<h1>SmartBuilder Terms of Service</h1><!-- [et_pb_line_break_holder] --><p> <!-- [et_pb_line_break_holder] -->THANK YOU FOR CHOOSING A SMARTBUILDER FREE TRIAL OR PAID SUBSCRIPTION. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, COMPLETING A WRITTEN ORDER FORM, OR BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THE SOFTWARE OR USING THE SERVICES, YOU (hereafter, “You”, “Your” or “Customer”) AGREE THAT THESE TERMS OF SERVICE GOVERN YOUR USE AND ACCESS TO THE SMARTBUILDER SOFTWARE AND SERVICES AS SET FORTH ON THE APPLICABLE ORDER FORM AND TOGETHER WITH EACH ORDER FORM CONSTITUTE THE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE OR SERVICES.</p><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><p><!-- [et_pb_line_break_holder] -->This Agreement is effective between You and Strategic Technology Solutions, Inc., dba Smartbuilder (“Smartbuilder” or “Us” or “We”) as of the date You clicked your acceptance (<strong>the “Effective Date”</strong>) and may be amended only as set forth herein.</p> <!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><p>This Agreement was last updated on June 30, 2021.</p><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><p>The Software is LICENSED, NOT SOLD, only in accordance with the terms of this Agreement.</p><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --><li>1. <span style="text-decoration:underline">Definitions</span>. The definitions set forth in this Section apply to the following capitalized words and terms when used in this Agreement.</li> <!-- [et_pb_line_break_holder] --> <ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --> <li>1.1 <span class="JTMObl">“Authorized User”</span> means a single user, whether an author, reviewer, or other named user authorized by Customer to access the Software or Services. Authorized Users may be users with access for purposes of authoring or reviewing content in connection with the Software and Services (“Creator Users”), administering access to the Software or Service (“License Administrators’), or those who are granted permission by Customer to access the Software or Services as a learner (“Learner Users”).</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.2 <span class="JTMObl">“SmartBuilder Account Management Site”</span> means the web-based site provided by SmartBuilder to Authorized Users, which provides services such as SmartBuilder license and order management, user management, content hosting, and support.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.3 <span class="JTMObl">“License”</span> means the license granted by SmartBuilder to Customer under this Agreement related to use of the Software and Services.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.4 <span class="JTMObl">“License Administrator(s)”</span> means those Authorized Users who administer Customer’s use of the Software and Services, including by way of example, purchasing the subscription, executing the Order (defined below) creating Authorized User accounts and otherwise administering Customer’s use of the Service.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.5 <span class="JTMObl">“License Fee”</span> means the fee paid by Customer to license the Software and Services according to the number and type of licenses stated in the Order, in accordance with the period for which the Software and Services are licensed as set forth in the Order and in accordance with such other terms as set forth in the applicable Order.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.6 <span class="JTMObl">“Order(s)”</span> means SmartBuilder’s online order form or offline order form pursuant to which Customer purchases a subscription for the Software and/or Services (as identified on the applicable Order) from SmartBuilder, each specifying, among other things, the Software and/or Services licensed, the number of licenses and/or Authorized Users and type of Authorized Users contracted for, the applicable fees due, the billing period, and other charges and terms as set forth in the applicable Order. Each such Order is incorporated into and made a part of this Agreement by this reference.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.7 <span class="JTMObl">“Service(s)”</span> means the Software, Hosted Services and/or customer support services made available by SmartBuilder to You under the terms of the Order.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.8 <span class="JTMObl">“Software”</span> means the computer program or programs in object code form only as identified on the applicable Order, which SmartBuilder makes available to Customer either for down-load or as a hosted service (the “Hosted Services”) in accordance with the terms set forth in the applicable Order, and includes any of the following delivered by SmartBuilder to You (i) any proprietary scripting logic embedded within exported file formats or used in Our service; and (ii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with Our Software or made available by Us on Our website or within our Hosted Services for use with the Software (“SB Content Files”). The term “Software” includes any user manuals or other written documentation and explanatory materials and files (collectively “Documentation”) provided to You, as well as corrections, bug fixes, enhancements, or other modifications, including custom modifications, if applicable, to such computer programs and user manuals provided by SmartBuilder to You, to the extent not provided under separate terms.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>1.9 <span class="JTMObl">“Subscription”</span> means the monthly or annual subscription You agree to purchase under an Order with respect to the Software and Services.</li> </ul> <!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>2. <span style="text-decoration:underline">License</span>.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --> <li>2.1 <span style="text-decoration:underline">Grant of License</span>. Subject to Customer’s continuous compliance with this Agreement and payment of the applicable License Fees, SmartBuilder hereby grants Customer a non-exclusive, non-transferable, worldwide, limited license to install and make use of the Software and use the Services for Customer’s internal business purposes during the term of the Subscription (the “<span class="JTMObl">Subscription Term</span>”), only for the number and type of licenses as specified in the Order. All rights not expressly granted to you are reserved by SmartBuilder and its licensors.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.2 <span style="text-decoration:underline">Trials</span>. The Software, or portions of the Software may be provided on a trial basis or for evaluation purposes (the “<span class="JTMObl">Evaluation Software</span>”), under short term licenses (such as a thirty-day license term) set forth in an applicable Order (the “Trial Period”). EVALUATION SOFTWARE IS PROVIDED “AS IS”. ACCESS TO AND USE OF ANY OUTPUT FILES CREATED WITH SUCH EVALUATION SOFTWARE IS ENTIRELY AT CUSTOMER’S OWN RISK.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.3 <span style="text-decoration:underline">Active Licenses</span>. Customer shall pay a license fee for each license key according to the Order. Concurrent use of the Software and Services on a greater number of computers than the number of licenses for which Customer has paid the License Fee shall be deemed a violation of this Agreement. Authorized Users may activate licenses on different computers but may not use SmartBuilder with the same license key on more than one computer at a time.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.4 <span style="text-decoration:underline">Compliance with Licenses</span>. SmartBuilder may audit the number of active license keys from time to time throughout the term of this Agreement in order to verify that the appropriate License Fee has been paid or if an additional License Fee is due; provided that SmartBuilder’s access to the records of Customer will be limited to the minimum records necessary to confirm compliance.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.5 <span style="text-decoration:underline">SB Content Files</span>. Unless stated otherwise in the “Read-Me” files, Documentation, or other license(s) associated with the SB Content Files, Customer may use, display, modify, reproduce, and distribute the SB Content Files as incorporated within Customer’s own content. However, Customer may not distribute the SB Content Files on a stand-alone basis (i.e., in circumstances in which the SB Content Files constitute the primary value of the product being distributed), and Customer may not claim any trademark rights in the SB Content Files or derivative works thereof. Nothing stated herein shall affect the ownership of the Software as stated in Section 2.12.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.6 <span style="text-decoration:underline">Software and Services Access</span>. The Software and Services may facilitate access to content and other services or software provided or hosted by SmartBuilder (“Other Services”). To the extent such Other Services include separate license terms and/or fees, those separate license terms and fees shall apply to such Other Services. If such Other Services do not include separate license terms or fees, the terms of this Agreement, including but not limited to the licenses and license restrictions applicable to the Software, Services and Documentation and all other terms and conditions of this Agreement shall apply to such Other Services.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.7 <span style="text-decoration:underline">Limitations on License</span>. Customer shall not reproduce, print, disclose, or otherwise make the Software or Services available to any third party, by linkage or otherwise, in whole or in part, other than as provided under this Agreement. Customer shall not decompile, reverse assemble, or use any reverse engineering procedure or similar process for the purpose of deriving or appropriating or using the source code or source code listings of the Software, in whole or in part, in any form or media. Any permitted copy of the Software (including without limitation Documentation) that Customer makes must contain the same copyright and other proprietary notices that appear on or in the Software. Customer will not rent, lease, sell sublicense, assign or transfer its rights in the Software and Services (including without limitation, Software or Services obtained through a web download) or authorize any portion of the Software or Services to be copied onto another individual or legal entity’s computer except as expressly permitted herein. Customer will not use or offer the Software or Services to third parties on a service bureau basis. Customer shall not use its access to the Software or Services to build a product using similar ideas, features, functions or graphics or copy any ideas, features, functions or graphics of the Software or Services.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.8 <span style="text-decoration:underline">Restrictions</span>. You may use the Software and Services only for your internal business purposes and shall not: (i) use the Software or Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; or (ii) use or allow Authorized Users to send, store or post infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Software or Services; or (v) attempt to gain unauthorized access to the SmartBuilder systems or networks.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.9 <span style="text-decoration:underline">Your Responsibilities</span>. You are responsible for all activity occurring under your Authorized User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Software and Services, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify SmartBuilder immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SmartBuilder immediately and use reasonable efforts to stop immediately any copying or distribution of illegal Content that is known or suspected by you or your Authorized Users. You shall be solely responsible for all actions of the Authorized Users and their compliance with all terms of this Agreement.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.10 <span style="text-decoration:underline">Suspension of Access</span>. SmartBuilder shall have the right to limit or suspend Customer’s access to all or any part of the Software and Services with or without notice, for any conduct that SmartBuilder reasonably determines is in material violation of this Agreement or any applicable laws.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.11 <span style="text-decoration:underline">Privacy & Security; Disclosure</span>. SmartBuilder’s privacy and security policies may be viewed at <a href="http://www.smartbuilder.com/privacy/">http://www.smartbuilder.com/privacy/</a>. Smartbuilder reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from Smartbuilder from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preferences. Note that because part of the Service may involve a hosted, online application, Smartbuilder occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. Such notices shall be posted on the Services interface.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>2.12 <span style="text-decoration:underline">Intellectual Property Ownership.</span> <!-- [et_pb_line_break_holder] --> <ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --><li>(a) You retain all rights in and ownership of any data or information you input into the Software or Services and any content or materials that you create in connection with Your use of the Software and Services and in any modifications or enhancements you create in the foregoing (“Customer Content”). You, not SmartBuilder, shall have sole responsibility for the accuracy, quality, integrity, reliability and appropriateness, of all Customer Content and You shall (i) not transmit any Content that promotes or constitutes illegal activity, that contains obscene, pornographic, offensive, defamatory or illegal materials of any kind (text, graphics, images, photographs, etc.) that is adult-themed, contains sexual, violent or criminal material, that relates to the sale of tobacco or alcohol to individuals under the age of legal consumption, that relates to gambling, “get-rich-quick” or similar schemes, or firearms, fireworks or ammunition, that advocates violence or any act of intimidation, harassment, physical force or discrimination motivated by hostility to a person’s race, ethnic background, religious belief, sex, age, disability or sexual orientation, or otherwise violates any civil or criminal law or is otherwise illegal to transmit under law; (ii) not transmit any Content that is false or misleading and otherwise comply at all times with all laws related to advertising and marketing, (iii) not transmit Content that violates, infringes or misappropriates the rights of any third party, including but not limited to copyrights or trademarks of any third party; and (iv) comply at all times with all applicable laws.</li> <!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>(b) Excluding the Customer Content, SmartBuilder and its suppliers own and retain all title to and ownership of the Software and Services and all copies and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Software and Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or Services. Without limiting the foregoing, the structure, organization, and source code of the Software and Services are the valuable trade secrets and confidential information of SmartBuilder and its suppliers. The Software and Services are protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in the Software or Services. The SmartBuilder name, the SmartBuilder logo, and the product names associated with the Software and Services are trademarks of SmartBuilder or third parties, and no right or license is granted to use them. Nothing in this Agreement shall prohibit SmartBuilder in any manner from using, developing, marketing, licensing or otherwise disposing of the Software, or any derivative work thereof, anywhere in the world; nor shall anything herein be construed to grant to Customer any rights in or to any present or future products of SmartBuilder or in or to any intellectual property rights claimed by SmartBuilder relative to any of its present or future products.</li></ul><!-- [et_pb_line_break_holder] --></li></ul> <!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>3. <span style="text-decoration:underline">Charges, Fees, Payment</span></li><!-- [et_pb_line_break_holder] --><ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --> <li>3.1 <span style="text-decoration:underline">Charges and Payment of Fees</span>. You shall pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. In the case of Evaluation Software during the Trial Period, no fee shall be due unless you become a paid user under an Order. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all licenses ordered for the entire Subscription Term, whether or not such licenses are actively used. If You provide credit card information to Us, You authorize Us to charge such credit card for all purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 4 below. Such charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>3.2 <span style="text-decoration:underline">Taxes</span>. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>3.3 <span style="text-decoration:underline">Non-Payment and Suspension</span>. In addition to any other rights granted to SmartBuilder herein, SmartBuilder reserves the right to suspend or terminate this Agreement and your access to the Software and Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.</li><!-- [et_pb_line_break_holder] --> </ul><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>4. <span style="text-decoration:underline">Subscription Terms, Renewals and Termination.</span></li> <!-- [et_pb_line_break_holder] --> <ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --> <li>4.1 <span style="text-decoration:underline">Renewals</span>. Unless different terms are specified in an Order, each Subscription Term will automatically renew for successive periods equal to the expiring Subscription Term or one year (whichever is shorter) (each, a “Renewal Term”), unless either party gives the other notice of non-renewal at least five (5) days prior to the end of the then-applicable Subscription Term. For Orders purchased using a credit card, Customer may also provide notice of non-renewal by changing the ‘Auto Renewal’ setting to ‘No’ on the ‘Orders’ page of the SmartBuilder Account Management site. The per-unit pricing during any Renewal Term will remain the same as the applicable pricing in the prior term, unless We provide You notice of different pricing at least 30 days prior to the end of the current Renewal Term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. Unless otherwise expressly set forth in the Order, no refunds or credits for fees or payments will be provided to You if You terminate your Subscription prior to the end of your then-effective Subscription Term.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>4.2 <span style="text-decoration:underline">Termination</span>. In addition to each party’s right to terminate each Subscription at the end of the applicable Subscription Term, the following shall apply:</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>(a) Either party may terminate a Subscription if the other party commits a material breach of the terms of this Agreement, including non-payment, that has not been cured within thirty (30) days of written notice to such party,</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>(b) We may terminate this Agreement if we are required by law to terminate the Services because any provision of the Services or a portion of the Services is, or becomes, unlawful.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li><span style="text-decoration:underline">Effect of Termination</span>. Upon termination of this Agreement, the Software and Services will become inactive. Customer shall immediately stop using the Services and Software and remove all copies of the Software from Customer’s computers. To the extent that SmartBuilder has in its possession any of Your Content, and if You request return of such Content within 30 days after the effective date of such termination, SmartBuilder will make available to you a file of Your Customer Content. You agree and acknowledge that SmartBuilder has no obligation to retain Your Customer Content and may delete such Customer Content if it has not received a request for return within the 30-day notice period.</li><!-- [et_pb_line_break_holder] --> </ul></ul><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --><li>5. <span style="text-decoration:underline">Confidential Information</span>. Each party agrees to keep confidential all confidential information disclosed to it by the other party during the Subscription Term, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information is established to: (a) have been known publicly prior to its disclosure; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><br class=""><!-- [et_pb_line_break_holder] --><li>6. <span style="text-decoration:underline">Disclaimer of Warranties; Limitation of Liabilities</span>. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Software or Services.<!-- [et_pb_line_break_holder] --> EXCEPT AS TO THE FOREGOING, SMARTBUILDER MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF DESIGN, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR MERCHANTABILITY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. In the event that, as a matter of law, a party may not disclaim any such warranty, the scope and duration of such warranty shall be the minimum permitted under applicable law.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><br class=""><!-- [et_pb_line_break_holder] --><li>7. <span style="text-decoration:underline">Indemnity</span>.</li><!-- [et_pb_line_break_holder] --> <ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --> <li>7.1 <span style="text-decoration:underline">SmartBuilder Indemnity</span>. SmartBuilder shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Software as permitted hereunder infringes or misappropriates the copyright or trade secrete rights of a third party, and shall indemnify Customer for any damages finally awarded against Customer or agreed upon in settlement by SmartBuilder based upon such Claim; provided, that Customer (i) promptly gives SmartBuilder written notice of the Claim; (ii) gives SmartBuilder sole control of the defense and settlement of the Claim (provided that SmartBuilder may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (iii) provides to SmartBuilder all reasonable assistance requested by SmartBuilder, at SmartBuilder’s expense. If the Software or any portion thereof becomes, or in SmartBuilder’s opinion is likely to become, the subject of a Claim under this Section 7.1 SmartBuilder shall have the right, at its option and expense, either to (1) obtain a license permitting the continued use of the Software or such portion, (2) replace or modify such Software so that it becomes non-infringing, or (3) terminate Customer’s license to the Software and Services subject to the Claim and refund to Customer any pre-paid fees for Services not yet rendered as of the effective date of such termination.</li> <!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --> <li>7.2 <span style="text-decoration:underline">Customer Indemnity</span>. Customer shall defend SmartBuilder against any Claim made or brought against SmartBuilder by a third party based on Customer’s Content or Customer’s use of the Software or Services in violation of this Agreement, or any allegation that the Customer Content infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify SmartBuilder for any damages finally awarded against SmartBuilder or agreed upon in settlement by Customer arising from such Claims, and for reasonable attorney’s fees incurred by SmartBuilder in connection with any such Claims; provided, that SmartBuilder (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release SmartBuilder of all liability); and (iii) provides to Customer all reasonable assistance requested by Customer, at Customer’s expense.</li> <!-- [et_pb_line_break_holder] --> </ul><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --><li>8. <span style="text-decoration:underline">Limitation of Liability</span>. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SOFTWARE OR SERVICE. IN NO EVENT SHALL SMARTBUILDER’S AGGREGATE LIABILITY AS A RESULT OF THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><br class=""><!-- [et_pb_line_break_holder] --><li>9. <span style="text-decoration:underline">Miscellaneous</span>.</li><!-- [et_pb_line_break_holder] --> <ul class="JTMTermsList"><!-- [et_pb_line_break_holder] --><li>9.1 <span style="text-decoration:underline">Dispute Resolution</span>. This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software or Services shall be subject to the exclusive jurisdiction of the state and federal courts located in California.</li><!-- [et_pb_line_break_holder] --> <!-- [et_pb_line_break_holder] --><li>9.2 <span style="text-decoration:underline">General</span>. No text or information set forth on any other purchase order, preprinted form or document (other than an Order, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and SmartBuilder as a result of this Agreement or use of the Software or Services. The failure of SmartBuilder to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SmartBuilder in writing. This Agreement, together with any applicable Order, comprises the entire agreement between you and SmartBuilder with respect to the Software and Services and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. <strong>SmartBuilder may update and amend these Terms of Service from time to time in its sole discretion. We will notify Customer of modifications to these Terms by either sending a notice to the email address You provided to us and/or by posting a notice of modifications to these Terms in the applicable Services interface used by You, such as the Welcome page of the SmartBuilder Account Management site. We recommend that You check the Services interface on a regular basis to stay abreast of the most current version. Your continued use of the Software and Services for more than thirty (30) days after Our posting of the updated Terms of Service constitutes Your acceptance of the amended Agreement and revised Terms of Service.</strong> Should you disagree with the revised Terms of Service, You may cancel Your Subscription provided that you notify us of such cancellation within the 30-day period after the updated Terms were posted. In such case, We will provide you with a pro rata refund for any Fees pre-paid by You for the period from the effective date of termination through the end of the Subscription Term.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>9.3 <span style="text-decoration:underline">Local Laws and Export Control</span>. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software and Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Authorized Users to access or use the Service or Software in violation of any U.S. export embargo, prohibition or restriction.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>9.4 <span style="text-decoration:underline">Notices</span>. SmartBuilder may give notice by means of a general notice through the Services, electronic mail to your e-mail address on record in SmartBuilder’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in SmartBuilder’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to SmartBuilder (such notice shall be deemed given when received by SmartBuilder) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to SmartBuilder at the following address: SmartBuilder, 2244 Faraday Avenue, Carlsbad CA, 92008 addressed to the attention of: Chief Financial Officer.</li><!-- [et_pb_line_break_holder] --><!-- [et_pb_line_break_holder] --><li>9.5 <span style="text-decoration:underline">Assignment</span>. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by either party without the prior written approval of the non-assigning party. Notwithstanding the foregoing, SmartBuilder may assign this Agreement to any acquirer of all or of substantially all of its equity securities, assets or business relating to the subject matter of this Agreement or to a successor by merger. Any actual or proposed change in control of Customer that results or would result in a direct competitor of SmartBuilder directly or indirectly owning or controlling 50% or more of You shall entitle SmartBuilder to terminate this Agreement for cause immediately upon written notice. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.</li><!-- [et_pb_line_break_holder] --></ul> <!-- [et_pb_line_break_holder] --></ul><!-- [et_pb_line_break_holder] -->