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LIVE AGENT CHAT™ End User Software & Service License Agreement IMPORTANT—READ CAREFULLY This End User Software Service License Agreement (“EULA”) is a legal agreement between “you” (a person or business entity purchasing the Software or Services as described below) and Travel Sciences, Inc. (“Company”). The Software is the Live Agent Chat™ software delivered to you either in downloadable electronic media for installation on authorized servers or computing devices owned or controlled by you, or through the internet on an application service hosted basis (“Software”). Software also includes any updated versions, patches, modifications and improvements made by the Company from time to time which are released or delivered to you. A “Seat” means one authorized user operated instance of the Software. THE TERMS OF THIS EULA ALSO APPLIES TO ALL SOFTWARE USERS, INCLUDING TRIAL USERS. DURING YOUR FREE TRIAL PERIOD THE SOFTWARE IS PROVIDED FREE OF CHARGE FOR EVALUATION PURPOSES. AFTER THE CONCLUSION OF THE FREE TRIAL PERIOD YOU WILL BE CHARGED FOR AUTHORIZED ACCESS TO USE THE SOFTWARE AND YOU MUST CANCEL IF YOU WISH TO DISCONTINUE ACCESS AND NO LONGER BE CHARGED. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, OPERATING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, OPERATE, OR USE THE SOFTWARE. 1. LICENSE FEE/GRANT OF LICENSE. THE AMOUNT OF YOUR LICENSE FEES FOR THE SOFTWARE AND SERVICES IS SEAT BASED AND IS INDICATED IN YOUR PURCHASE ORDER (“PO”) ALONG WITH THE APPLICABLE LICENSE PERIOD. LICENSE FEES ARE PAYABLE IN ADVANCE OF THE PRESCRIBED LICENSE PERIOD YOUR PO WHEN SUBMITTED AND ACCEPTED WILL STATE THE APPLICABLE LICENSE FEE THAT IS PAYABLE. Subject to the payment the applicable license fees owed to Company for the number of Seats as set forth in your PO and your compliance with the terms and conditions of this EULA, Company grants to you, and you accept, a limited, non-exclusive, end user seat license (the "License"), to operate the compiled executable version of the Software solely for your personal business use, for a applicable period for which the licensee has been paid. YOU MAY TRANSFER OR ASSIGN THIS EULA WITHOUT OUR PRIOR WRITTEN CONSENT PROVIDED YOU PROVIDE THE COMPANY ADVANCE WRITTEN NOTICE OF ASSIGNMENT, PROVIDE THE LEGAL NAME AND ADDRESS OF THE ASSIGNEE, AND ASSIGNEE AGREES IN WRITING TO BE BOUND TO THE TERMS OF THIS EULA. 2. SERVICE TERM/TERMINATION. THERE IS NO MINIMUM SERVICE TERM. YOU CAN TERMINATE YOUR SOFTWARE LICENSE AND RELATED SERVICES AT ANY TIME, AND IT WILL BECOME EFFECTIVE AT THE END OF YOUR PAID LICENSE TERM THEN IN EFFECT. We may immediately suspend or terminate your service or Software License at any time in the event (i) you fail to pay your License Fees, (ii) the Software or service is being abused or resulting in abnormal levels of data transfer, usage or traffic, (iii) for any reason at any time at the end of a paid License period, (iv) the loss of third party vendor services, facilities or other equipment which is essential to the operation of the Software, or (v) our or your bankruptcy, business cessation, or other business interruption. 3. PAYMENT AUTHORIZATION/CREDIT CARDS. You authorize the Company to make charges against the credit card or debit card that you provide to us on a periodic basis for purposes of License renewal and associated payment of License Fees without obtaining your prior permission. You may request that we remove a credit card from our files and instruct that it be no longer authorized for use, and we will use good faith efforts to honor that request. You agree that in the event you submit any form of payment, such as a personal check or credit card, and you stop payment, cancel the payment or contest payment, or it is dishonored you are still liable for payment. You authorize the Company to report your payment history to credit bureaus and credit agencies. 4. RESERVATION OF RIGHTS AND OWNERSHIP. The Company reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. You acknowledge that Company or its suppliers own all (a) patents, copyrights, trade secrets, trademarks, trade names and other intellectual property and proprietary rights relating to or residing in the Software, and (b) software and programming code that supports the operation of this Software. The Software is licensed, not sold, even if it is pre-loaded or installed, or embedded in Authorized Hardware. 5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not modify, alter, reverse engineer, decompile, or disassemble the Software or otherwise attempt to derive the source code of the Software, or otherwise use or possess the Software for the purpose of copying, reproducing and recreating software which is similar in look and/or function . 6. NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend, sell, resell, partition, sublicense, transfer (including indirect transfers), or otherwise transfer the Software for value to other third parties or provide the Software as a service. 7. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or modifications of the Software that Company may provide or make available to you after the date you obtain your initial Software and provided that you are not in default hereunder, unless Company provides other terms along with the update, supplement, add-on component, or modification. Company reserves the right to discontinue any function or service provided to you or made available to you through the use of the Software. 8. UCITA. The interpretation and enforcement of this EULA, or any of its terms or provisions, shall not be governed by or construed in accordance with the Uniform Computer Information Transaction Act in 2000, as adopted by the National Conference of Commissioners on Uniform State laws (“UCITA”), if, as or when the same, or any portion thereof, may be adopted or enacted by the jurisdiction pursuant to whose governing substantive laws this EULA shall be interpreted and enforced. Without limiting or in any way diminishing the foregoing exclusion or inapplicability of UCITA, and only to the extent and solely for the purpose of perfecting or giving full legal effect to such exclusion, the parties agree that the substantive provisions of Section 904 of UCITA would apply to the extent the same were to be enacted by the governing jurisdiction and shall apply if necessary to give full effect to this exclusionary provision, if and when the same or a similar provision is enacted. 9. EXPORT CONTROL. You agree that you shall comply with all applicable export control, anti-corruption, anti-terrorism, anti-laundering or similar laws, rules, regulations and orders of the United States, including but not limited to, all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), Department of State, or other United States agency or authority, and not to export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to countries prohibited in the then current Supplement No. 1 to Part 770, or to embargoed personssuch as Specially Designated Terrorists (SDT), Foreign Terrorist Organizations (FTO), Specially Designated Global Terrorists (SDGT), and Specially Designated Narcotics Traffickers (SDNT), as provided in Part 744 of, the U.S. Export Administration Regulations (or any successor supplement or regulations)(“EAR”), or prohibited or unauthorized persons under the OFAC regulations (31 C.F.R. §500 et seq.), or barred entities or persons under International Traffic in Arms Regulations (ITAR) (22 C.F.R. §127.7). The SOFTWARE CONTAINS ENCRYPTION SOFTWARE AND THE EXPORT OF ANY SUCH ENCRYPTION SOFTWARE TO ANY DESTINATION OUTSIDE OF THE UNITED STATES IS PROHIBITED ABSENT A LICENSE OR OTHER APPLICABLE EXEMPTION UNDER PART 740 OF THE EXPORT ADMINISTRATION REGULATIONS. 10. GOVERNMENTAL RIGHTS AND USERS. United States Government users of the Software and any contractor thereof are licensed only under the terms of this License, which is our standard licensing agreement for commercial end use. You will identify the Software in all agreements with the United States Government or any contractor thereof, as follows: (a) For acquisition by or on behalf of civilian agencies, as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of the party's standard software license agreement, as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; (b) For acquisition by or on behalf of units of the Department of Defense ("DoD"), as necessary to obtain protection as "commercial computer software" and "commercial computer software documentation" in accordance with the terms of the party's standard software license agreement, as specified in 48 C.F.R. 227.7202 11. LIMITED SOFTWARE WARRANTY. EXCEPT AS EXPRESSLY PROVIDED BELOW, COMPANY MAKES NO, AND DISCLAIMS ALL, WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (EVEN IF COMPANY HAD BEEN INFORMED OF SUCH PURPOSE), NON-INFRINGEMENT, AND ITS ERROR-FREE OPERATION. Company warrants to You that the Software will perform its intended programmed function materially free from error when operated on properly functioning and routinely updated and maintained hardware that meets the minimum performance and operating requirements establish by the Company, and in the case of software delivered as a service via the internet, we warrant the Software will execute the programmed operations without material error. In the case of any defect which is subject to warranty coverage (“Warrantable Defect”), Company will make commercially reasonable efforts to repair the Warrantable Defect in a reasonable period of time at no cost to You (a “Repair”), In the event that Company determines that it is unable to make a Repair without incurring unreasonable cost or expense, as determined by Company in it sole discretion, Company may elect to make a refund to you in the amount of License Fee paid to and received by Company prorated to the amount of any remaining paid period (a “Refund”). You agree that Repair or a Refund are your sole and exclusive only remedies, and that you are not entitled to, and waive, any other rights to damages or compensation. WITHOUT LIMITING THE FOREGOING WE DISCLAIM ANY LIABILITY FOR SERVICE INTERRUPTIONS RESULTING FROM DENIAL OF SERVICE ATTACKS, THIRD PARTY MALICIOUS SOFTWARE ATTACKS OR UNAUTHORIZED SYSTEM ACCESS, COMMUNICATIONS FAILURES, POWER FAILURES, TRANSMISSION FAILURES, SERVER OR OTHER EQUIPMENT FAILURES OR OTHER OUTAGES WHICH MA OCCUR FROM TIME TO TIME. 12. INDEMNITY. You, for yourself and your employees, agents, officers, directors, members, shareholders, guests, invitees, users, customers or other parties with whom you deal or serve (“Related Parties”) , as the case may be, agree to hold harmless, defend and indemnify Company, Inc, and its employees, agents, officers and directors, shareholders and its authorized resellers and agents of and from any and all claims, causes of action, losses, damages, injuries, fines, and penalties which may arise out of the purchase, use or operation of the Software (“Claims and Damages”), including but not limited to, actual or alleged defects in the Software, the failure of the Software and any related services to operate or perform, or the interruption or disruption of the operation of the Software, the suitability of or deficiency in the Software with respect to any and all intended or foreseeable uses, interruptions or failures in network related communications transmission or carriage, power failures, hardware or part failures, malicious or unauthorized access to, or use of, the Software or other communications sent or received by, through or with the aid of the Software, any malicious code, software virus, or other intentional act of surveillance, disruption or interference rendered by a party other than Company, the improper use of the Software, any alleged or actual lack of training or defect or errors in training users of the Software products and services, or any errors, omissions or defects in any instructional, user or technical manuals or documentation furnished in connection with the Software and services, any alleged failure to adequately monitor the existence or occurrence of, or respond to or repair any failure or disruption, or failure, whether or not Company or its agents or representatives are notified of any such condition and been advised of the actual or potential risks, harms, injuries or adverse consequences which may arise from any delay or failure to respond or repair any such condition. To the extent you are a political subdivision, governmental agency, or quasi-governmental entity with sovereign immunity (“Government Entity”), you acknowledge, and hereby designate and appoint, Company, Inc., to the greatest extent permitted by law, your agent for the sole and limited purpose of providing interoperable communications facilities by and between you and other entities. 13. LIMITATION OF LIABILITY. IN NO CASE SHALL COMPANY BE LIABLE TO YOU, OR ANY OF ITS RELATED PARTIES FOR ANY “CLAIMS AND DAMAGES”, EXCEPT FOR THOSE OBLIGATIONS AND REMEDIES THAT ARE AVAILABLE UNDER APPLICABLE WARRANTIES FROM COMPANY, IF ANY, OR IN THE CASE OF WILLFUL AND INTENTIONAL MISCONDUCT BY COMPANY, OR ITS DIRECT EMPLOYEES ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE DIRECTION OF COMPANY. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND WITHOUT LIMITING THE EFFECT OF ANY OTHER PROVISION LIMITING LIABILITY OR DAMAGES, THE MAXIMUM LIABILITY THAT COMPANY, INC. SHALL HAVE WITH RESPECT TO ANY PARTY FOR ANY “CLAIMS AND DAMAGES” ARISING OUT ANY CLAIM OR CAUSE OF ACTION RELATING TO THE PURCHASE, USE OR OPERATION OF COMPANY PRODUCTS AND/OR SERVICES SHALL BE LIMITED TO THE LESSER OF $100.00 IN THE AGGREGATE OR THE PURCHASE PRICE PAID TO AND RECEIVED BY COMPANY IN RESPECT OF THE ACTUAL PRODUCTS AND/OR SERVICES SOLD OR USED THAT RELATE TO THE CONTROVERSY WITHIN THE PRECEDING MONTH. YOU ACKNOWLEDGE THAT THE FOREGOING LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE AND REFLECTS AN ALLOCATION OF RISK BETWEEN YOU AND US IN VIEW OF THE FEES THAT WE CHARGE TO YOU. 14. NOTICES. All notices required to be given herein shall, unless otherwise stated, be made in writing and sent to the other party by US Mail, postage pre-paid, return receipt requested (or by certified mail) or by a national overnight parcel carrier to the parties’ respective address below, or such other address as may be specified in writing in compliance with this provision, and any such notice shall be deemed received by the addressee three(3) days after such notice was deposited with the US Postal Service, or the date actually delivered by the overnight carrier. Notices to the parties shall be sent as follows: If to Company:
If to You: At the address specified in the Purchase Order or the last known address as reflected in Company’s billing records. 15. GOVERNING LAW. The substantive laws of the State of Connecticut shall govern the validity, construction, interpretation, and performance of this EULA. Each party irrevocably agrees that any legal action, suit or proceeding brought by it arising out of this EULA must be brought solely and exclusively in the appropriate state or federal court within the State of Connecticut. By accepting the License and this EULA, you irrevocably submit to the personal jurisdiction of any court located in the State of Connecticut without regard to the convenience of the forum.
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