Terpon Software Subscription Agreement v1.0                

SOFTWARE SUBSCRIPTION AGREEMENT

This Software Subscription Agreement (“Agreement”) is incorporated into an Order Form (defined below) by and between Terpon Corp., a corporation duly organized and existing under the laws of the State of Nevada with its principal place of business located at 3960 Howard Hughes Parkway, Suite 500, Las Vegas, NV 89169 (“Terpon”) and the Customer set forth on said Order Form.  This Agreement refers to each of the Customer and Terpon individually as a “Party” and jointly refers to them as the “Parties.

WHEREAS, Terpon offer subscription based software as a service products that provide real time virtual reality connectivity between a provider and the provider’s customer utilizing, among other things, the Equipment (as defined below);

WHEREAS, the Customer and each Authorized User desires to use the Service (as defined below) with the Equipment to connect with their customers in a virtual reality environment;

WHEREAS, the Customer desires to license the number of licenses set forth in an Order Form allowing Customer and each Authorized User of Customer to access the Service for the purposes set forth herein;

WHEREAS, subject to the terms and conditions set forth in this Agreement, Terpon desires to license the Service and provide the Equipment to Customer;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledge, Terpon and Customer hereby agree as follows:

  1. DEFINITIONS

  1. In addition to the other terms defined in this Agreement, the following terms shall have the following meanings.

  1. Acceptable Use Policy” shall mean the policy which may be amended by Terpon from time to time.

  1. "Authorized User(s)" means a natural person such as Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer or on Customer’s behalf.  

  1. Confidential Informationmeans any non-public knowledge or information directly or indirectly related to each Party’s business or businesses, Customer Data, the Service, product information, confidential or secret designs, manufacturing, distributing, marketing or selling processes, systems, procedures, plans, know-how, services or material, trade secrets, devices (whether or not patented or patentable), customer or supplier lists, price lists, financial information, manufacturing processes, business plans, prospects or opportunities, software and development and research work and other oral, visual, or written information that the Party designates as confidential or proprietary at the time of disclosure or that, under the circumstances surrounding disclosure, or by the nature of the information, would reasonably be understood by the other Party to be confidential or proprietary, including without limitation any of the foregoing that is Confidential Information of a Party’s customers, vendors, partners, licensors or other third parties with respect to which that Party has an obligation of confidentiality.  The Service contains trade secrets of Terpon and/or its third-party providers and are Confidential Information.  

  1. "Customer Data" means all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets that Customer or any Authorized User, creates, installs, uploads to or transfers in or through the Service or provides in the course of using the Service.

  1. Documentation” shall mean the written materials relating to the operation and use of the Service and Equipment including, but not limited to, user manuals, user guides, technical manuals, release notes, and online help files regarding use of the Products, and any other materials prepared in connection with any Software modification, correction, or enhancement, and shall include any updated versions of Documentation as may be provided by Terpon from time to time (1) in the course of providing the Service; (2) as part of an online tutorials or help files provided with the Service; or (3) in the course of providing web seminars in which Customer or Authorized Users enroll.

  1. Electronic Communication” shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Service.

  1. End User License Agreement” shall mean a standard end-user license agreement specified by Terpon that is to be accepted by an Authorized User as a condition to accessing or using the Service.

  1. Equipment” means hardware sold or leased by Terpon for use with the Service.

  1. Order Form” mean the electronic enrollment form set forth at https://terponmodels.com/get-started or any other enrollment form between Customer and Terpon where the Customer, among other things, subscribes to the Service in exchange for the Subscription Fee and orders Equipment.

  1. “Product” means the Software, Service, Equipment and Documentation.

  1. Service(s)” shall mean the Software and infrastructure in a hosted environment provided and maintained by Terpon to which Customer and each Authorized User is being granted access under this Agreement via a web site or another designated IP address.  

  1. Software” means Terpon’s proprietary software applications and user interfaces made available to Customer and each Authorized User by Terpon as part of the Service where such software may be placed on a server and also installed on the personal electronic device, such as a personal computer, tables and/or smartphone, to allow the the provision of the Service.  Software may contain Third Party Software licensed to Terpon.  

  1.  “Subscription Fee” means the monthly fee set forth in the Order Form to be paid by Customer for each Authorized User in order to access and use the Service during the Term.  

  1.  “Third Party Software” means application software products provided by third party vendors, including operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software.  Third Party Products are licensed to Terpon for incorporation and use in the hosted environment as part of the Service.

  1. GRANT OF LICENSE; RESTRICTIONS

  1. General License Grant.  Subject to the terms and conditions of this Agreement, Terpon grants to Customer during the Term the nontransferable, nonexclusive worldwide right to permit Customer and each Authorized User to (a) use the Service; and (b) use the Documentation and Equipment solely in connection with the Service, all solely for Customer’s own business operation to provide Customer’s services to customers of Customer.

  1. Authorized Users.  Customer acknowledges and agrees that the license granted under Section 2.1 is not a concurrent user license and that the rights granted to Customer in this Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Authorized Users that Customer authorizes to access the Service shall not exceed the number of licenses Customer has been granted, as set forth in the Order Form; (ii) licenses cannot be shared or used by more than one individual Authorized User but may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who is no longer permitted to access the Service; and (iii) each Authorized User must accept and agree to the End User License Agreement before accessing or using the Service.

  1. Use Restrictions. Customer shall not (i) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Service or the Documents available to any third party other than an Authorized User; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Equipment and/or Service, including without limitation the Software; (iii) create Internet "links" to the Service or "frame" or "mirror" any part of the Service, including any content contained in the Service, on any other server or device not expressly authorized by Terpon; (iv) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means any Product or any component thereof.

  1. Customer Responsibilities.  Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service. Terpon is not liable for and hereby disclaims any liability whatsoever for any damages associated with any unauthorized use of the Service.

  1. Beta Testing.  If the Order Form states that the Customer will perform beta testing of the Services and Equipment then the beta testing provisions (“Beta Testing T&C”) are hereby incorporated into this Agreement.  Terpon reserves the right to change the Beta Testing T&C from time to time.

  1. EQUIPMENT

  1. Equipment.  The Equipment, if any, purchased or leased by the Customer shall be delivered to the delivery address set forth on the Order Form via INTERCOMS 2010 FCA.  Unless otherwise specified elsewhere in this Agreement, the Customer is responsible for remitting all shipping costs to Terpon before Terpon provides the Equipment to the designated common carrier for delivery.  

  1. Payments.  The Customer shall pay Terpon for the Equipment in accordance with the Order Form.  Any installment or lease payments associated with Equipment are separate from, and in addition to, the Subscription Fee.  

  1. Equipment Return.  Unless otherwise set forth in the Order Form or this Agreement, if any Equipment is provided as part of the Service without additional payment from Customer, then Customer shall immediately return, at Customer’s expense, all Equipment to Terpon within ten (10) days of termination of this Agreement.

  1. Return Policy.  Any Equipment purchased, leased or provided under this Agreement shall be subject to Terpon’s return policy, which may be amended by Terpon from time to time without notice.

  1. FEES; PAYMENT

  1. Fees. In consideration for the access rights granted to Customer and its Authorized Users under this Agreement, Customer will pay to Terpon, without offset or deduction, the Subscription Fee.  All fees will be billed and paid in U.S. Dollars in accordance with the Order Form.  All late payments of undisputed fees will accrue interest at the rate of two percent (2%) per month or the maximum allowed under applicable law, whichever is lower. Notwithstanding anything to the contrary in this Agreement, all fees paid by Customer to Terpon pursuant to this Agreement and any Order Form are non-refundable.

  1. Disputed Fees. If Customer disputes any fees, taxes, or other charges billed by Terpon, Customer shall notify Terpon, in writing, of the disputed amount and provide any relevant information regarding the circumstances of the dispute, and shall also remit the disputed amount to Terpon.  Terpon shall acknowledge receipt of the dispute information in writing to Customer, which may be provided by Electronic Communication. The Parties agree to work cooperatively to resolve any such disputed amounts.  If it is determined that Customer owes and amount to Terpon, Customer shall remit such amount within seven (7) days of notice.  If it is determined that Customer is owed an amount due to such dispute, such amount will be credited to Customer’s next payment.      

  1. Taxes. Customer is responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Terpon’s income), and any related penalties and interest for the Service, or the delivery of related Equipment, if any. If Customer is tax exempt, it shall furnish Terpon with evidence of its tax-exempt status prior to placing an order for the Service.

  1. TERM AND TERMINATION

  1. Term. The term of this Agreement shall commence on the Terpon’s acceptance of the Order From and unless earlier terminated in accordance with this Section 5.1, shall continue in full force and effect until expiration of the latest period set forth on an Order Form (the “Term”).  Notwithstanding the foregoing, this Agreement shall remain in full force in effect until all Order Forms issued hereunder have terminated.

  1. Termination for Breach. Either Party may, at its option, terminate any this Agreement together with any or all Order Forms in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement together with all Order Forms will terminate in the event that such cure is not made within such thirty (30)-day period.

  1. Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, immediately terminate this Agreement and all Order Forms upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.

  1. Effect of Termination. Effect of Termination.  Upon termination or expiration of this Agreement: (i) all licenses granted to the Customer by this Agreement will terminate; (ii) the Customer will return to Terpon any Equipment, unless otherwise agreed between the Parties, at the Customer’s expense and using shipment methods designated by Terpon; and (iii) the Customer will immediately pay any amounts the Customer owes to Terpon as of the date of termination or expiration of this Agreement.  

  1. No Damages for Termination.  Neither Party will be liable to the other for damages of any kind, including incidental or consequential damages, on account of, based upon, or growing out of, the termination or expiration of this Agreement in accordance with its terms, including without limitation for reimbursement or damages for the loss of goodwill, prospective profits, or anticipated income, or on account of any expenditures, investments, leases, or commitments made by either Party, or for any other reason.  The Customer waives any right it may have to receive any compensation or reparations on termination or expiration of this Agreement under the law of any country.

  1. Survival. The rights and obligation of the Parties set forth in Sections 3, 4, 5, 8, 9, 11, 12, 13 and any provision by it nature is intended to survive shall survive the termination of this Agreement.

  1. Notices.  All notices submitted under this Section 5 may be delivered by Electronic Communication, provided such notice is promptly followed by a written notice that is mailed, hand delivered or express couriers to the address set forth in this this Agreement or the Order Form. 

  1. TERMS OF SERVICE

  1. Service Extensions or Updates.  Customer agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Service, and or any new service subsequently purchased by Customer pursuant to an Order From accepted by Terpon referencing this Agreement will be subject to this Agreement.

  1. Internet Access.  In order to use the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based Content.  Customer must also provide all equipment necessary to make (and maintain) such connection to the World Wide Web.

  1. Equipment.  Any Equipment provided to Customer under this Agreement may only be used with the Service and shall not be used in connection with any other product(s) an/or or service(s), unless expressly authorized by Terpon in writing (Electronic Communication sufficient).

  1. Email and Notices.  Customer agrees to provide Terpon with Customer’s e-mail address(es), and to accept Electronic Communications from Terpon at the e-mail address Customer specifies.  Notwithstanding any provision in the Agreement to the contrary, acknowledgement by an officer of Customer is not required with respect to e-mail communications pertaining to the Customer’s routine use of the Service, including without limitation communications relating to the support, maintenance, or the updating of the Service.  Customer further agrees the Terpon may provide any and all required notices including legal notices to Customer through either e-mail (or other electronic transmission), or by mail or express delivery service in accordance with Section 13.2.

  1. Passwords, Access, and Notification.  Customer may create an account for each Authorized User  up to the number of Authorized Users that corresponds to the number of licenses set forth in an Order Form.  Customer will provide and assign a unique password and user name to each Authorized User.  Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or user names with unauthorized users.  Customer will be responsible for the confidentiality and use of Customer’s and its Authorized Users passwords and user names.  Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account.  Terpon will act as though any Electronic Communications it receives under Customer’s password(s), user name(s), and/or account number will have been sent by Customer.  Customer agrees to notify Terpon if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number.  The foregoing shall also apply to any Order Forms submitted by the Customer for further Authorized User licenses.

  1. Compliance with Applicable Laws.  Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data.  Customer will ensure that any use of the Service by its Authorized Users is in accordance with the terms of this Agreement and applicable law.  Customer agree to notify Terpon immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Customer Data.  Customer acknowledges and agrees that the Service is subject to the U.S. Export Administration Laws and Regulations.  Customer agrees that no part of the Service or information obtained through use of the Service, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government.  Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact.  Customer certifies that neither Customer nor any Authorized User is on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List.  Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.  Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.  The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.  Customer is solely responsible for obtaining all licenses and permissions necessary related to the Customer Data, including without limitation licenses for any third-party software included in the Customer Data.

  1. Transmission of Data.  Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the Service.  Customer expressly consents to Terpon’s interception and storage of Electronic Communications and Customer Data.  Customer acknowledges and understands that i) Customer’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Terpon; ii) changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices; and iii) Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means.  Customer agrees that Terpon is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Terpon.

  1. Customer Data.  Terpon hereby acknowledges that it acquires no ownership right, title, or interest to any Customer Data that the Customer or any of its Authorized Users processes, stores, or transmits using the Service.  All Customer Data is subject to Terpon’s Privacy Policy which may be amended by Terpon from time to time.  The Customer hereby grants Terpon a non-exclusive, transferable license to use the Customer Data as necessary to provide the Customer with the Service.  The Customer agrees that it will ensure that any Authorized User also grants Terpon a non-exclusive, transferable license to use such party’s Customer Data as necessary to provide such party with the Service as a condition of such party’s use thereof.  Any Terpon employee or subcontractor that accesses Customer Data pursuant to this Section 6.8 will be bound by confidentiality restrictions at least as restrictive as those in this Agreement. Without the owner’s consent (which it may withhold in its sole discretion), the Customer Data may not be: (a) used by Terpon other than as permitted under this Agreement; or (b) individualized, sold, assigned, or leased by Terpon.  Terpon will have the right to monitor and analyze the Customer’s and any Authorized User’s use of the Service and to use the results of such monitoring to improve the Service during and after the Term.    

  1. Acceptable Use Policy.  Customer and each Authorized User shall comply with the Acceptable Use Policy which may be amended by Terpon from time to time.

  1. SERVICE SUSPENSION

  1. Suspension.  Terpon may at any time suspend the Customer’s access, including any Authorized User’s access, to the Service, in whole or in part, for any one or combination of the following reasons:

  1. If any payment is due but remains unpaid after thirty (3) days written notice (Electronic Communication sufficient) of such delinquency.  

  1. in order to comply with any contractual, statutory, and/or regulatory obligation, a request or order from law enforcement, or a competent judicial, governmental, supervisory or regulatory body;

  1. if Terpon has reasonable grounds to suspect that the Customer and/or its Authorized Users have acted or will act fraudulently, unlawfully, in a criminal way or in a way which could prejudice Terpon;

  1. in case the Customer or any Authorized User violates any contractual, legal, regulatory, statutory, or administrative obligation;

  1. in case of Force Majeure, as defined in Section 13.8 below;

  1. if Terpon is informed by the Customer the Service access credentials of any Authorized User has been compromised;

  1. if Terpon reasonably concludes that Customer’s use, or the use by any Authorized User, of the Service is causing or will likely cause harm to Terpon or others; or    

  1. where necessary for maintenance of the Service.

  1. Suspension Notice.  If reasonably practicable under the circumstances, Terpon will inform the Customer in advance of the suspension, stating the reason(s) for the suspension.  Terpon will deliver such notice to the Customer by Electronic Communication.  Without prejudice to Terpon’s right to directly inform any Authorized User (all of which Terpon expressly reserves), the Customer is primarily responsible for informing affected any Authorized User and will bear all liability arising from any default or delay in providing such information.

  1. Consequences of Suspension.  Terpon will not be liable to anyone for any loss or damage arising from or related suspension of access to the Service for any of the causes mentioned in this Agreement.  The suspension of access to the Service does not relieve the Customer of its obligation to remit the Subscription Fee for the Service Terpon provides before or after the suspension, or any amount otherwise due under this Agreement.

  1. INTELLECTUAL PROPERTY

  1. Terpon’s Intellectual Property.  The Service is licensed and not sold under this Agreement, notwithstanding any references herein to the “purchase,” “sale,” or “resale” of any Product or Service, or to any terms of similar import.  The Service and Terpon’s trademarks and/or service marks, registered or otherwise, are and will remain the sole and exclusive property of Terpon and its suppliers, if any, whether or not the Service is combined with any other products owned by anyone other than Terpon.  Terpon’s rights under this Section 8.1 include, but are not be limited to: (i) all intellectual property rights in the Software, Service and Equipment; and (ii) all modifications to, and derivative works based upon, the Products.  The Customer will not delete or in any manner alter the intellectual property rights notices of Terpon and its suppliers, if any, appearing on any Product as delivered to the Customer.  As a condition of the license rights granted to the Customer in this Agreement, the Customer will reproduce and display such notices on each copy of any Product that Customer may be permitted to make under this Agreement.

  1. Feedback.  Any suggestions, ideas or other feedback regarding the Product (“Feedback”) provided by the Customer or any Authorized User shall be owned by Terpon and Terpon will be free to use the Feedback in any manner and for any reason (including to incorporate the Feedback into future versions of Terpon’s products and services), with no obligation of confidentiality or compensation to the Customer and any Authorized User and without restriction of any kind.

  1. CONFIDENTIALITY

  1. Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

  1. Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a reasonable need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. The confidentiality obligations set forth in this Section 9.2 shall survive the termination of this Agreement for a period of three (3) years.

  1. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Section 9.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do

  1. Monitoring.  The Customer understands and acknowledges that Terpon may monitor the operation and usage of the Service through reporting functions in the Service.  Customer further agrees that Terpon may collect aggregated statistical data regarding Customer’s and its Authorized Users use of the Service. Unless required by law or court order, in no event will Terpon provide to third parties personally identifiable data regarding Customer, Authorized Users or customers of Customer.

  1. Data Controller.  The Customer agrees that, as between it and Terpon, the Customer is the data controller of the Customer Data and is solely responsible for compliance with all applicable laws, rules, and regulations pertaining to data controllers.

  1. WARRANTY

  1. Power and Authority.  Each party represents and warrants that it has sufficient right and authority to grant to the other party all licenses and rights granted under this Agreement.  The Customer further represents and warrants that it has obtained, and will obtain, all consents and approvals necessary to provide Customer Data to Terpon, and for Terpon to use the Customer  

  1. Internet Delays.  THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TERPON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

  1. Disclaimer.  TERPON DOES NOT REPRESENT THAT CUSTOMER’S USE OR ANY AUTHORIZED USER’S USE OF THE PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPED OR ERROR FREE, OR THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE PRODUCTS AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE PRODUCTS AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE PRODUCTS WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY TERPON OR THE OPERATION OF THE PRODUCTS WILL BE SECURE OR THAT TERPON AND ITS THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE.  THE WARRANTIES STATED IN SECTION 10.1 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TERPON.  THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS STATED IN SECTION 10.1 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND IS FOR COMMERCIAL USE ONLY.  CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSE.

  1. LIMITATION OF LIABILITY

  1. Limitation of Liability.  EXCEPT FOR THE BREACHES OF CONFIDENITALITY UNDER SECTION 9 AND CUSTOMER’S INDEMNITY OBLIGATION UNDER SECTION 12, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. TERPON’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO TERPON FOR THE PRODUCTS UNDER THE ORDER FORM THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN CUSTOMER’S FAVOR AGAINST TERPON SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CUSTOMER UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

  1. Third Party Content.  The Service may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Terpon is not responsible for any third-party Web sites or third-party content provided on or through the Service and you bear all risks associated with the access and use of such Web sites and third-party content, products and services.

  1. INDEMNITY

  1. Customer’s Indemnity.  Customer shall defend and indemnify Terpon and its affiliates, directors, officers, employees, agents, successors and assigns against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, “Losses”) incurred by arising out of or in connection with a claim by a third party (i) alleging that the Customer Data, or any use thereof, infringes the rights of, or has caused harm to, a third party; (ii)  Customer’s and each Authorized User’s use of the Service;  (iii)  arising out of Customer’s breach, including those of any Authorized User’s breach of the duties and obligations set forth in this Agreement; (iv) arising out of Customer’s or any Authorized User’s breach of the Acceptable Use Policy; or (v) any combination of the foregoing.

  1. Indemnification Procedures.  Terpon shall give prompt notice of any claim subject to Customer’s indemnity obligation under Section 12.1.  Terpon’s failure to provide notification, however, shall not affect the Customer’s indemnification obligations except to the extent that the failure to notify delays or prejudices Customer’s ability to defend the applicable claim.  Customer shall conduct the defense and shall have control of the litigation, and the Terpon shall reasonably cooperate in defending against the claim, at the Customer’s expense.  Terpon shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing.  Customer shall not make any settlement of the claim that results in any liability or imposes any obligation on Terpon without the prior written consent of the Terpon.  If Customer fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, Terpon shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of Customer, and Customer shall promptly reimburse the Terpon for all such costs and expenses.

  1. MISCELLANEOUS

  1. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.

  1. Independent Contractors. In making and performing this Agreement, Customer and Terpon act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.

  1. Notices. Unless otherwise set forth in this Agreement, all notices required by or relating to this Agreement will be in writing and will be sent by means of overnight delivery, to the Parties at their respective addresses set forth in the preamble to this Agreement or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.

  1. Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

  1. Assignment; Delegation. Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise), without the prior express written consent of the other party; provided, however, that Terpon may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Agreement, or in the event of its merger, consolidation, change in control or other similar transaction. Any permitted assignee shall assume all obligations of its assignor under this Agreement. Any purported assignment or transfer in violation of this Section 13.5 will be null, void and of no effect.

  1. No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns and any Authorized User. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

  1. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

  1. Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

  1. Severability. If any provision of this Agreement that is prohibited or unenforceable in any jurisdiction, in such jurisdiction, is ineffective to the extent of the prohibition or unenforceability, and any prohibition or unenforceability in any jurisdiction does not invalidate or render unenforceable the provision in any other jurisdiction. If any provision of this Agreement is held or deemed to be or is inoperative or unenforceable as applied in any particular case because it conflicts with any other provision or provisions of this Agreement or any law, statute, ordinance, rule, regulation, order, writ, decree or injunction, or for any other reason, the circumstances will not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provisions in this Agreement invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences, clauses, sections or subsections of this Agreement does not affect the remaining portions.  The parties further agree to replace such invalid, illegal or unenforceable provision with a valid, legal and enforceable provision that shall achieve, to the greatest extent possible, the economic, business and other purposes of such invalid, illegal or unenforceable provision.

  1. Governing Law and Jurisdiction.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada applicable to contracts made and to be performed entirely in the State of Nevada, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.  The Parties agree that the state and Federal courts residing in the State of Nevada shall have exclusive jurisdiction over any claim brought under this Agreement, and the Parties hereby consent to the personal jurisdiction of such courts.  

  1. Attorney’s fees.  In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all reasonable fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

  1. Headings.  All section headings in this Agreement are for convenience of reference only and are not part of this Agreement, and no construction or inference may be derived from them.

  1. Word Meanings. Words such as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The singular shall include the plural, and the masculine gender shall include the feminine and neuter, and vice versa, unless the context otherwise requires. The use of “and/or” shall be interpreted to include any single item or the combination of any two or more items referenced thereto.

  1. Customer Reference.  Customer agrees (i) that Terpon may identify you as a recipient of Service and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Terpon for promotional purposes.

REFUND POLICY

 

We don’t offer cash refunds , however only grant credits in the form of free membership in special circumstances , Exclusions: Refund policy doesn’t apply to trial memberships.