IO-TAHOE TERMS AND CONDITIONS AGREEMENT

By downloading, installing, or using Io-Tahoe Software (as defined herein) under Orders (as defined herein), you (“Customer”) accept and agree to the terms and conditions of this Io-Tahoe Terms and Conditions Agreement (“Agreement”) with Io-Tahoe, LLC (“Io-Tahoe”). Customer and Io-Tahoe are each referred to herein as a “Party” and collectively as the “Parties”. This Agreement cannot be changed without a mutually signed amendment. Any Orders placed under this version of the Agreement may only be modified by a mutually signed amendment.

1. DEFINITIONS

1.1Customer Data” shall have the meaning set forth in Section 5.1.

 

1.2Documentation” means information in written or electronic form distributed or otherwise made available generally to Io-Tahoe’s customers, licensees or subscribers (such as the user manual or system manual, read me files, installation instructions, specifications, and other published material) made available to Customer and/or delivered with the SaaS Software.

 

1.3Disclosing Party” shall have the meaning set forth in Section 5.1.

 

1.4Equipment” shall have the meaning set forth in Section 4.5.

 

1.5Export Control Laws” shall have the meaning set forth in Section 4.4.

 

1.6Fees” shall have the meaning set forth in Section 6.1.

 

1.7Initial Service Term” shall have the meaning set forth in Section 7.1.

 

1.8Io-Tahoe Software” means the computer software listed on the Order Form to which Io-Tahoe shall grant Customer access to and use of as part of the Subscription Services. The foregoing includes fixes, patches, and similar improvements related to the Subscription Services, together with Documentation.

 

1.9Order Form” means any written ordering document identifying the Subscription Services, the number of users, the Fees and Term, signed by the Parties and that references this Agreement. Unless otherwise agreed to by the Parties, each Order Form shall be uniquely numbered.

 

1.10Platform” means a unique algorithmic product that enables enterprises to discover more information about its data and data relationships, enabling organizations to understand how data flows throughout their enterprise and discovers previously unknown metadata and data relationships in order to better manage data, facilitate governance and create opportunities to leverage the firm’s data assets.

 

1.11Proprietary Information” means any and all private, confidential or other non-public proprietary information (whether or not a trade secret or otherwise embodied or contained in some tangible form) disclosed or made available from one Party to the other, including, without limitation, any information which, if kept secret, will provide Disclosing Party with an actual or potential economic advantage over others in the relevant trade or industry, such as, but not limited to: (i) supplier and customer lists, supplier and customer-specific information, user lists, vendor lists and content provider lists; (ii) planning data and selling and marketing strategies; (iii) product and process designs, formulas, processes, plans, drawings, concepts, techniques, systems, strategies, software programs and works of authorship; (iv) manufacturing and operating methods; (v) research and development data and materials, including those related to the research and development of products, materials or manufacturing and other processes; (vi) financial and accounting information, financial and accounting records, pricing information, projects, budgets, projections and forecasts; (vii) all industrial and intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, databases, algorithms, computer programs and other software, know-how, trade secrets, proprietary processes and formulae, inventions, trade dress, logos, designs and all documentation and media constituting, describing or relating to the above; (vii) employee identities and compensation arrangements; (viii) other information with respect to Disclosing Party which, given the totality of the circumstances, the Receiving Party has, or should have, reason to believe is proprietary, confidential, or competitively sensitive or could impair Disclosing Party’s ability to compete in the marketplace.

 

1.12Receiving Party” shall have the meaning set forth in Section 5.1.

 

1.13Representatives” shall have the meaning set forth in Section 5.3.

 

1.14Subscription Services” means Customer’s access to and use of, and Io-Tahoe’s provision of, the Io-Tahoe Software and other related support services listed on the Order Form and in accordance with the terms and conditions set forth in the Order Form.

 

1.15Taxes” means any and all taxes, duties, fees and other governmental charges in connection with the transactions described in this Agreement (including but not limited to sales or use tax imposed by the US or any state, local or non-US taxing jurisdiction, Goods and Services Tax (GST), Value Added Tax (VAT), the Foreign Account Tax Compliance Act (FACTA) or the Common Reporting Standard (CRS) and any intergovernmental agreements related to FACTA or CRS, and any other legally imposed transaction or withhold taxes), plus any penalties and interest imposed by the taxing jurisdiction; provided, however that “Taxes” shall not include any taxes based upon Io-Tahoe’s net income.

 

1.16Term” shall have the meaning set forth in Section 7.1.

 

1.17Usage Metrics” shall have the meaning set forth in Section 2.3.

2. GRANT AND SUBSCRIPTION SERVICES

2.1 Subject to the terms and conditions hereof, during the Term, Io-Tahoe grants to Customer a limited, non-exclusive, non-transferable, royalty-free right to access and use the Subscription Services listed on the Order Form for the duration of the Term for internal business purposes only. Io-Tahoe expressly reserves all rights in and to the Io-Tahoe Software and Documentation not expressly granted in this Agreement.

 

2.2 Customer may solely access and use the Subscription Services only for Customer’s own internal business purposes. In the event Customer desires to grant access and use of the Subscription Services to any third party, Customer shall so notify Io-Tahoe and the Parties will negotiate in good faith a separate reseller or similar agreement in advance for such access and use, subject to mutual agreement by the Parties.

 

2.3 Use of the Subscription Services is limited to the standard of measurement for determining permitted use and calculating Fees as set forth in the Order Form (collectively, the “Usage Metrics”). Increases to the Usage Metrics shall be purchased by Customer at the then-current price for the Subscription Services by way of a separate Order Form. The additional Usage Metrics shall be subject to all terms and conditions applicable to the pre-existing Usage Metrics and shall terminate at the same time as the pre-existing subscriptions terminated pursuant to this Agreement. To the extent Customer wants any increase the Usage Metrics for the Subscription Services on a particular Order Form, it shall promptly notify Io-Tahoe of the same and at least within fifteen (15) days such user(s) initiate access thereto.

 

2.4 Customer shall maintain complete and accurate records to permit Io-Tahoe to verify Customer’s compliance with this Agreement and provide Io-Thoe with such records within ten (10) days of Io-Tahoe’s request. Upon at least thirty (30) days prior written notice, Io-Tahoe may audit Customer’s use of the Io-Tahoe Software to assess whether Customer is in compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. Customer will provide Io-Tahoe with access to the relevant records and facilities. Notwithstanding the foregoing, Customer acknowledges and agrees that Io-Tahoe may monitor the Usage Metric limitations. If the actual number of uses exceeds the Usage Metrics specified in the applicable Order Form, Customer shall immediately purchase additional subscriptions to cover the excess usage based on Io-Tahoe’s then-current price list or as specified in the applicable Order Form, subject to a penalty charge of fifteen (15%) on such excess usage balance.

 

2.5 Each Order Form shall be subject to this Agreement. The terms and conditions of each Order Form shall be independent of, and shall have no impact upon, the provisions of any other Order Form. If the event of a conflict between this Agreement and any Order Form, the terms and conditions of this Agreement shall prevail, except to the extent that an Order Form mutually executed by authorized representatives of the Parties expressly identifies certain terms in this Agreement which are intended to be overridden by the Parties to the Order Form, giving express references to the specific section numbers to be overridden.

3. SUPPORT

3.1 Subject to the terms of this Agreement, Io-Tahoe will use commercially reasonable efforts to provide Customer the Subscription Services in accordance with the service level terms set forth in the applicable Order Form, if any.

 

3.2 Subject to the terms hereof, Io-Tahoe will provide Customer with reasonable technical support as part of the Subscription Services in accordance with the terms set forth in the applicable Order Form.

4. RESTRICTIONS AND RESPONSIBILITIES

4.1 Customer shall be responsible for compliance with this Agreement by Customer’s employees and authorized representatives. Customer shall not make the Subscription Services available to anyone other than its employees, agents, and authorized representatives.

 

4.2 The Subscription Services includes software hosted by Customer on Customer’s own hardware. Making copies of the Subscription Services is prohibited. Giving copies to another person, duplicating the Subscription Services by any other means, including electronic transmission, or providing third parties access to Subscription Services is also prohibited. Customer may make backup copies of the Subscription Services for security purposes and store them in a secure manner off-site. This backup copy is not to be used except in the case of loss of data or checking the data integrity and then only under the terms and conditions of this Agreement.

 

4.3 Customer will not, and will not permit any other person to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any Io-Tahoe Software, Documentation or data related to the Subscription Services; modify, translate, or create derivative works based on the Subscription Services or any Io-Tahoe Software (except to the extent expressly permitted by Io-Tahoe in writing or otherwise authorized within the Subscription Services).

 

4.4 Customer acknowledges that the Subscription Services may be subject to export controls under United States laws and regulations, including the Export Administration Regulations, 15 C.F.R. Parts 730-774, and may be subject to other applicable laws and regulations in other jurisdictions relating to export, re-export, import, transfer or other disposition of software and other technology (collectively, “Export Control Laws”).  From and after access and use of the Io-Tahoe Software through the Subscription Services, Customer shall comply with any and all applicable Export Control Laws applicable thereto.

 

4.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

5. CONFIDENTIALITY/PROPRIETARY RIGHTS

5.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose or otherwise make available to the Receiving Party Proprietary Information of the Disclosing Party. Proprietary Information of Io-Tahoe includes (without limitation) non-public information regarding features, functionality and performance of the Platform and/or Io-Tahoe Software, the Subscription Services or Io-Tahoe’s operations. Proprietary Information of Customer includes (without limitation) non-public data provided by Customers of Customer to Io-Tahoe to enable the provision of the Subscription Services (“Customer Data”).

 

5.2 Proprietary Information shall not include information that: (a) at the time of first disclosure by Disclosing Party to Receiving Party was already in the possession of Receiving Party, as shown by written records existing as such time; (b) is independently made available to Receiving Party on a non-confidential basis by an unrelated and independent third party whose disclosure does not constitute a breach of any duty of confidentiality owed to Disclosing Party; (c) is generally available to the public in a readily-available document at no fault of the Receiving Party; or (d) the Receiving Party can prove was independently developed by it without reference to or use of Disclosing Party’s Proprietary Information. The burden of proving any of the foregoing exceptions rests with the Party invoking such exception.

 

5.3 Except as permitted in this Agreement, Receiving Party shall not directly or indirectly use, disclose, disseminate, publish or otherwise reveal any Proprietary Information to any third party without the prior written consent of Disclosing Party, and shall not use the Proprietary Information in any way detrimental to Disclosing Party. Only full-time employees, officers, directors and other representatives of Receiving Party (collectively “Representatives”) who agree to be bound by the terms of this Agreement, and who need to review the Proprietary Information in connection with the Subscription Services, may access and view the Proprietary Information. Receiving Party will take all reasonable actions, by instruction, written agreement, or otherwise, to cause such Representatives to comply with the terms and conditions of this Agreement, and shall be liable for any and all breaches of this Agreement by any Representative. Receiving Party shall use the same methods of protecting any Proprietary Information of Disclosing Party as it uses to protect its own significant confidential information, and, in any event, no less than a reasonable degree of protection. In the event that Receiving Party is required by a court of competent jurisdiction to disclose Proprietary Information, Receiving Party shall first (unless expressly prohibited by law, regulation, and applicable authority) provide Disclosing Party with immediate notice and the opportunity to seek a protective order or to take appropriate action to preserve the confidential nature of the information. If Disclosing Party is unable to, or does not, obtain an order to preserve the confidential nature of the information, Receiving Party shall only disclose the minimum amount as is necessary to comply with its legal obligations as determined by Receiving Party’s attorney, and shall work with Disclosing Party to minimize the extent and effects of such disclosure. Each Party agrees to notify the other Party in writing of any misuse or misappropriation of Proprietary Information of the other Party that may come to its attention.

 

5.4 Upon conclusion of the Term or at Disclosing Party’s request, Receiving Party shall either return to Disclosing Party or destroy all Proprietary Information and any and all copies or reproductions thereof consistent with any of Disclosing Party’s instructions, and any documents or materials containing, or derived from, Proprietary Information, in any case, whether tangible or intangible, in Receiving Party’s possession or control. Receiving Party shall certify to its compliance with this Section in writing upon Disclosing Party’s request. For so long as the confidentiality obligations hereunder remain in effect, Customer shall not develop, design or build, directly or through a third party, any software product that serves a substantially similar purpose or directly competes with the products, concepts, systems or techniques included in or contemplated by the Proprietary Information provided by Io-Tahoe hereunder. Customer shall certify to his/her or its compliance with this Section in writing upon Io-Tahoe’s request. The Receiving Party’s obligations regarding Proprietary Information received under this Agreement shall continue in effect until the earlier to occur of: (i) five (5) years from the date of the last disclosure of Proprietary Information hereunder; and (ii) such time as all Proprietary Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of Receiving Party; provided, however, that each Party’s obligations with respect to the Disclosing Party’s trade secrets included in any Proprietary Information will survive until the later of: (a) the date such trade secret no longer constitutes a trade secret under applicable law through no fault or violation of Receiving Party, or (b) perpetually.

 

5.5 Customer shall own all right, title and interest in and to the Customer Data. Io-Tahoe shall own and retain all right, title and interest in and to (a) the Subscription Services, Io-Tahoe Software, and Platform, and all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing.

 

5.6 Notwithstanding anything to the contrary, Io-Tahoe shall have the right access, collect, modify, create derivative works from and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Customer hereby grants Io-Tahoe a non-exclusive, royalty-free, nontransferable, worldwide license (during and after the Term hereof) to (i) use Customer Data to improve and enhance the Subscription Services and for other development, diagnostic and corrective purposes in connection with the Subscription Services and other Io-Tahoe offerings, and (ii) disclose such Customer Data solely in aggregate or other de-identified form in connection with Io-Tahoe’s business.

6. PAYMENT OF FEES

6.1 Customer shall pay Io-Tahoe in full for and, in advance, the fees set forth in each Order Form for the Term for the Subscription Services (the “Fees”) (i) within thirty (30) calendar days from the start date of the Order Form and (2) within thirty (30) calendar days from the date of an invoice issued by Io-Tahoe in advance of any renewal period.

 

6.2 All Fees for Subscription Services after the Initial Service Term set forth in the applicable Order Form shall be subject to adjustment, beginning on the first day of each renewal term based upon the Consumer Price Index All-Urban Consumers, U.S. City Averages for All-Items with a 1982-1984 standard reference base published by the Bureau of Labor Statistics as revised from time to time, or any direct replacement of such index (“CPI”) by a maximum year-over-year five percent (5%) increase. In the event Io-Tahoe introduces new products for commercial availability, where the new products are part of a suite of products identified on the Order Form, Customer may acquire the new products at their published prices.

 

6.3 From time to time during this Agreement, Io-Tahoe may develop and release a major upgrade to the Subscription Services on modify or replace the Io-Tahoe Software with similar or improved offerings. For such upgrades, modifications or replacements, Customer and Io-Tahoe will, in good faith, renegotiate the Fees, consistent with the pricing offered to Io-Tahoe’s similarly situated customers. Customer may elect to pay the adjusted Fees or not have access to the additional features and/or functionality of the major upgrade. As used herein, a “major upgrade” means a material and significant enhancement.

 

6.4 If Customer believes that Io-Tahoe has billed Customer incorrectly, Customer must contact Io-Tahoe in writing no later than ten (10) days after the date of the first billing statement or invoice in which the error or problem appeared, and Customer agrees to work in good faith with Io-Tahoe to resolve the dispute. Inquiries should be directed to Io-Tahoe’s customer support department. In the event that Customer claims any amount is due from Io-Tahoe, as a credit or otherwise, and whether or not related to the Subscription Services performed by Io-Tahoe hereunder, Customer shall in all events pay all invoices under this Agreement properly when due and may not set off against such invoices any amounts claimed due.

 

6.5 Io-Tahoe may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Io-Tahoe within thirty (30) days after the mailing date of the invoice unless otherwise agreed to in an applicable Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Subscription Services. Customer shall be responsible for all Taxes associated with Subscription Services, and thus all Fees and all other amounts payable hereunder or pursuant to any addenda, amendments, Order Forms or other such related documents are exclusive of, and thus shall be without reduction for, any and all Taxes.

7. TERM AND TERMINATION

7.1 The term of this Agreement shall be the period stated on an Order Form, commencing on the start date stated on the Order Form (the “Initial Service Term”), and shall automatically renew for additional periods of the same duration as the Initial Service Term at the then-current Fees (unless otherwise stated in the Order Form) for each Io-Tahoe Software (collectively, the “Term”), unless either Party provides written notice to the other Party no less than ninety (90) days prior to the end of the Initial Service Term or the then current renewal term (as applicable) of its intent not to renew. Customer acknowledges and agrees that if Customer has received a discount in Fees during the Initial Service Term from the fees generally applicable to Io-Tahoe customers and if Customer notifies Io-Tahoe of intent not to renew the Agreement after the Initial Service Term for any reason, as compensation and not as a penalty, Io-Tahoe shall be entitled to invoice, and Customer agrees to pay, the fees for Subscription Services generally applicable to Io-Tahoe’s customers for the Initial Service Term, in addition to all other fees outstanding at the date of termination.

 

7.2 In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other Party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured thirty (30) days after the Party alleging such a material breach has notified the other Party hereto in writing, including sufficient detail of the alleged breach. Customer will pay in full for all Subscription Services rendered up to and including the effective termination date. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, Proprietary Information obligations, warranty disclaimers, and limitations of liability.

8. WARRANTY AND DISCLAIMER

Io-Tahoe shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Subscription Services in a manner which minimizes errors and interruptions in the Subscription Services and shall perform the Subscription Services in a professional and workmanlike manner. Subscription Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Io-Tahoe or by third-party providers, or because of other causes beyond Io-Tahoe’s reasonable control, but Io-Tahoe shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, IO-TAHOE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND IO-TAHOE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. INDEMNITY

9.1 Io-Tahoe shall hold Customer harmless from liability to third parties resulting from infringement by the Subscription Services of any United States patent or any copyright or misappropriation of any trade secret, provided Io-Tahoe is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Io-Tahoe will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Subscription Services (i) not supplied by Io-Tahoe, (ii) made in whole or in part in accordance with Customer or Customer specifications, (iii) that are modified after delivery by Io-Tahoe, (iv) combined with other products, services, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s or Customer’s use of the Subscription Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Subscription Services are held by a court of competent jurisdiction to be or are believed by Io-Tahoe to be infringing, Io-Tahoe may, at its option and expense (a) replace or modify the Subscription Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer or Customer a license to continue using the Subscription Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement (and any applicable Order Form) and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Subscription Services.

 

9.2 Customer shall hold Io-Tahoe harmless from liability resulting from Customer’s (and/or its Representatives’) breach of this Agreement; provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Customer will not be responsible for any settlement it does not approve in writing.

10. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, IO-TAHOE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IO-TAHOE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO IO-TAHOE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT IO-TAHOE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. FORCE MAJEURE

Except for payment obligations, neither Party will be liable to the other for any failure or delay in performing its obligations under this Agreement due to any cause beyond its reasonable control, including, without limitation, fire, flood, earthquake or other natural catastrophes, acts of war, terrorism, civil disobedience, governmental acts, laws or regulations, embargoes, labor strikes, failures of telecommunications or Internet services, or hackers. Each Party will use commercially reasonable efforts to give written notice to the other promptly after becoming aware of any condition or event causing any such excusable performance, failure or delay.

12. PUBLICITY

Either Io-Tahoe or Customer may make one or more press release(s) disclosing the Parties’ entry into this Agreement and to accurately describe this Agreement’s general subject matter, provided, however, that any press release must be reviewed and agreed to in advance by the Parties. A press release shall be deemed to be agreed by the other Party, if not objected within two (2) weeks after receipt of the respective draft by the other Party. To the extent Io-Tahoe wishes to acknowledge Customer in any other marketing materials or public disclosures, Io-Tahoe shall provide an opportunity for Customer to review and approve the language of such acknowledgement prior to the first use therein. However, no approval shall be needed for information which was already approved before. Subject to the foregoing, nothing contained in this Agreement will be construed as conferring any right to any Party to use in advertising, publicity or other promotional activities any name, trade name, trademark or other designation of any other Party (including a contraction, abbreviation or simulation of any of the foregoing) without the prior written consent of such other Party, such consent not to be unreasonably withheld, conditioned or delayed.

13. TAXES

Customer is required to pay all Taxes in connection with the transactions described in this Agreement, whether or not separately stated on any invoice or similar document. If Tax payments are required to be deducted or withheld from Fees or other amounts payable to Io-Tahoe pursuant to this Agreement, then the amount payable by Customer to Io-Tahoe shall be increased as necessary so that after all required deductions or withholdings have been made Io-Tahoe receives an amount equal to the sum it would have received had no such deductions or withholdings been made. In the event Io-Tahoe is required to pay directly any such Tax in connection with the transactions described in this Agreement, Customer shall reimburse Io-Tahoe in full within ten (10) business days following request. Should Customer be entitled to any exemption from or reduction of Taxes with respect to the transactions described in this Agreement, Customer shall provide Io-Tahoe within five (5) business days after the date hereof and at such other times as may be reasonably requested by Io-Tahoe a valid exemption certificate or other documentation acceptable to the authority imposing the Tax or reasonably requested by Io-Tahoe in order for such exemption from or reduction of such Taxes to be valid. Further, Customer and Io-Tahoe agree to cooperate in the event of any Tax audit to supply documentation, exemption certificates and other support as required by the auditing jurisdiction or reasonably requested by the other party hereto.

14. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Io-Tahoe’s prior written consent. Io-Tahoe may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement (together with all Exhibits and Order Forms hereto) is the complete and exclusive agreement of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Io-Tahoe in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received at the addresses set forth in the opening to this Agreement, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.

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