UPTICKER END USER LICENSE AGREEMENT

1. SUBSCRIPTION LICENSE GRANT.
a. Subject to the terms and conditions of this End User License Agreement (this “EULA”), UpTicker. (“UpTicker”) grants you a personal, limited, nonexclusive, non-transferable license to access and use the UpTicker software product (the “Software”) set forth in the agreement between you and UpTicker for access to the Software (the “Addendum”).  Use of the Software is subject to the terms set forth in the Addendum including the number of Authorized Users and time period (“Term”) set forth in the Addendum. 
b. Restrictions and Prohibitions on Use. Except as expressly permitted by Section 1(a), or upon the express prior written consent of UpTicker, you may not, nor permit others to: (1) copy, print, republish, display, transmit, distribute, sublicense, sell, rent, lease, loan, or otherwise make available in any form or by any means (including electronic media now existing or hereafter developed), all or any substantial portion of the Software; (2) provide anyone other than your Authorized Users access to the Software or any portions thereof;(3) use the Software to develop, or as a component of, an information storage or retrieval system, database, info-base, or similar information resource (in any media now existing or hereafter developed), including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism;(4) create compilations or derivative works of the Software;(5) make any portion of the Software available through any timesharing system, service bureau, the Internet, or any other technology now existing or developed in the future;(6) remove, change, or obscure any copyright notice or other proprietary notice or terms of use contained in the Software; (7) remove, disable, or defeat any functionality of the Software; or (8) upload content in the Software (through the Notes feature or otherwise) that is defamatory, libelous, pornographic or obscene, unless such content is reasonably related to professional responsibilities.  In addition, Authorized Users are strictly prohibited from uploading content to the Software that is considered protected health information under the Health Accountability and Portability Protection Act of 1996 (HIPAA) or the Health Information Technology for Economic and Clinical Health Act of 2009  (HITECH). 
c. Electronic Documents. Solely with respect to the electronic documents included with the Software (e.g., the electronic version of the user guide), you may only make as many copies as reasonably necessary for each Authorized User (either in hard copy or electronic form), provided that such copies shall be used only for your sole use and are not republished or distributed to any third party.
d. Third Party Materials.  The use of some third-party materials included in the Software may be subject to other terms and conditions typically found in a separate software agreement or "Read Me" file located in or near such materials
2. COPYRIGHT. UpTicker and its third party licensors and developers hold exclusive ownership of the Software and all intellectual property rights embodied therein, including copyrights and valuable trade secrets incorporated in the Software's design and coding methodology. The Software is protected by United States and international copyright laws and international treaty provisions. This EULA does not grant you any ownership or intellectual property rights in the Software.   Upon expiration of the Term, you will not have the right to continue using the Software and will promptly remove all copies of the Software from your systems.
3. REVERSE ENGINEERING. You agree that you will not, nor will you permit others to attempt to: (i) modify or translate the Software; (ii) decompile or disassemble the Software, (iii) create derivative works based on the Software; (iv) merge the Software with or into another product not approved for use by UpTicker (excluding Microsoft Office); or (v) copy the Software except as expressly permitted by this EULA.
4. SOFTWARE SUPPORT.
4.1 As part of your subscription to the Software, UpTicker will provide the following support and maintenance for the Software during the Term (“Support Services”):
(a) Product Support. UpTicker will provide telephonic product support services for the Software 24x7x365 days.
(b) Software Problem Resolution. If you report to UpTicker that the Software does not function according to the user-level documentation for the Software (“Software Problem”) and otherwise comply with Section

5 YOUR RESPONSIBILITIES, UpTicker will investigate the Software Problem within a reasonable time after receiving proper notice from you, and sufficient information to identify the problem. UpTicker will work to correct the Software Problem(s) that can be verified based on the information provided by you utilizing a system that meets the system requirements for the Software. If the investigation confirms the existence of a Software Problem, UpTicker will use reasonable efforts to correct the Software Problem which may include implementing a temporary work-around. If UpTicker, in good faith, determines that the Software Problem results from an error in the applicable user-level documentation, UpTicker may correct the Software Problem by correcting that documentation.
(c) Software Updates and Upgrades.  UpTicker has multiple different offerings of the UpTicker for Microsoft software product  The license granted herein is only to the UpTicker offering you have selected in the Addendum (for purposes of this Section 4.1(c) “Your Subscribed Product”) and to the Updates and Upgrades released by UpTicker to Your Subscribed Product.  This license does not entitle you to have access or use of any other UpTickersoftware product.  In order to ensure the proper operation of Your Subscribed Product in accordance with its written documentation, UpTicker will provide you with patches, bug fixes, corrections and minor enhancements (“Updates”) during the Term.  Updates will be provided free of charge as they become commercially available from UpTicker.  Your failure to promptly install Updates may result in the voiding of UpTicker’s warranty set forth in Section 6.  UpTicker will also provide you with feature or functionality enhancements to Your Subscribed Product (an “Upgrade”) free of charge as such Upgrades become commercially available from UpTicker.  UpTicker’s distribution of Upgrades and/or Updates to you does not entitle you to use more copies of Your Subscribed Product than the number of Authorized Users for which you have a valid subscription. This license, including the release of any Update or Upgrade to Your Subscriber Product, does not entitle you to have access to or use of any other UpTicker software product.  If you wish to subscribe to any other UpTicker software product, you must execute an Addendum with UpTicker which contains the appropriate terms of use and charges for the applicable UpTicker software product.  Your use of an Upgrade or Update is licensed in accordance with the terms and conditions of this EULA.
4.2 UpTicker is not obligated to provide Support Services for any Software (a) that has been provided to you free of charge, (b) that has been altered other than by UpTicker or at UpTicker’s direction, (c) that is more than two versions out of date, or (d) that integrates with or is designed for any platform that UpTicker or Microsoft no longer supports in the normal and ordinary course of its support lifecycle and/or release cycle.  For example, UpTicker is not obligated to support software designed to work with Microsoft platforms that fall outside of the period in which complimentary support services are available as part of the Microsoft license or licensing program; or requires extended support plans that may require additional charges. 
4.3 UpTicker retains the right to change or modify the Support Services offered herein at any time and from time to time upon thirty (30) days’ written notice to you.  In the event any such change materially and adversely affects the Support Services, you may terminate the Addendum and this EULA upon 10 days’ written notice to UpTicker.
5. YOUR RESPONSIBILITIES.
5.1 The Support Services do not include, and you must provide at your expense unless otherwise expressly agreed by you and UpTicker in writing: (a) installation, testing, and operation of the Software and all Upgrade and/or Updates; (b) isolation and documentation of Software Problems; (c) intranet resources, backup and restoration of your systems; and (d) modems and Internet access for UpTicker’s remote access and diagnosis of Software Problems, when necessary.
5.2 UpTicker is not responsible for products provided to you by third parties, whether or not UpTicker recommended them or assisted in their evaluation, selection, or supervision. The failure of those products or their respective suppliers to meet your requirements will not affect either party’s obligations under this EULA.
6. LIMITED WARRANTY.
During the Term, UpTicker warrants that the Software will operate substantially in accordance with the documentation provided, unless performance problems are the result of hardware failure, improper use, or modification by you or your agents or contractors or due to your failure to install all Updates.  If the Software does not so operate, your exclusive remedy and UpTicker's sole obligation under this warranty shall be, in UpTicker’s sole discretion, either to replace the Software, to provide you with a bug fix or patch, or to refund the purchase price paid for the current version of the Software.  UpTicker further warrants that Software Support will be performed in a professional manner, consistent with industry standards.  EXCEPT AS SET FORTH ABOVE, UpTicker DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  UpTicker DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE, UPGRADE OR UPDATE WILL MEET ANY PARTICULAR REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE SOFTWARE, UPGRADE OR UPDATE (INCLUDING SOFTWARE WHICH UpTicker CREATES OR MODIFIES FOR YOU) WILL OPERATE UNINTERUPTED OR ERROR-FREE, OR THAT THE SOFTWARE, UPGRADE OR UPDATE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM, SYSTEM OR APPLICATION.  PORTIONS OF THE SOFTWARE HAVE BEEN DEVELOPED BY MICROSOFT CORPORATION AND SUCH PORTIONS ARE PROVIDED “AS IS.”  ADDITIONALLY, IF YOU RECEIVED THE SOFTWARE FREE OF CHARGE, THE SOFTWARE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND.  ALL WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN APPLY TO UpTicker’S SOFTWARE DEVELOPERS, SUBCONTRACTORS AND SUPPLIERS.  IT IS THE MAXIMUM FOR WHICH THEY AND UpTicker ARE COLLECTIVELY RESPONSIBLE.
7. FEES AND PAYMENT FOR SUBSCRIPTION.
7.1 Applicable fees and charges for the Software and the support services are set forth in your UpTicker Addendum.  Unless otherwise stated, the fees for the subscription do not include any taxes, such as sales, use, or excise taxes.
7.2 In the event UpTicker sends you an invoice for the subscription, you shall pay UpTicker the net amount of each invoice in United States dollars within 30 days after the date of the invoice. If you fail to pay any invoiced amount when due, UpTicker may charge you interest on the unpaid balance from the date of the invoice until the date paid at a rate equal to 1.5% per month or the highest rate permitted by law, whichever is lower. In the event you pay the fee for the subscription by credit card, UpTicker will send you a receipt confirming the amount paid and date of expiration of the Term.
8. TERMINATION.
Upon termination of the Addendum, you will promptly cease all use of the Software and will return all copies of the Software and documentation to UpTicker or, at the option of UpTicker, certify to UpTicker in writing, signed by an executive officer, that all copies of the Software and documentation have been destroyed.  Termination of the Addendum will not be an exclusive remedy and all other remedies will be available to either party whether or not the Addendum is terminated.  UpTicker may terminate this EULA upon 90 days’ notice to you in the event UpTicker no longer provides Support Services for the Software.  In the event of termination, UpTicker will refund any prepaid but unused fees to you on a pro-rata basis.
9. LIMITATIONS OF LIABILITY.
NOTWITHSTANDING THE TERMS CONTAINED IN THIS EULA, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL UpTicker, ITS PARENT, AFFILIATES, OR ANY OF ITS SOFTWARE DEVELOPERS, SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF UpTicker HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER LOCAL LAW, CERTAIN LIMITATIONS MAY NOT APPLY, AND YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM STATE TO STATE. IN NO EVENT SHALL UpTicker'S LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE SUBSCRIPTION PAID BY YOU FOR THE PRECEDING TERM. 
10. UNITED STATES GOVERNMENT USE. The Software is Commercial Computer Software provided with RESTRICTED RIGHTS under the Federal Acquisition Regulations and agency supplements to them. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in System Data and Computer Software clause at DFAR 252.227-7013 et. seq. or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at DFAR 52.227-19, as applicable.
11. EXPORT RESTRICTIONS. You agree that you will not permit use of or export, directly or indirectly, re-export, divert or transfer the Software in violation of any applicable export control law or regulation, including without limitation, the U.S. Export Administration Regulations (“Export Controls”).
12. MISCELLANEOUS.
12.1 UpTicker (or its licensor, if applicable) retains sole title to and ownership of the Software and all components, all related information furnished to you under this EULA, and all related copyrights, trade secrets, and other intellectual property.
12.2 UpTicker furnishes products and services to you under this EULA on a non-exclusive basis. UpTicker may directly or indirectly furnish the same or similar products and services to other parties doing business within or outside the vertical, horizontal, or geographic markets in which you do business.
12.3 All notices required or permitted under this EULA shall be in writing and shall be delivered by any method providing sufficient proof of delivery, except that any notice other than a notice of default or notice of termination may be delivered by facsimile transmission if the original document is also promptly delivered to the recipient. Any notice shall be deemed to have been given on the date of receipt. Notices to UpTicker shall be sent to the address listed above with a copy to UpTicker, Attention: Customer Legal Services, info@uptickerapp.com 2.  Notices to you shall be sent to the address UpTicker has on record.
12.4 Each party shall submit requests for approvals, consents, and waivers to the other party in writing in a timely manner. No approval, consent, or waiver under this EULA shall be enforceable unless set forth in a writing signed by an authorized representative of the granting party. A waiver of a default of any term of this EULA shall not be construed as a waiver of any succeeding default of that term or as a waiver of the term itself. A party's performance after the other party's default shall not be construed as a waiver of that default. No approval, consent, or waiver shall be deemed to have been given by implication and neither party shall be liable for delays in responding to, failures to respond to, or denials of those requests.
12.5 Each term of this EULA is severable. If a court, agency, or arbitrator having jurisdiction determines that any term is unenforceable under applicable law, that determination shall not affect the enforceability of the other terms of this EULA.
12.6 This EULA, together with the UpTicker, constitutes the complete agreement between the parties concerning this subject, and supersedes all earlier oral and written communications between the parties with respect to this subject. In the event that you are required to accept any “click-through” license terms at the time of download of the Software or otherwise, the terms of such click-through shall control over any conflicting terms set forth in this EULA.
12.7 Neither party shall assign its rights or delegate its duties under this EULA without the prior written consent of the other party, except that UpTicker may assign this EULA to an affiliate or to its successor by merger or to the transferee of substantially all of its stock or assets.  Any assignee or delegatee shall be subject to the same obligations, restrictions, and limitations to which the assignor or delegator is subject, and no assignor or delegator shall be released from liability under this EULA by reason of any such assignment or delegation.  This EULA shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.