SaaS Agreement

FOCUS451, Inc. Software-as-a-Subscription (SaaS) License Agreement

Last updated: June 1st, 2024.

This FOCUS451 Enterprise SaaS License Agreement (together with the Online Order Form hereto, this “Agreement”), governs Client’s access and usage of the Products (as defined herein) licensed to Client by FOCUS451, Inc., a Delaware corporation located at 2445 Augustine Dr. Suite 150, Santa Clara, CA 95054, (“FOCUS451”). The terms herein are effective as of the date Client places its order from FOCUS451 (“Effective Date”).

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT;OR,FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1) Definitions.

a) “Active User” means a user established on the Software. Client has the ability to determine who is an Active User.

b) “Administrator” means Client’s designated contact person(s) responsible for managing Active User accounts and communicating any technical issues to FOCUS451.

c) “Affiliate” means a party that partially (at least 50%) or fully controls, is partially or fully controlled by, or is under partial (at least 50%) or full common control with, another party.

d) “Client Content” means any and all written matter, illustrations, documents, or other materials (i) authored by Client or (ii) licensed by Client from third parties.

e) “Client Data” means proprietary or personal data regarding Client or any of its Active Users under this Agreement.

f) “Company Content” means any and all written matter, illustrations, documents, materials, web-based courses, and/or instructor-led training authored by FOCUS451 or licensed by FOCUS451.

g) “Confidential Information” means non-public information of FOCUS451 or Client disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, including, but not limited to, any Product, algorithms, business plans, customer data, customer lists, customer names, design documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know‑how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets, the terms of this Agreement or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.

h) “Documentation” means any and all implementation materials or other printed or electronic materials provided by FOCUS451 to Client or made available by FOCUS451 to Client, subsequent to the Effective Date, which relate to Client’s use of the Software.

i) “Initial Term” means the initial duration of this Agreement as set forth herein.

j) “Intellectual Property Rights” means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.

k) “Products” means any and all Company Content, Documentation, Services, work product resulting from Services, and Software.

l) “Renewal Term” means a period following the Initial Term for which the Agreement has been renewed.

m) “Service” means any service rendered by FOCUS451 to Client, including, but not limited to: (i) licensing of the Software; (ii) hosting of the Software; (ii) licensing, hosting, delivery, and/or distribution of Company Content and/or Client Content; (iii) provision of training, customer and/or technical support for the Software.

n) “Software” means any and all of FOCUS451’s proprietary software offerings, including, without limitation, all updates, revisions, bug-fixes, upgrades, and enhancements thereto, as well as software that has been modified in any way by FOCUS451 at the request of Client. High-speed Internet service is required to access the Software effectively.

o) “Term” means the Initial Term plus all Renewal Terms.

2) FOCUS451’s Obligations. In accordance with the terms and conditions of the Agreement, FOCUS451 will: (i) make the Products available on a non-exclusive basis to Active Users via the Internet; (ii) maintain appropriate safeguards for protection of Client Data, including regular back-ups, security and incident response protocols, and infrastructure monitoring; and (iii) not access, modify, or disclose Client Data, except as compelled by law, to perform its obligations hereunder, to prevent or address service or technical issues, or if otherwise permitted by Client.

3) Support. FOCUS451 shall provide technical support to Client for any significant errors or defects which Administrator submits to FOCUS451. Client agrees to promptly provide FOCUS451 with sufficient documentation, data and assistance with respect to any reported errors, and to reasonably cooperate with FOCUS451, in order for FOCUS451 to comply with its obligations hereunder. In no event shall FOCUS451 be responsible or liable for any errors, bug or other problems caused by hardware or software not provided by FOCUS451.

4) Payment. In exchange for any and all Products provided by FOCUS451 to Client, as well as for the licensing of Software to Client, Client shall pay FOCUS451 the fees set forth on the Online Order Form and/or any subsequent amendment, addendum, Statement of Work, or work order agreed in writing.

5) License.

a) Grant. Subject to the terms and conditions of this Agreement, and solely for the Term, FOCUS451 hereby grants to Client a nonexclusive, non-sublicensable, non-transferable limited license to access and use the Software ordered and paid for by Client solely as set forth in Documentation and this Agreement, in the territory of the United States of America.

b) Restrictions. In no event shall Client or its employees, contractors, agents, or Affiliates use or deploy any of the Products: (i) in violation of applicable laws, rules or regulations; (ii) for commercial exploitation (except as otherwise permitted under this Agreement); or (iii) for any reason other than for the Products’ intended purpose as set forth in the Documentation and/or this Agreement. Further, Client shall not, and shall cause its employees, contractors, agents and Affiliates not to: (i) copy all or any portion of the Products (except for internal training purposes); (ii) modify, translate or create any derivative works based upon any of the Products; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from any of the Products or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv) make any of the Products available to any unauthorized third parties; (v) distribute, disclose, market, lease, assign, sublicense, pledge or otherwise transfer any of the Products; (vi) perform, or release the results of, benchmark tests or other comparisons of any of the Products with other software, services, or materials; (vii) permit any of the Products to be used for or in connection with processing data or other information on behalf of any third party; or (viii) use any of the Products other than in accordance with the terms and conditions of this Agreement.

c) Ownership of Client Data and Client Content. As between Client and FOCUS451, Client exclusively owns all rights, title and interest in and to all Client Data and Client Content. Client hereby grants to FOCUS451 a limited license to access and use Client Content and Client Data solely for the purpose of performing FOCUS451’s obligations hereunder.

d) Suggestions. FOCUS451 shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Products any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or its users relating to the operation of the Products.

e) Aggregated Data Use. FOCUS451 owns the aggregated, anonymized and statistical data (“Aggregated Data”) derived from the operation of the Software, and nothing herein shall be construed as prohibiting FOCUS451 from utilizing the Aggregated Data for business and/or operating purposes, provided that FOCUS451 does not share with any third party Aggregated Data which reveals the identity of Client, Client’s users, or Client’s Confidential Information.

6) Term. The Initial Term of this Agreement commences upon the Effective Date and expires thirty (30) days thereafter. The Agreement will automatically renew for additional, consecutive one-month periods (each, a “Renewal Term”), unless and until FOCUS451 or Client provides written notice to the other, at least thirty (30) days prior to the end of the Term, of its intent not to renew. “One-month periods” will be based on the same day of the calendar month on which the Initial Term expires. For example, if the Initial Term starts on May 17 and ends 30 days later on June 16, then the “one-month periods” for Renewal Term purposes will always be measured by the 16th of each calendar month.

7) Termination. Either party may terminate this Agreement at any time for any reason upon thirty (30) days’ notice, with such termination to be effective at the conclusion of the then-current Term. Immediately following the termination of this Agreement, Client shall cease using all Products and shall return to FOCUS451 all Documentation and Confidential Information provided or made available to Client (or, at FOCUS451’s option, certify in writing that all Documentation and Confidential Information (as well as all copies thereof) have been destroyed). FOCUS451 will maintain a copy of Client Data for a period of six (6) months following termination of the Agreement, after which time the Client Data will be destroyed.

8) Confidentiality. Each of the parties agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of FOCUS451 providing Services hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (ii) not to use any Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement. If either party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.

9) Intellectual Property. Except for the limited licenses expressly granted herein, as between the parties, FOCUS451 will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to all of the Products and all derivatives, modifications or enhancements to any of the Products. Client agrees to take any action reasonably requested by FOCUS451 to evidence, maintain, enforce or defend FOCUS451’s Intellectual Property Rights. Client shall not take any action to jeopardize, encumber, limit or interfere in any manner with FOCUS451’s or its licensors’ ownership of and rights with respect to any of the Products. All rights not expressly licensed to Client hereunder are hereby expressly reserved by FOCUS451. Notwithstanding the foregoing, Client retains all ownership rights to Client Data and Client Content.

10) Indemnification.

a) Indemnity by FOCUS451. FOCUS451 agrees to indemnify and hold harmless Client and its Affiliates and the respective officers, directors, employees, and agents of each (collectively, “Covered Client Parties”) from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) (collectively, “Damages”) incurred or suffered by Covered Client Parties, which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by Covered Client Parties’ authorized use of the Products. Notwithstanding the foregoing, FOCUS451 shall not be liable for any Damages, and the foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with: (i) Client Content; (ii) Client Data; (iii) unauthorized or negligent uses and/or alteration of the Products.

b) Indemnity by Client. Client agrees to indemnify, defend and hold harmless FOCUS451 and its Affiliates and the respective officers, directors, employees, and agents of each from and against any Damages which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by: (i) Client Data or (ii) Client Content. Notwithstanding the foregoing, FOCUS451 shall not be liable for any Damages, and the foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with FOCUS451’s use of Client Content or Client Data in violation of this Agreement.

c) Requirements for Obtaining Indemnification. To obtain indemnification, the party seeking indemnification (“Indemnitee”) must: (i) give written notice of any claim promptly to the other party (“Indemnitor”); (ii) give Indemnitor, at its option, sole control of the defense and settlement of such claim, provided that Indemnitor may not, without the prior consent of Indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases the Indemnitee of all liability; (iii) provide to Indemnitor all available information and assistance; and (iv) not compromise or settle such claim.

d) to Procure or Substitute. Should the Software or any part thereof become, or in FOCUS451’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party Intellectual Property Right, then FOCUS451 may, at its sole option and expense: (i) procure for Client the right to use and sublicense the infringing or potentially infringing item(s) of the Software free of any liability for infringement; or (ii) replace or modify the infringing or potentially infringing item(s) of the Software with a non-infringing substitute otherwise materially complying with the functionality of the replaced system. If (i) and (ii) are not reasonably available in FOCUS451’s reasonable opinion, FOCUS451 may terminate the Agreement.

e) Exclusive Indemnification Remedies. The indemnification and related remedies expressly provided for this Section shall be exclusive with respect to the rights of the parties and their indemnitees to seek indemnification and related remedies against the other party.

11) Disclaimers of Warranties.

a) General. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE PRODUCTS ARE PROVIDED “AS IS,” AND CLIENT’S USE OF THE PRODUCTS IS AT ITS OWN RISK. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, FOCUS451 DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER IMPLIED OR EXPRESS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, FOCUS451 DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR COMPLETELY SECURE. FOCUS451 DISCLAIMS ANY AND ALL RESPONSIBILITY FOR CLIENT CONTENT, THIRD-PARTY CONTENT, THIRD-PARTY LINKS AND WEBSITES, THIRD-PARTY SOFTWARE, AND ANY OTHER CONTENT NOT POSTED BY FOCUS451.

b) Internet. THE PRODUCTS ARE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXCEPT FOR THE FAILURE TO MAINTAIN THE SERVICE LEVEL AGREEMENT, FOCUS451 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

c) Signatures (e-sign). You understand that the use of electronic signatures (e-sign) is subject to local laws and there may be certain type of documents, agreements of transactions where electronic signatures may not be legally binding based on the local laws where you operate. You understand and agree that FOCUS451 has no control as to which documents or templates may be used by you while using our services and that FOCUS451 will not be held liable in case your jurisdiction decides to find the document or agreement legally non-binding because those documents or agreements cannot use electronic signatures and/or may require wet signatures.

12) Liability.

a) Mitigation of Damages. FOCUS451 and Client will each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Products.

b) . NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, INTERRUPTION OF BUSINESS, PROVIDING REPLACEMENT SOFTWARE OR SERVICES, OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOCUS451’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL SOFTWARE FEES PAID TO FOCUS451 BY CLIENT HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE OR TEN THOUSAND US DOLLARS ($10,000), WHICHEVER AMOUNT IS LESS. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES AGREED UPON BETWEEN CLIENT AND FOCUS451 ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13) Communications. Neither party shall issue any publicly disseminated statement using the name of the other party as a customer or provider without the other party’s consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, FOCUS451 may list Client’s name and logo alongside FOCUS451’s other clients on the FOCUS451 website and in marketing materials, unless and until Client revokes such permission.

14) Full Automatic Enforcement of Templates by Franchisor and Access To Information By Franchisor (Applicable to Franchisee Clients Only).

If your franchisor has subscribed to FOCUS451’s franchisor module and requires your franchise to assign templates to your franchise employees for compliance purposes (“Franchisor Employee Templates”) then you agree that:

i) All of the templates, whether active or not, and all future templates and/or updated/revised templates provided by the franchisor, generally located in the “Franchisor” library, will be APPLIED AUTOMATICALLY to your business locations operating under the particular franchise license. In this context, “Automatic Application of the template/s” means all such templates or updated/revised templates will be assigned to you, your FOCUS451 account admin/s and/or your employees without any manual intervention from you or your account admin.

ii) Your franchisor will have access to status information regarding compliance of those templates. In this context, “status information regarding compliance” means whether a particular template has been assigned, is in the process of being completed, is delinquent (marked as “not compliant”) or is completed (marked as “compliant”) (“Status Information”). Status Information does not include any identifying information about your franchise employee (name, Social Security Number, date of birth, etc.), the completed template itself or its contents. Status Information is shared with the franchisor for all Franchisor Templates and any other templates for which the field “Required for Franchisor Compliance” is selected in the template properties.

iii) If the franchisor has assigned business templates to your franchise (also referred as “Business Templates”) then in addition to Status Information about the Business Templates, the franchisor will have access to the entire completed template and its contents.

15) Miscellaneous Provisions.

a) Entire Agreement. This Agreement contains the entire understanding of the parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. This Agreement may be executed electronically.

b) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America, without regard to conflict of law principles.

c) Arbitration. FOCUS451 and Client (the “Parties”) agree that any and all disputes or claims between them, including but not limited to those arising out of or related to this Agreement, breach of or interpretation of this Agreement, misrepresentation, fraud or any other tort, and/or the relationship between the Parties, shall be submitted to private and binding arbitration. This agreement to arbitrate is governed by the Federal Arbitration Act. The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement or this arbitration provision, including, but not limited to, any claim that all or any part of this Agreement or the arbitration provision is void or voidable. The Parties agree that any and all disputes/claims shall be submitted to arbitration in an individual capacity only, and not as a representative of or member in any class action, representative action or joint/collective action. The arbitrator has no authority to consolidate more than one person’s claims, and has no authority to preside over any form of class, representative, or joint/collective proceeding. The Parties will mutually agree upon the arbitrator. If they cannot, they shall obtain a list of seven (7) arbitrators with knowledge and experience in the claims alleged from a neutral dispute resolution service, and strike names alternatively, starting with the defendant, until one arbitrator remains. The arbitration shall be held in Santa Clara County, California. Each side shall pay 50% of the fees and costs of the arbitration. The arbitrator shall allow reasonable discovery in their discretion and shall issue a brief written decision that includes the essential findings and conclusions upon which the decision or award is based. Only in the event the arbitrator has no jurisdiction over the claims, and/or to confirm, correct or vacate the award in accordance with CCP sections 1285 through 1287.6, the Parties agree to the exclusive jurisdiction of the superior court of the State of California, County of Santa Clara, and/or the federal district court, Northern District of California, and each of FOCUS451 and Client hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding or to confirm, correct or vacate the arbitrator’s decision or award. The parties agree the grounds for vacation of the award are limited solely to those stated in CCP section 1286.2 and for correction of the award are limited solely to those stated in CCP section 1286.6.

d) Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, acts or omissions of vendors or suppliers, equipment failures, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.

e) Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties.

f) Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.

g) No Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.

h) Assignment. Neither party may assign this Agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without the other party’s prior written consent; provided, however, either party, without the consent of the other party, may assign this Agreement to an Affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such party, where the responsibilities or obligations of the other party are not increased by such assignment and the rights and remedies available to the other party are not adversely affected by such assignment. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.

i) No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.

j) Responsibility for Third-Party Offerings. The Software may contain features capable of interoperating with third-party applications. To use such features, Client may be required to obtain access to such applications from a third-party provider. FOCUS451 shall not be responsible for Client’s access to, or operation of, third-party applications not offered or sold by FOCUS451 to Client.

k) Export Controls. Client understands that the use of the Products is subject to U.S. export controls and trade and economic sanctions laws. Client agrees to comply with all such applicable laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, and the trade and economic sanctions maintained by the Office of Foreign Assets Control of the U.S. Treasury Department.

l) . Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed.

m) Independent Contractors. Client and FOCUS451 are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Client and FOCUS451. Each party understands that they do not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.

n) Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.

o) Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.

Please print this Agreement for future reference.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY IT. IN CONNECTION WITH SUCH ACKNOWLEDGEMENT, YOU ELECT TO LICENSE AND PAY FOR THE SERVICE.