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End User License Agreement

RELIABLE SOFTWORKS, LLC

END USER LICENSE AND SERVICES AGREEMENT

READ THIS END USER LICENSE AND SERVICES AGREEMENT (THIS “Terms and Conditions”) BEFORE INSTALLING OR USING THE SOFTWARE (AS DEFINED BELOW).   BY INSTALLING, OR USING, THE SOFTWARE OR OTHERWISE EXPRESSING YOUR AGREEMENT TO THE TERMS CONTAINED HEREIN, YOU (AS END USER OR IF YOU ARE NOT THE END USER, AS A REPRESENTATIVE/AGENT AUTHORIZED TO BIND THE END USER) CONSENT TO BE BOUND BY THIS EULA.  IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED HEREIN, THEN (A) DO NOT INSTALL, OR USE, THE SOFTWARE AND DELETE ANY AND ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION AND (B) YOU MAY CONTACT RELIABLE SOFTWORKS, LLC (“RSW”) REGARDING LICENSE TERMS.

ARTICLE 1.0             PARTIES.

The parties to these Terms and Conditions are RSW and the customer (“END USER”) that originally purchases from RSW or an authorized RSW reseller (a “Reseller” and together with RSW, individually and collectively “RELIABLE”) (a) the subscription based license for use of the Software, and (b) the Hardware (as defined below) based upon a proposal offered and accepted by the END USER (the “Proposal” and together with the Terms and Conditions, this “Agreement”).

ARTICLE 2.0             LICENSE; HARDWARE; AND SERVICES.

2.1       Subscription Based License Grant.  In consideration of the monthly fees to be paid by END USER to RSW as described in the Proposal (each, a “Monthly Fee”), RSW grants END USER for the Term (as defined below), a non-exclusive, non-transferable, limited license to use the Software in machine-readable form, all subject to the terms and conditions of this Agreement (the “License”).  “Software” means (a) the computer software product of RSW as described in the Proposal and as delivered by RELIABLE to END USER hereunder, (b) the related associated media, printed materials, and “online” or electronic documentation (collectively, the “Documentation”), and (c) all updates, enhancements, and releases to any of the foregoing, actually delivered from time to time by RELIABLE to END USER pursuant to this Agreement.  The number of END USER’s individual authorized users of the Software shall be determined by the amount of the Monthly Fee to be paid by END USER.

2.2       HardwareOne copy of the Software is installed on a server as provided as part of the Hardware, and may be used only on the Hardware.  “Hardware” means one or more computer hardware components for use with the Software as described in the Proposal which END USER shall purchase from RELIABLE or such other third party as approved by RSW.

2.3       Third Party Software.  END USER acknowledges that the operation of the Software requires the use of certain prerequisite third party software, including a Macintosh 10.4 version (or later) or Windows XP SP 4 version (or later) based operating system and the most current versions of FileMaker Server and FileMaker Pro, all as described in the Proposal (the “Third Party Software”).  While certain Third Party Software may be pre-loaded on certain Hardware, END USER is responsible for purchasing and maintaining its own licenses for all Third Party Software.  Notwithstanding the foregoing, RELIABLE acknowledges that the cost of any Third Party Software pre-loaded on certain Hardware is included in the base system price as described in the Proposal.  END USER agrees that END USER’s use of Third Party Software shall be governed by the terms and conditions of the third party software license agreement applicable to such Third Party Software (each, a “Third Party Software License”), and END USER agrees to comply with, and be bound by, said terms and conditions.

2.4       Installation Services.  In consideration of the base system price to be paid by END USER to RSW as described in the Proposal, RELIABLE agrees to provide to END USER installation, implementation and initial training services for the Software and/or the Hardware, all as described in the Proposal  (collectively, the “Installation Services”).  The Customer acknowledges receipt from RSW of END USER’s preparation requirements for the Installation Services (the “END USER Requirements”).  END USER agrees to promptly notify RELIABLE if any of the END USER Requirements are not met before RELIABLE performs the Installation Services.  If RELIABLE performs any of the END USER Requirements, then END USER agrees to compensate RELIABLE on a time and materials basis at RELIABLE’s then current rates for RELIABLE’s performance of such END USER Requirements.

2.5       Support Services.  In consideration of the Monthly Fees and provided that END USER is not in breach of this Agreement, RELIABLE agrees to provide to END USER during the Term those maintenance and support services for the Software as described in Exhibit 1 attached hereto (the “Support Services”).  Any and all updates and point releases to the Software delivered in connection with any Support Services shall be subject to the terms and conditions of this Agreement.  END USER acknowledges and agrees that the Support Services will be provided for RSW’s then current version of the Software.  For the avoidance of doubt, the Support Services do not apply to any Third Party Software.  Furthermore, END USER agrees that the Support Services do not include the servicing, replacement or repair of the Hardware.  END USER agrees to cooperate with RELIABLE to the extent reasonably necessary and required by RELIABLE in order for RELIABLE to perform the Support Services.  Such assistance will include, but will not be limited to, providing RELIABLE with access to END USER’s site(s), computers, equipment and necessary information and documentation in order to permit RELIABLE to accurately reproduce any problem reported.

2.6       Additional ServicesFrom time to time after the Installation Services, END USER may request additional professional services from RELIABLE (e.g., additional training or specific modifications or enhancements of the Software that are not yet available in the most current version of the Software) (the “Additional Services” and together with the Installation Services and the Support Services, the “Services”).  RELIABLE, in RSW’s sole discretion, may agree to provide such Additional Services as mutually agreed upon by RSW and END USER and for such price as mutually agreed upon by RSW and END USER.

2.7       Automatic Payment of Monthly Fees.  END USER hereby authorizes RSW, on each due date of a Monthly Fee, to either (a) automatically withdraw the amount of such Monthly Fee from END USER’s bank checking account or (b) automatically charge END USER’s credit card for the amount of such Monthly Fee based upon the bank or credit card information as provided by END USER to RSW from time to time (the “Payment Information”).  END USER agrees to provide to RSW true, current, accurate and complete Payment Information.  END USER agrees that RSW does not assume any responsibility for timeliness, deletion or missed delivery of payments of Monthly Fees.  END USER acknowledge and agrees that RSW may increase the Monthly Fees for any Renewal Term (as defined below) by providing notice to END USER at least one hundred twenty (120) days prior to the expiration of the then current Term.

2.8       Travel and Other Expenses.  In addition to the fees to be paid to RSW for providing Services, END USER shall also pay all of RELIABLE’s transportation, meals, lodging and other pre-approved out-of-pocket expenses incurred by RELIABLE in connection with the performance of the Services.

2.9       SubcontractingRELIABLE shall at all times be entitled, and reserves the right, to subcontract a third party to perform all or any portion of the Services.  It is understood, however, that RELIABLE’s obligation to provide the Services shall not be diminished by its right to subcontract such Services.

ARTICLE 3.0             SCOPE OF RIGHTS.

3.1       Limitations on Use.  END USER may use the Software at END USER’s facility for END USER’s own internal business operations only.  END USER shall not license, distribute, resell or otherwise permit the use of the Software or the Hardware except as expressly provided in this Agreement.  END USER is not authorized to use the Software or the Hardware to provide services to any third party, or to provide access to, or permit use of, the Software or the Hardware by any third party.  In addition, during the Term, END USER may not load any software onto the Hardware, reconfigure the Hardware, or otherwise modify the Hardware.

3.2       Limitations on CopiesExcept as expressly provided in this Agreement, END USER may not copy or modify the Software.  During the term of this Agreement, and subject to the inclusion of any and all copyright and proprietary notices appearing in, or on, the Software, including the Documentation, END USER may make a reasonable number of copies of the Software, including the Documentation, licensed hereunder, but only as may be necessary for archival, back-up, or disaster recovery purposes. 

3.3       Export.  END USER may only use the Software, including the Documentation, in the United States or in any country that is a party to the Berne Copyright Convention; subject, however, to compliance with applicable United States export laws and regulations.  END USER agrees to, at END USER’s expense, comply with the requirements of applicable export and import laws, and restrictions and regulations of the United States and foreign countries with respect to END USER’s use of the Software and the Hardware (including, without limitation, laws and regulations pertaining to (a) exports or imports of software and related property, (b) use or remote use of software and related property, and (c) registration of this Agreement).  END USER agrees not to use, export, re-export or import the Software or the Hardware in violation of any such restrictions, laws or regulations.  END USER shall indemnify and hold harmless RELIABLE and its affiliates from, and against, all actions, claims, and proceedings brought, or asserted against, and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) suffered or incurred, by RELIABLE and its affiliates arising out of any violation or alleged violation by END USER of any such laws or regulations. 

ARTICLE 4.0             PROPRIETARY PROTECTION OF THE SOFTWARE.

4.1       Ownership of the Software.  RSW has sole and exclusive ownership of all right, title, and interest in, and to, the Software, including the Documentation, and all modifications and enhancements thereto (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted by RSW.  This Agreement does not provide END USER with title or ownership of the Software, but only a right of limited use under the terms of this Agreement.  END USER must keep the Software, including the Documentation, free and clear of all claims, liens, and encumbrances and ensure that no third party claims created by END USER will interfere with the ownership interest of RSW. 

4.2       Intellectual Property Ownership.  All patents, trademarks, trade names, copyrights, trade secrets, designs and other intellectual property relating to the Software, including the Documentation, shall be and remain the property of RSW.  END USER shall have no right to enhance, modify or prepare derivative works of the Software, including the Documentation.  END USER shall not remove or obscure any copyright, patent, trademark, trade secret, restricted or limited rights, export restriction or similar notice affixed to the Software or the Hardware and shall include all such notices on any permitted copies of the Software, including the Documentation.

4.3       Prohibition on Reverse EngineeringEND USER shall not take any action inconsistent with RSW’s title and ownership of the Software, including the Documentation.  END USER shall not have the right to disassemble, decompile or otherwise reverse engineer the Software, or any part thereof. 

4.4       Equitable Relief.  END USER acknowledges and agrees that, in the event of END USER's breach of any of the foregoing provisions of this Article, RSW may not have an adequate remedy in money or damages and shall be entitled to obtain, without the need to post any bond or other security, an injunction against such breach from any court of competent jurisdiction immediately upon request.  RSW’s right to obtain injunctive relief shall not limit its right to seek further remedies.

ARTICLE 5.0             TERM AND TERMINATION.

5.1       Term and Termination.

            (a)        The License of the Software hereunder shall become effective upon delivery of the Software to END USER, by download, on a physical media, or otherwise, and shall continue in effect thereafter for an initial term as set forth in the Proposal (the “Initial Term”), unless terminated sooner in accordance with the provisions of this Agreement.  Upon the expiration of the Initial Term, the License shall automatically renew for successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then current Term.

            (b)        Either party may terminate this Agreement if the other party has materially breached its obligations under this Agreement and such party has not cured such breach within thirty (30) days of being notified in writing thereof by the other party.  Notwithstanding the foregoing, RSW may terminate immediately without notice this Agreement upon any failure by END USER to pay any fee due to RSW, including a Monthly Fee, within thirty (30) days of when due.

5.2       Effect of Termination.  Upon termination of this Agreement, all rights and licenses granted to END USER, and all obligations of RELIABLE, pursuant to this Agreement will terminate and all such rights associated with the License shall revert to RSW.  Promptly upon termination of this Agreement for any reason, END USER must (a) return, or certify the destruction of, all copies of the Software, including the Documentation, in END USER’s possession (whether modified or unmodified), and all other materials pertaining to the Software (including all copies thereof), and (b) return to RELIABLE the Hardware.  ANY AND ALL FEES PAID TO RELIABLE ARE NON-REFUNDABLE. 

5.3       Survival.  Any obligation of END USER to pay fees or any other amounts to RELIABLE shall survive termination of the License.  Additionally, the following provisions shall survive termination of the License and remain in full force and effect in accordance with their terms:  Article 4.0, Sections 3.3, 5.2 and 5.3 and Articles 6.0, 7.0 and 8.0.

ARTICLE 6.0             LIMITED WARRANTY

6.1       Limited Warranty. 

            (a)        Software.

                        (i)         RSW warrants exclusively to, and for the benefit of, END USER that the Software as installed on the Hardware shall conform in all material respects with the functional specifications set forth in the Documentation.  RELIABLE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE.   If, within sixty (60) days after RSW is notified of a defect (the “Repair Period”), RSW is unable to modify the defective Software in such a way as to correct said defect, then, unless RSW is able to provide END USER with another method of achieving the desired effect, END USER may petition RSW to terminate the Agreement and request the return authorization of the Hardware by giving written notice thereof to RSW within ten (10) days following the end of the Repair Period.  In such event, RSW may, subject to END USER’s compliance with its obligations under Section 5.2, authorize the appropriate refund, directly or through the participating Reseller, if any, of (i) any purchase price paid by END USER for the Hardware calculated based on a straight-line amortization over a three (3) year period from the date of delivery of the Hardware to END USER provided that the Hardware is returned to RSW; less (ii) any amounts (including, but not limited to, reimbursable travel expenses) then owed or owing by END USER to RELIABLE.

                        (ii)        RELIABLE shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Software if (A) END USER has made any unauthorized changes whatsoever to the Software or the Hardware (including any violation of the restrictions set forth in this Agreement), (B) the Software or the Hardware has been misused or damaged in any respect (including by water damage, power surge, or other cause outside of RELIABLE’s reasonable control), or (C) END USER has not reported to RSW the existence and nature of such nonconformity or defect promptly upon discovery thereof.

            (b)        Hardware.  Hardware is covered only by a warranty, if any, as may be provided by the manufacturer of such Hardware (each, “Manufacturer’s Warranty”).  To the extent that RELIABLE is able to do so, RELIABLE will pass-through to END USER any applicable Manufacturer’s Warranty.

            (c)        Services.  RSW warrants that all Services provided hereunder shall be performed in a professional manner in accordance with industry standards for like services.  To the extent such standards are not met for any Services, then RSW shall re-perform such Services.

6.2       Sole Remedy.  The foregoing provisions of Section 6.1 constitute END USER’s sole and exclusive remedies, and RELIABLE’s entire liability, with respect to any breach or failure of the limited warranties set forth in Section 6.1 and with respect to any other failure of performance or operation of the Software or the Hardware or the providing of Services. 

6.3       Disclaimer of WarrantiesEXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE, RELIABLE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE HARDWARE AND THE SERVICES, INCLUDING CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

6.4       Limitation of Liability.  The cumulative liability of RELIABLE to END USER for all claims related to the Software, the Hardware, the services and this AGREEMENT, including any cause of action in contract, tort, or strict liability, shall not exceed the total amount of the monthly fees paid to RELIABLE DURING the TWELVE (12) MONTHS prior to the initial actions giving rise to such claim.  This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.

6.5       No Consequential Damages.  except for indemnification obligations pursuant to article 7.0 below, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, In no event shall RELIABLE be liable for any loss of profits, or for any incidental, special, exemplary, consequential or punitive damages (including, but not limited to, loss of profits, loss of savings, loss of data, or loss of use damages), or any claims or demands brought against END USER, even if RELIABLE has been advised of the possibility of such claims or demands.  This limitation upon damages and claims is intended to apply without regard to WHETHER other provisions of this Agreement have been breached or have proven ineffective.

ARTICLE 7.0             INDEMNIFICATION.

7.1       Scope of Indemnity.  Subject to the provisions of this Article and the limitations of this Agreement, RSW will indemnify and hold END USER harmless against any liability incurred by END USER for any losses or damages suffered by any third party arising out of, or resulting from, any claim that the Software (but for the avoidance of doubt, not the Third Party Software or Hardware) infringes or violates any valid United States copyright or trade secret of any third party (a “Claim”).  END USER must notify RSW promptly of the Claim in writing and give RSW sole control of the defense and negotiations for a Claim’s settlement or compromise.  In the event an injunction or order is obtained against use of the Software, or at any time RSW is of the opinion that the Software is likely to become the subject of a Claim, RSW shall, at its sole option, (a) use its reasonable commercial efforts to obtain for END USER the right to use the Software, (b) use its reasonable commercial efforts to replace or modify the Software so that it is no longer subject to a Claim, or (c) terminate this Agreement and refund to END USER any prepaid fees for use of the Software and a prorated portion of the purchase price paid by END USER for the Hardware.  Any prorated refund with respect to the Hardware shall be calculated based on a straight-line amortization over a three (3) year period from the date of delivery of the Hardware to END USER. 

7.2       General Limitation.    RELIABLE shall have no liability or obligation to END USER hereunder with respect to a Claim based upon (a) compliance with designs, plans or specifications provided by END USER; (b) use of the Software by END USER in combination with devices or products not provided or approved by RSW hereunder where the Software would not itself be infringing; (c) use of the Software by END USER in an application or environment for which the Software was not designed or contemplated; (d) modifications of the Software by any party other than RSW, or (e) any claims of infringement of a patent, copyright, trade secret or other intellectual property rights in which the END USER has an interest or licenses. 

7.3       Limitation on Version.  The foregoing indemnification provisions of Section 7.1 shall apply only to the most current version of the Software issued by RSW from time to time.  RELIABLE assumes no responsibility for the use of superseded, outdated, or uncorrected versions of the Software.

7.4       Limitation of Remedy.  The foregoing indemnification provision constitutes END USER’s sole and exclusive remedy, and RELIABLE’s entire liability, for any claim of infringement of any kind with respect to the Software.

ARTICLE 8.0             CONFIDENTIALITY.

8.1       ScopeAll information, in any form (including the ReliaSale/ReliaServ Software), supplied to END USER, by RSW relating to the Software, and implementation or use of the Software, including any manuals and documentation or any copies, excerpts, summaries, analyses or notes thereof generated by END USER (collectively, the “Information”), will be treated as confidential.

8.2       All Information. (a) shall remain the property of RSW; (b) shall be treated as confidential by END USER, taking such action as shall be necessary or desirable to preserve and protect the confidentiality of the Information and in any event using means not less than those used to protect its own confidential information; (c) shall be used solely for purposes of implementation and use of the Software, and for no other purpose; and (d) shall not be disclosed to any party, other than END USER and such of its officers, directors, employees, financial advisors, accountants or attorneys as are strictly necessary to implement and use the Software (each an “Authorized Person”), without RSW’s prior written consent.  END USER shall implement appropriate administrative, technical and physical safeguards, including without limitation, those set forth in any security policy distributed by RSW from time to time, to protect the security, confidentiality and integrity of the Information, such safeguards to be designed to ensure the security and confidentiality of the Information, protect against any anticipated threats or hazards to the security or integrity of the Information and protect against unauthorized access to or use of the Information.  In the event that END USER or any of its Authorized Persons becomes legally compelled (including, without limitation, by law, rule, regulation, stock exchange or governmental regulatory or administrative or similar agency as part of a judicial or administrative proceeding (including, without limitation, by deposition, interrogatory, request for information or documents, subpoena, civil or criminal investigative demand or otherwise)) to disclose any of the Information, END USER shall provide RSW with immediate written notice of such requirement so that RSW may seek a protective order or other appropriate remedy or waive compliance with this paragraph.  If, absent the entry of a protective order or the receipt of a waiver under this Agreement, END USER is, in the opinion of its counsel, legally compelled to disclose the Information, END USER may disclose such information to the persons and to the extent required without liability and END USER agrees to exercise reasonable commercial efforts to obtain reliable assurance that confidential treatment will be accorded any Information so furnished.

8.3.      Equitable Relief.  END USER acknowledges and agrees that, in the event of END USER's breach of any of the foregoing provisions of this Article, RSW may not have an adequate remedy in money or damages and shall be entitled to obtain, without the need to post any bond or other security, an injunction against such breach from any court of competent jurisdiction immediately upon request.  RSW’s right to obtain injunctive relief shall not limit its right to seek further remedies.

8.4       Notification. END USER shall immediately notify RSW upon discovery of any loss or unauthorized disclosure of the Information.

8.5       Affiliate(s). Prior to disclosing the Information, END USER shall require each person (including an Authorized Person) who receives the Information to be cognizant of and to comply with the terms and conditions of this Agreement.  END USER is authorized to share Information with its affiliates provided that (a) END USER obtains RSW’s permission for such disclosure, with RSW agreeing to exercise reasonable commercial efforts in approving such disclosure; (b) the affiliate executes a document acknowledging the restrictions on Information contained herein (and RSW is notified of such agreement) and agrees to abide by the terms described in this Agreement; and (c) if any affiliate of END USER receives Information, such affiliate shall be responsible for compliance with the terms and conditions of this Agreement and liable for any breach of this Agreement by the affiliate and END USER shall also be responsible for compliance by its affiliate(s) and liable for any breach of this Agreement by the affiliate.

ARTICLE 9.0             GENERAL TERMS AND CONDITIONS

9.1       Law and Jurisdiction.  This Agreement shall all be governed by and construed in accordance with the laws of the State of New Hampshire, U.S.A. (without reference to the conflicts of laws provisions thereof).  The provisions of the United Nations Convention on Contracts for the International Sale of Goods are hereby excluded and shall not apply to this Agreement.  This Agreement shall be deemed to be performed and delivered within the United States of America.  Any action, suit or other legal proceeding arising under, or relating to, any provision of the Agreement may be commenced in any court of the State of New Hampshire (or, if appropriate, a federal court located within the State of New Hampshire), and END USER consents to the jurisdiction of such a court.   

9.2       Certain Payment Terms.  All amounts payable under this Agreement are payable in U.S. Dollars.  Any amount which is not received by RSW on or prior to the date on which such amount is due shall accrue interest at the rate of 1.5% per month.  If RSW institutes any legal action to collect any amount due under this Agreement, then END USER shall reimburse RSW for all costs and expenses, including reasonable attorneys’ fees, that RSW incurs in connection with such action.

9.3       Taxes.  Any United States (whether federal, state, or local) or foreign sales, use, or other taxes (excluding only any tax based on RSW's net income), assessments, or other governmental fees or charges arising from any payments made, or to be made, by END USER to RSW related to, or arising out of, this Agreement are the responsibility of, and shall be paid by, END USER or, if RSW is required to pay the same, shall be reimbursed by END USER to RSW upon demand.

9.4       Audit.  From time to time (but not more frequently than twice per calendar year), RSW may audit END USER’s use of the Software, the Documentation, and the Hardware at END USER’s premises during regular business hours to ensure compliance with the terms and conditions of this Agreement.  RSW shall provide not less than five (5) business days advance notice of its intent to audit.  If an audit reveals that END USER has underpaid fees to RSW as a result of unauthorized use or copying of the Software or the Documentation, then, in addition to any other remedy RSW may exercise at law or in equity, END USER shall pay to RSW the full amount of such unpaid fees plus interest thereon at the then prevailing Wall Street Journal prime rate from the initial date of such unauthorized use or copying.  If the amount of the underpayment exceeds five percent (5%) of the fees payable pursuant to this Agreement, or if such audit reveals that END USER breached the material terms and conditions of this Agreement, then END USER shall also pay RSW’s reasonable costs of conducting the audit.

9.5       Independent Contractor.  The relationship between END USER and RELIABLE is that of independent client and independent contractor respectively.  Neither party is an agent, employee, or employer of, or partner or joint venturer with, the other party.  At no time shall either party make, or be entitled to make, any commitments or representations, or incur any charges, expenses, or obligations, for or in the name of the other party.

9.6       Amendments.  No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought. 

9.7       Use as a Reference.  RSW may reference END USER as a customer of RSW, and END USER may reference RSW as a supplier to END USER; however END USER shall be prohibited from disclosing the terms of this Agreement to any third party other than its employees and professional advisors who need to know such terms and conditions in order for them to provide services to END USER in the ordinary course of business.  END USER agrees that RSW shall be entitled to issue a press release announcing that RSW is a supplier to END USER.

9.8       Severability.  Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.  If there is any conflict between any term, condition, or provision of this Agreement and any statute, law, ordinance, order, rule, or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be curtailed and limited only to the extent necessary to bring it within the legal requirements and the remainder of this Agreement shall not be affected thereby.

9.9       Binding Effect; Assignment.

            (a)        This Agreement shall be binding upon and for the benefit of the parties and their respective successors and permitted assigns.  RSW may assign this Agreement at its discretion.  Except as set forth in subsection (b) below, without the prior written consent of RSW, END USER may not assign, sublicense or otherwise transfer any rights (including as the result of a merger, acquisition of assets, stock sale, or other transaction resulting in a change of control) under this Agreement, or any license granted under this Agreement, in whole or in part.

            (b)        END USER may assign or transfer this Agreement in its entirety to a purchaser of End USER’s business (including as the result of a merger, acquisition of assets, stock sale, or other transaction resulting in a change of control), but if and only if, (i) no later than thirty (30) days following such transaction, END USER and such purchaser provide RSW with written notice thereof, including the unconditional written agreement by such purchaser to be bound by all of the provisions of this Agreement, and (ii) RSW consents to such assignment, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, in no event shall END USER be entitled to assign, sublicense, delegate, or otherwise transfer any rights under this Agreement to a competitor of RSW.

9.10     Notice.  Any notice required to be given to a party under this Agreement shall be in writing and shall be (a) given by personal delivery to such party, which shall be deemed received upon delivery, (b) mailed by registered or certified mail, return receipt requested, postage prepaid, which shall be deemed received three (3) business days after mailing, (c) shipped by a nationally-recognized overnight carrier, shipping prepaid, which shall be deemed received one (1) business day after mailing or (d) by email or facsimile transmission with confirmed receipt.  Any such notice shall be sent to RSW at 399 East Industrial Park Drive, Suite 1, Manchester, NH  03109, or END USER at the address or other contact information in RSW’s records.  Either party may at any time change the address and contact information to which written notices are to be sent to such party by notifying the other party of the new information in accordance with this Section.

9.11     Interpretation.  The article and section headings that appear throughout this Agreement are provided for convenience only and are not intended to define or limit the scope of this Agreement or the intent or subject matter of its provisions.  No rule of construction shall cause this Agreement, or any document related to this Agreement, to be construed against RSW as the party having originally drafted this Agreement or such related document.

9.12     Waiver.  No failure or delay by either party to exercise any right or remedy specified in this Agreement shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.

9.13     Entire Agreement; Conflicting Terms

            (a)        This Agreement is the complete and exclusive statement of RSW’s obligations and responsibilities to END USER with respect to the licensing of the Software, the sale of the Hardware and the providing of the Services and supersedes any and all prior proposals, quotes, discussions, purchase orders, representations, covenants, understandings, agreements, or other communications, whether written or oral, relating to the subject matter of this Agreement and thereof.

            (b)        Notwithstanding the foregoing, any separate confidentiality agreements entered into between the Parties shall remain in full force and effect, and to the extent that any of the provisions of any such agreement conflict with the provisions of this Agreement, the more restrictive provision shall prevail to the extent of such conflict.

            (c)        To the extent that any of the provisions of the Proposal conflict with the provisions of the Terms and Conditions, the provision more favorable to RELIABLE, as determined by RSW in its sole discretion, shall prevail to the extent of such conflict.

            (d)        END USER agrees that RSW and a Reseller, as the case may be, shall license the Software, sell Hardware, and provide the Services only in accordance with the terms and conditions of this Agreement.  The terms and conditions set forth in any purchase order or other document submitted by END USER shall be null and void and of no effect.

9.14     Force Majeure.  RSW shall not be liable to END USER for any delay or non-performance of its obligations under this Agreement arising from any cause beyond RSW’s reasonable control.

9.15     Non-SolicitationDuring the Term and for a period of six (6) months thereafter, END USER shall not, directly or indirectly, solicit for employment nor employ (or solicit as an independent contractor or engage as an independent contractor) the employees, former employees, or independent contractors of RSW without RSW’s prior written consent.