End User License Agreement

Volante Technologies, Inc.
Amazon Web Services End User License Agreement

This END USER LICENSE AGREEMENT (the “Agreement”) is made and entered into as of the date you first access the Software as defined below, and is made by and between you (if you are accessing the Software on behalf of a company, that company) (the “Effective Date”) and Volante Technologies, Inc., a Delaware corporation (“Volante”). Read this carefully and do not access the Software if you do not agree. You accessing the Software will constitute your agreement with everything herein.

1. License

Volante licenses to you Volante’s financial message validator products (the “Software”) on the terms hereof for use by you in the United States for payments processing (the “License”). The License is non-transferable, non-exclusive, non-sublicensable, and for your internal use only.

(a) You may not copy, reverse engineer, reverse compile, disassemble, decompile, or transfer, the Software. Except as explicitly provided herein, no right or license whatsoever, either express or implied, is granted to you pursuant to this Agreement under any patent, patent application, copyright, trademark, design right, mask work, topography right, trade secret, or other proprietary or intellectual property right now or hereafter owned or controlled by Volante. Under no circumstances shall you sell, license, publish, display, offer, distribute, or otherwise transfer to a third party the Software or any copy thereof, in whole or in part.

(b) You agree and acknowledged that you are solely responsible for your connection to and use of your AWS account, including, but not limited to, networks, extranets and web sites, or for any unauthorized access and use of your AWS account. Volante is not responsible for any aspect of your service through your AWS account, including without limitation, availability, uptime, pricing, functionality, or security. You shall indemnify, defend and hold harmless Volante and its affiliates from any liability, loss, claim and expense, including reasonable attorneys’ fees, arising from your use of any service offering through your AWS account concerning or arising out of this Agreement or your use of the Software.

2. Support and Maintenance

Volante has no obligation to support, maintain, update, or otherwise make any changes to the Software. In the event that Volante notifies you of a new release of the Software, you agree to promptly access and use the newly released Software, and discontinue using the older version of the Software.

3. License Fee

You will pay Volante all charges assessed on the Effective Date and from time to time thereafter for this License.

4. Termination

This License will terminate on the earlier to occur of (i) the first anniversary of the Effective Date, and (ii) ten days following notice by either party that the License will terminate.

5. Proprietary Rights

You acknowledges that Volante owns all proprietary rights, including patent, copyright, trade secret and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications thereto. You (i) agree to tell Volante of any bugs, errors, desirable features, and functionality you observe using the Software, (ii) agree that all comments, suggestions, error notices, ideas, improvements and other information communicated by you to Volante concerning the Software shall, as between you and Volante, belong to Volante, and (iii) hereby assign to Volante any rights you may have or acquire in the Software, and acknowledge that suggestions made by you concerning the Software are works made for hire.

6. Warranties; Limitations of Liability

THE SOFTWARE IS LICENSED, “AS IS,” AND, “WITH ALL FAULTS,” AND VOLANTE MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE EXTENT THAT THE PARTIES MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM REQUIRED UNDER APPLICABLE LAW.

(a) You acknowledges that Volante makes no representations concerning the completeness, accuracy or operation of the Software. Volante assumes no liability whatsoever that may arise out of use of the Software.

(b) THE PROVISIONS OF THIS SECTION 6 SET FORTH YOUR SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND, INCLUDING WITHOUT LIMITATION, TRADE SECRET RIGHTS, COPYRIGHTS, MORAL RIGHTS AND PATENT RIGHTS, BUT DO NOT IMPOSE LIMITATIONS ON EITHER PARTY’S CLAIMS AGAINST THE OTHER PARTY FOR MISAPPROPRIATION OR INFRINGEMENT OF SUCH PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY.

(c) EXCEPT FOR LIABILITIES ARISING UNDER SECTION 6(b) OR FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL (A) EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS RESULTING FROM BUSINESS DISRUPTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) VOLANTE’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE GREATER OF (a) THE AMOUNT YOU PAY VOLANTE HEREUNDER, AND (II) $1,000.

(d) Except for infringement of either party’s claims against the other party for misappropriation or infringement of such party’s intellectual property rights by the other party, the parties agree that any claims hereunder must be brought within 6 months of when they were, or should have been using reasonable diligence, discovered.

7. General

You may not assign this Agreement. The failure of either party to enforce at any time or for any period of time the provisions hereof shall not be construed to be a waiver of such provisions or of the right of such party to enforce each and every such provision. The section headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and the 1980 UN Convention for the Sale of Goods shall have no application to this Agreement. For any action hereunder venue shall only be proper in the State or Federal court serving San Mateo County, California having subject matter jurisdiction and you waive any arguments of forum non conveniens. In any litigation, or court proceeding between the parties, the prevailing party shall be entitled to attorneys’ and other professional’s fees and all costs of proceedings incurred in enforcing this Agreement. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the other party hereto. Any amendment or waiver in accordance with this paragraph shall be binding upon you and Volante. This Agreement, and the attachments hereto, constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements existing between the parties hereto are expressly canceled. Each party agrees that use of pre-printed forms, such as purchase orders or order acknowledgements, is for convenience only. To the extent that any terms and conditions stated therein conflict with any provision of this Agreement, this Agreement shall control. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision, or such portion of such provision as may be necessary, shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be thereafter enforceable in accordance with its terms. The Parties hereto intend that no rules of construction be used in the interpretation of this agreement and that for all purposes hereunder both Parties be deemed joint authors hereof.