Party.
   
   
8. Disclaimer of Warranties.
   
   EXCEPT AS STATED IN THIS AGREEMENT, THE APPLICATION IS PROVIDED "AS IS" AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE APPLICATION OR THE OPERATION OR USE THEREOF. COMPANY HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. COMPANY HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR OF NON INFRINGEMENT, CONCERNING THE APPLICATION, OPERATION, OR USE THEREOF. COMPANY DOES NOT WARRANT THAT THE APPLICATION WILL MEET ALL OF CUSTOMER'S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE.
   
   
9. Disclaimer of Damages and Limitation of Liability.
   
   IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF TORT OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY'S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY CUSTOMER AS SUBSCRIPTION FEES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE ALLEGED DAMAGES.
   
   
10. Indemnification
    
    Customer and its successors and assigns shall indemnify, defend, and hold harmless Company, and its Affiliates, shareholders, directors, officers, employees and agents, and its and their successors and assigns, from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys' fees and costs that any such indemnified party may incur or suffer, which arise, result from, or relate to (a) a breach of any of Customer's representations, warranties and covenants set forth in this Agreement; or (b) a breach of this Agreement by Customer; (c) Customer's goods or services.
    
    Company shall have no liability or indemnity obligation for any claim arising from (i) the use of the Application in combination with non-approved third party products, including hardware and software, (ii) modifications or maintenance of the Application by a party other than Company, or (iii) the use of the Application in any manner not authorized herein or in violation of this Agreement.
    
    The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party's prior written approval. The indemnifying party will pay any and all costs, damages and reasonable attorney's fees and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any such claim, suit or proceeding.
    
    
11. Compliance with Applicable Laws.
    
    Customer shall comply with all applicable laws, including without limitation, all international, European Union, laws of foreign nations, United States federal law, and state, county and local laws, ordinances, regulations, and codes, and will procure all required permits, approvals, inspections and certificates in order to operate their respective businesses in compliance with all applicable laws.
    
    
12. Termination.
    
    Either Party may terminate this Agreement: (a) effective upon providing written notice, if the other Party breaches or violates any of its material obligations set forth in this Agreement, and fails to cure such breach or violation within 48 hours, including payment of Fees, after receiving written notice of such breach or violation from the other Party; (b) immediately if the other Party undergoes a bankruptcy; or (c) effective by providing written notice to the other Party at least seven(7)days prior.
    
    Upon notice from Company where Customer's Partners are in violation of this Agreement, Customer will immediately terminate any such partner from using the Application. Customer agrees that if Customer's Partners or Customer jeopardizes Company's network connection, and/or jeopardizes Company's business in any way, that Customer's account may be terminated by Company.
    
    Upon termination of this Agreement: Customer shall: (a) discontinue, and ensure that each User discontinues, all use of the Application; and (b) return to Company, or destroy, the Confidential Information of Company and all copies thereof. In addition, Customer shall be liable for all Fees (if any) incurred prior to the effective date of termination, and shall not be entitled to a refund of any fees paid by Customer prior to the date of termination. Company shall: (a) return to Customer, or destroy, the Confidential Information of Customer and all copies thereof; (b) return all Content and/or Customer Data, and all copies thereof, to Customer.
    
    
13. Jurisdicton and Venue; Dispute Resolution.
    
    The Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles, and shall benefit and be binding upon the parties hereto and their respective successors and assigns. Any dispute arising from this Agreement shall be decided solely and exclusively by a court of competent jurisdiction located in New York City, New York. The prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys' fees, costs and expenses.
    
    
14. 1. Relationship of the Parties.
       
       Each Party hereto is an independent contractor and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between Company and Customer, and neither Party shall be authorized to bind the other in any way. This Agreement is between Company and Customer, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any User accessing the Application by means of an account established by Customer).
    2. No Waiver.
       
       The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.
       
       
    3. Remedies; Amendment.
       
       Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement, and any approval or consent hereunder must be in writing and signed by the Party against whom enforcement is sought or the Party providing such approval or consent.
       
       
    4. Assignment.
       
       Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement without the prior written consent of the other Party; provided, however, that either Party may assign any of its rights and delegate any of its obligations under this Agreement to any Affiliate and to a purchaser or acquirer of all or substantially all of the business of the assigning Party.
       
       
    5. Invalidity.
       
       If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the Parties hereto.
       
       
    6. Headings.
       
       The headings set forth in this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.
       
       
    7. Use of Customer's Trademarks.
       
       Customer grants to Company for the term of this Agreement, a non-exclusive, non-transferable license to use, reproduce, publicly and digitally display, and broadcast Customer's name, trademarks, trade names, service marks, logos, and URL's ("Customer Trademarks") to advertise and promote the Company and its Application. Company agrees that nothing in this Agreement shall give it any right, title, or interest in or to Customer Trademarks other than the right to use the Customer Trademarks in the manner contemplated by this Agreement.
       
       
    8. Force Majeure.
       
       Except for the payment of monies when due, neither Party shall be liable for damage due to any cause beyond its control, including, acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, fire, sabotage, war, embargo or acts or omissions of the other Party caused by any of such events.
       
       
    9. No Solicitation.
       
       Company and Customer each agree not to solicit the employees of the other during the term of this Agreement and any extensions thereof, and for a period of one year after termination of this Agreement.
       
       
    10. No Competition.
        
        Customer understands and agrees that during the term of the Agreement, and for one year after the last date of Customer using the Application, Customer will not create, develop, sell, offer or distribute a competing service to the Company's Application or any service related thereto. A competing service is defined as a service that is a phone, address or email verification service marketed and provided to the general public. Customer understands and agrees that violation of this clause will be grounds for termination of the Agreement pursuant to “Termination” clause of this agreement. Company reserves the right to pursue equitable relief to stop the violation and competing activity, as well as any other relief permitted under the law.
        
        
    11. Notices.
        
        All notices required or permitted by this Agreement shall be in writing, addressed as set forth in the opening paragraph and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; or (ii) when delivered if delivered personally or sent by express courier service to the address set forth below. Either Party may change its address for the purpose of this paragraph by notice given pursuant to this paragraph.
        
        
    12. Entire Agreement.
        
        This Agreement, and any exhibits or schedules referred to in this Agreement, represent the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Except as otherwise provided herein, all modifications or amendments to this Agreement must be in a writing signed by both Parties, except as otherwise provided herein.
        
        
    13. Agreement in Counterparts.
        
        This Agreement may be signed by Customer and Company in counterparts, facsimile signatures, and electronic signatures via rightsignature.com shall have the same force and effect as an original signature.
        
        
15. Pricing
    
    Customer will be invoiced at the applicable pricing as set forth in the chart below. Email, Phone, and Address verification start at $0.01 per successful return. Customer will be billed at the end of the month for any usage incurred, and Customer hereby authorizes Company to charge the credit card supplied by Customer such amounts.
    
    Customer also has the option to purchase credits at any time. One credit is good to verify one email address, or one phone number, or one postal address. Credits expire one year from the date of purchase and are non-refundable. If one year has passed, or if Customer has used all purchased credits, then Customer will be charged for use at the prices set forth below.