O3Spaces Workplace Subscription Agreement

This O3Spaces Workplace Subscription Agreement (“Agreement”) is dated and effective upon receipt of the payment associated with your order (“Effective Date”), between O3Spaces B.V., located at Hanzeweg 12d, 2803 MC, Gouda, the Netherlands (“O3Spaces”) and You and/or Your organization - (“Company”) and governs Company’s use of the O3Spaces Workplace Professional Edition Software (the “Software”).

THE PARTIES HEREBY AGREE:

1.0 Subscription Rights, Restrictions and Ownership

1.1 Grant to Company.
For the term of Company’s Subscription Period (defined below) and subject to Company’s payment of the Subscription Fee (defined below), O3Spaces B.V. (“O3Spaces”) grants Company: 1) the non-exclusive, non-transferable, non-sublicensable right to use the Software only for Company’s own internal use of the Software and limited to the number of Subscription Users for which Company has paid the applicable fee; and 2) the right to receive support pursuant to the Standard Support Services Plan or to purchase an Extended Support Services Plan or a Premium Support Services Plan, all as described in the O3Spaces “Support Services Plans”. A “Subscription User” means a full time employee, contractor or agent of the Company and its Affiliates authorized by Company to use the Software per the terms of this Agreement. “Initial Subscription User” means a Company employee, contractor or agent authorized to use the Software upon Company’s payment of the Subscription Fee. “Additional Subscription Users” means a full time employee, contractor or agent of the Company and its Affiliates authorized to use the Software after the Company has paid the Subscription Fee but prior to the termination or expiration of this Agreement. Collectively, all of the “Initial Subscription Users” and “Additional Subscription Users” comprise, and shall be referred to, as the “Subscription Users”. The Software shall be deemed accepted upon O3Spaces's shipment of the subscription key for the Software.

“Affiliate” means a company which is controlled, under common control or controlling the Company during the period of such control. For the purposes of this Agreement, “control” shall mean ownership, directly or indirectly, of more than 50% of the voting securities which vote for the election of the board of directors or other managing body. Company shall be responsible for any act or omission of those Subscription Users that are contractors and agents, Company’s Affiliates and of Company’s Affiliates' compliance with all of the terms of this Agreement. Any action or breach by any of Company’s contractors, agents or Affiliates shall be deemed an action or breach by company and Company will indemnify and hold O3Spaces harmless from any and all breaches of this Agreement by its contractors, agents and Affiliates. Company waives all of those defenses that Company may have as to why Company should not be liable for Company’s contractors’, agents’ or Affiliates' acts, omissions and noncompliance with this Agreement.

1.2 Restrictions.
Company shall not, directly or indirectly: (i) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (a) the Software, (b) any modified version or derivative work of the Software created for the Company, or (c) any software, either modified or not, for any purpose including timesharing or service bureau purposes; (ii) remove or alter any copyright, trademark or proprietary notice in the Software; (iii) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency; (iv) reverse engineer, decompile, disassemble, otherwise translate or modify any portion of the Software or License key; The Software may include modules that reports the number of authorized Subscription Users and permits O3Spaces the ability to monitor certain usage of the Software ("Critical Control Software") which is fundamental to the business of O3Spaces. Notwithstanding the terms of this Agreement, neither the Company nor the Subscription Users may modify any portion of the Critical Control Software. The violation of this prohibition shall be deemed a material breach of this Agreement and O3Spaces may immediately terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, during the Subscription Period the Company may continue to use the Software initially provided under this Agreement with the subscription key and using differing databases, web servers or operating systems than the database, web server or operating system initially selected by Company on installation of the Software at no charge. The number of licensed copies may increase, as long as the combined usage does not exceed the number of Subscription Users for which Company has paid. The foregoing is limited to operating systems, web servers or databases supported by O3Spaces as of the Effective Date and any additional operating systems, web servers or databases supported by O3Spaces in the future.

1.3 Proprietary Rights.
O3Spaces and its licensors shall own all right, title, and interest to the Software, technology, information, code or software provided to Company, including all portions, copies or modifications thereof. Except as expressly provided herein, no license of any kind is granted hereunder, whether by implication, estoppel, or otherwise.

1.4 Grant to O3Spaces.
During any term of this Agreement, Company grants to O3Spaces a non-transferable, non-exclusive, license to reproduce and display Company’s logos, trademarks, trade names and similar identifying material so that O3Spaces may refer to Company as a user of the Software should O3Spaces so desire, such as on the O3Spaces website, in press releases and in other marketing materials.

2.0 Fees and Payment

2.1 Subscription User Accounts.
Company shall designate a Subscription Administrator and notify O3Spaces of the identity and contact information for said Subscription Administrator. The Subscription Administrator may add Subscription Users to the Company's subscription for the Software by placing an order with O3Spaces. Company is responsible for all activity occurring under Company’s Subscription User’s accounts. Company shall notify O3Spaces immediately of any unauthorized use of any password, account, copying or distribution of the O3Spaces Technology. Subscription User accounts cannot be shared or used by more than one individual Subscription User but may be reassigned to new Subscription Users replacing former Subscription Users.

2.2 Subscription Fee.
Company shall pay to O3Spaces an amount specified on O3Spaces’s website for the number of Subscription Users that Company selects (“Subscription Fee”). Payment for the Subscription Fee shall be due and payable upon executing this Agreement. All fees paid to O3Spaces are non-refundable. Company will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any national, federal, state, provincial or local government entity on the transactions contemplated by this Agreement, excluding taxes based upon O3Spaces’s net income.

2.3 Additional Subscription Users Fee.
During any Term of this Agreement, Company shall pay quarterly to O3Spaces a fee for any subscriptions for Additional Subscription Users from the previous quarter (“Additional Subscription User Fee”). The Additional Subscription User Fee shall be assessed at the then current rate, and shall be due and payable on Company’s quarterly anniversary date from the Effective Date and will be assessed pro rata for the then-current calendar quarter. If invoiced by O3Spaces, payments for such invoices are due within 30 days.

2.4 Records Retention.
Company shall maintain accurate records necessary to verify the number of Subscription Users. Upon O3Spaces’s written request, Company shall provide O3Spaces with such records within ten (10) days. If Company has more Subscription Users than Company has paid for, Company shall immediately pay O3Spaces the applicable Additional Subscription User Fee in addition to any costs incurred by O3Spaces associated with reviewing such records.

3.0 Confidentiality

Company and O3Spaces agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”) for a period of two (2) years after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information or any Open Source version of the O3Spaces software as provided and licensed by O3Spaces. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.

4.0 Infringement and Disclaimer of Warranty

4.1 Infringement.
During any term of this Agreement, if any portion of the Software (except for third party software) is held by a court of competent jurisdiction to infringe any third party intellectual property rights and Company incurs a liability or expense as a result of such holding, then Company’s sole remedy shall be, and O3Spaces will, at its option: (i) obtain the right for Company to continue to use the Software consistent with this Agreement; (ii) modify the Software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component, or (iv) refund all of Company’s money paid under this Agreement during the prior twelve (12) months and all of Company’s rights and licenses under this Agreement shall automatically terminate.

4.2 As Is/Disclaimer of Warranty.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE AS PROVIDED BY O3SPACES IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE. O3SPACES DOES NOT WARRANT OR GUARANTEE THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED BE ERROR FREE, OR ACHIEVE ANY SPECIFIC RESULTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

5.0 Limitation of Liability

5.1 Force Majeure.
Except for the payment of fees, neither party shall be in breach of this Agreement due to failure of performance that arises out of causes beyond its reasonable control.

5.2 Disclaimer of Consequential Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL O3SPACES OR ANY THIRD PARTY WHO MAKES ITS SOFTWARE AVAILABLE IN CONJUNCTION WITH OR THROUGH O3SPACES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE SOFTWARE, OR SERVICES, OR DOCUMENTATION, OR SUCH THIRD PARTY SOFTWARE INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UPON WHICH THE CLAIM IS BASED. O3SPACES SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE SOFTWARE. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE AND SERVICES AND ALL THIRD PARTY SOFTWARE AND SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH O3SPACES, FROM INABILITY TO USE THE SOFTWARE, SERVICES OR DOCUMENTATION AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH O3SPACES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE, SERVICES, AND DOCUMENTATION AND ALL THIRD PARTY SOFTWARE AND SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH O3SPACES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).

5.3 Limitation of All Damages.
IN NO EVENT SHALL O3SPACES'S LIABILITY HEREUNDER FOR CLAIMS IN THE AGGREGATE, EXCEED THE AMOUNT THAT COMPANY PAID TO O3SPACES UNDER THIS GREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.

5.4 Failure of Essential Purpose.
The limitations set forth in this Section shall apply notwithstanding any failure of essential purpose of this Agreement or any limited remedy hereunder and to the fullest extent permitted by law.

6.0 Term and Termination

The initial term shall commence on the Effective Date of this Agreement and shall continue for a period of one (1) year unless a different term is specified by the parties at the time of purchase (the “Subscription Period”). Thereafter, the Agreement shall renew at the then current Subscription Fees and Additional Subscription User Fees set forth at www.O3Spaces.com for successive terms of one (1) year, unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the end of a term. Company shall remain obligated for all fees through the date of termination. Either party may terminate this Agreement prior to the end of a term if the other party materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty days following written notice of the breach. Company’s obligation to make a payment of any outstanding, unpaid fees and to keep Confidential Information confidential and the terms of Section 1.2 shall survive termination or expiration of this Agreement.

7.0 General

Company agrees and certifies that neither the Software nor any other technical data received from O3Spaces, nor the direct product thereof, will be re-exported except as authorized and as permitted by the laws and regulations of the Netherlands and/or the laws and regulations of the jurisdiction, (if other than the Netherlands) in which Company rightfully obtained the Software. Except as expressly provided herein, Company may not assign its rights or delegate its obligations under this Agreement, without the prior written consent of O3Spaces. This Agreement will be governed by and construed in accordance with the laws of the Netherlands applicable therein, excluding its conflicts of law provisions, and Company and O3Spaces agree to submit to the personal and exclusive jurisdiction of the courts located in the Netherlands. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. This Agreement, and the documents referenced in this Agreement, constitutes the entire agreement between Company and O3Spaces relating to its subject matter and all terms herein and supersedes all prior or contemporaneous agreements or understandings. This Agreement may be modified or changed only in writing by authorized representatives of Company and O3Spaces. Notices hereunder shall be in writing and addressed to Company at the address provided when purchasing this subscription, or, in the case of O3Spaces, when addressed to: O3Spaces B.V., Attn. Legal Counsel, Hanzeweg 12d, NL-2803 MC, Gouda, the Netherlands.