TERMS AND CONDITIONS

The following “terms and conditions” create and are part of a contract between Customer and JNPSoft, Inc./OptiCat, LLC (“Company”).   These terms and conditions also include and specifically incorporate the Products Specific Agreement, which was separately established and agreed to between Customer and Company.  The following terms and conditions and the Products Specific Agreement are collectively referred to as the “Agreement,” and both of which together constitute one and the same Agreement.  Unless otherwise indicated, Customer and Company can collectively be referred to as “Parties,” or separately as a “Party.” 

1. Products & Services:  This Agreement governs and applies to the Customer’s use, license, access, or purchase, in whole or in part, of all services, data, software as a service,  software, hardware, or products that is/are provided, developed, serviced, or maintained, including any third party material or information related to the same, whether now existing or later developed, by Company, including the Products referred to as OnBoard, OnDemand, Data Receivers, eCommerce, OE Data, Data Management Services, Branded Websites, Load Sheets, Custom Software & Consulting, FTP Hosting, Data Suppliers/Software, Advertising, JNP PIM, or any other one-time services, without limitation, through which Customer accesses, uses, or downloads any form of information, data, or content whatsoever (herein referred to as “Products” and separately as a “Product”).
   
   
2. Reservation of Rights:  Company reserves the right, at its timing and discretion, to add, modify, update, and discontinue existing or any later developed Products or Product.  Company further reserves the right, at its timing and discretion, to revise, modify, and update the Products Specific Agreement and/or these terms and conditions, which shall be immediately effective.  Customer’s continued use of the Products or Product shall be deemed acceptance of any updated, revised, or modified terms and conditions and the same with respect to the Products Specific Agreement.
   
   
3. Third Party Materials or Links:  Company is not responsible or liable, regardless of theory or circumstance, for any third-party material that may be included, distributed, or accessed within or linked to the Products or Product.  Company does not control, endorse, sponsor, recommend, or otherwise accept any responsibility for the content of any linked sites or third-party material relative to the Products or Product.
   
   
4. Electronic Communications/Agreement:  By accessing or using, in whole or in part, Company’s website, any Product, or Products, Customer agrees to these terms and conditions and the Agreement as binding on Customer and its representatives, and that Company can communicate with Customer electronically, with Customer’s agreement to pay all applicable costs, charges or other obligations that Customer may incur or be responsible for based on such communications or actions. 
   
   
5. Service and Support:   Subject to and without waiver of the limitations or obligations set forth in the Parties’ Agreement, Company will provide Customer with support and assistance regarding the utilization of the Products or Product as specified in the Products Specific Agreement.  Although no response time or outcome can be guaranteed, Company will provide to Customer during its hours of operation commercially reasonable efforts to respond to support requests regarding the Products/Product, and Company will also use commercially reasonable efforts to maintain service availability of the hosted aspects of any Products/Product listed as part of the Products Specific Agreement, excepting maintenance and service upgrade outages.  Company represents to Customer that it has the legal right and authority to enter into the Agreement, and that the Products/Product were/was developed, provided, and/or hosted consistent with industry applicable standards.    
      
   
6. Customer Conduct:  In using or accessing Company’s Products or any Product, in whole or in part, Customer agrees to: (i) abide by the terms, conditions, and obligations of this Agreement, and all applicable laws, obligations, rules, and regulations regarding the same; (ii) not engage in fraud or the misuse of the Products, or any Product, or Company’s proprietary trade secret information, or other intellectual property rights; (iii) not resell, divert, reverse engineer, or misappropriate, in whole or in part, the Products or any Product, or Company’s proprietary trade secret information; (iv) not cause a service outage or the corruption of the Products, or any Product, or Company’s proprietary trade secret information; (v) install an effective security mechanism and other procedures or software so as to protect against the unauthorized duplication, distribution, or manipulation of the Products or any Product, or Company’s proprietary trade secret information; and  (vi) not assist or permit anybody to violate the terms and obligations of the Agreement.           
   
   
7. No Warranty:  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS OR ANY PRODUCT, IN WHOLE OR IN PART, AS PROVIDED OR IN ANY MANNER ACCESSED PURSUANT TO THIS AGREEMENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS OR ANY PRODUCT, EITHER EXPRESS, IMPLIED, OR STATUTORY.  COMPANY, INCLUDING WITH RESPECT TO ANY THIRD PARTY CONNECTED SOFTWARE OR RELATED SERVICES OR INFORMATION, EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OF SATISFACTORY QUALITY, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PRODUCTS OR ANY PRODUCT.  CUSTOMER UNDERSTANDS AND AGREES THAT ITS ACCESS TO THE PRODUCTS OR ANY PRODUCT IS VIA A WEB PORTAL, AND CUSTOMER USES ALL THIRD-PARTY SOFTWARE AND SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PRODUCTS OR ANY PRODUCT, AT CUSTOMER’S OWN DISCRETION, COST, AND RISK.  CUSTOMER HEREBY AGREES TO BE SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGES OR COSTS WHATSOEVER, REGARDLESS OF FORM OR EXTENT, TO CUSTOMER’S COMPUTER SYSTEMS OR OTHER PROPERTY OR THE LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE PRODUCTS OR ANY PRODUCT AND/OR SUCH THIRD-PARTY SOFTWARE AND/OR RELATED SERVICES OR INFORMATION.  NO ORAL OR WRITTEN COMMUNICATION BY COMPANY OR ITS AGENT(S) SHALL CREATE A WARRANTY.  
   
   
8. Limitation of Liability/Damages: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL COMPANY, OR ITS RECEIVERS, SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO OR CONNECTED WITH THE PRODUCTS OR ANY PRODUCT, OR OTHER SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, WHETHER SUCH CLAIMS OR DAMAGES ARE BASED ON WARRANTY, CONTRACT, STRICT LIABILITY, OR TORT, INCLUDING WITHOUT LIMITATION, ANY CLAIMS OR DAMAGES FOR NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF SECURITY, LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE DATA, BUSINESS INTERRUPTION, COMMERCIAL DAMAGES OR LOSSES OF ANY NATURE OR FORM, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF COMPANY UNDER THIS AGREEMENT, AND ITS PARTNERS AND THEIR RESPECTIVE AFFILIATES OR AGENTS ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OF THE PRODUCTS OR ANY PRODUCT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY CUSTOMER TO COMPANY FOR THE PRODUCTS OR ANY PRODUCT OR USE THEREOF.  IF THE PRODUCTS/PRODUCT ARE/IS PROVIDED WITHOUT CHARGE, THEN THERE SHALL BE NO LIABILITY WHATSOEVER.   THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCTS OR ANY PRODUCT, FROM THE INABILITY TO USE THE PRODUCTS OR ANY PRODUCT, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCTS OR ANY PRODUCT (INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATIONS, AS DESCRIBED HEREIN, SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. 
   
   
9. Waiver/Indemnity:   By using the Products or any Product, in whole or in part, and to the fullest extent permitted by applicable law, Customer hereby agrees to and shall indemnify and hold Company and its respective managers, members, affiliates, contractors, licensors, shareholders, officers, directors, partners, agents, and employees harmless from and against any and all obligations, lawsuits, injuries, losses, damages, claims, costs, expenses, fees, demands, liabilities, judgments, penalties, investigation costs, including attorneys’ fees and costs, incurred in connection with, arising directly or indirectly out of, or in any way connected with Customer’s use of the Products or any Product or a breach of this Agreement.   Customer agrees that it shall not institute a claim or lawsuit against Company or recover any damages from Company, its managers, members, affiliates, contractors, licensors, shareholders, officers, directors, partners, agents, and employees as result of Company’s decision to remove, deny or suspend or terminate the Customer’s access to or use of the Products or any Product.
   
   
10. Governing Law/Mandatory Jurisdiction/Fees and Costs:  This Agreement shall be governed by the laws of the State of Utah, including the provisions of the Utah Uniform Arbitration Act, but without regard to any principles of conflicts of laws.  Only as necessary to enforce the mandatory arbitration obligation or in order to seek provisional remedies in aid of arbitration or to secure injunctive relief to protect Company’s trade secrets and confidential and proprietary information or to maintain the status quo, such issues and related disputes shall be subject to the exclusive and mandatory jurisdiction of the state and federal courts of the State of Utah, and of the courts to which appeals may be taken from such Utah state or federal courts.  For such purposes, Customer hereby submits itself to the exclusive jurisdiction of such Utah state and federal courts and agrees that the exclusive venue shall be in Salt Lake City, Salt Lake County, State of Utah.  In any judicial proceeding as authorized by this provision, the Court shall award the prevailing Party its reasonable attorneys’ fees and costs.  
    
    
11. Mandatory Arbitration:   To the maximum extent permitted by applicable law, any dispute, clam, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this provision, shall be determined by binding arbitration in Salt Lake City, Salt Lake County, State of Utah before one (1) arbitrator.  The arbitration shall be administered by JAMS pursuant to its comprehensive arbitration rules and procedures.  This provision shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of mandatory and exclusive jurisdiction.  The Parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a judicial application for a temporary/preliminary remedy or a filing for injunctive relief, a judicial challenge to an award or its enforcement, or to confirm a final arbitration award and judgment.  In any arbitration proceeding arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.  If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
    
    
12. Class Action and Jury Waiver.  To the maximum extent permitted by applicable law, Customer hereby waives any right to assert any claims against Company in any class or representative action. EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.   Each Party waives the right to a trial by jury. 
    
    
13. Entire Agreement/Survival:  These terms and conditions, including the Products Specific Agreement (including, if any, incorporated quotation form), constitute the entire Agreement between the Parties.  Any prior negotiations, correspondence, discussions, advice, or understandings, including any prior Data Receiver Software License, Service Agreement shall be deemed superseded and replaced by this Agreement and shall be of no force or effect.  This Agreement shall only be amended, modified, superseded, or altered by a subsequent written instrument agreed to by the Parties that specifically indicates that it is intended to amend, modify, supersede, or alter this Agreement.   Certain provisions and obligations of this Agreement shall survive any termination of this Agreement.  The surviving provisions and obligations of this Agreement are (as captioned and if included): Third Party Materials or Links, Electronic Communications/Agreement, Customer Conduct, No Warranty, Limitation of Liability/Damages, Waiver/Indemnity, Governing Law/Mandatory Jurisdiction/Fees and Costs, Mandatory Arbitration, Class Action and Jury Waiver, Entire Agreement/Survival, Severability, Statute of Limitations,  Construction, Customer Communication and Related Obligations, Term & Termination, Delivery Method/Customer Portal, Liquidated Damages, and Electronic or Signature/Notice. 
    
    
14. Severability:  In the event that any provision, obligation or term of this Agreement shall be determined to be invalid, illegal, or unenforceable for any reason whatsoever, the validity, legality, and enforceability of the remaining provisions, obligations and terms of this Agreement shall not in any way be affected or impaired thereby and such provision, obligation, or term shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
    
    
15. Statute of Limitations:  To the maximum extent permitted by applicable law, any cause of action, claim or damage arising out of or related to the use of the Products or any Product or this Agreement, must be commenced within one (1) year after the cause of action, claim, or damage accrues.  Otherwise, as agreed by the Parties, such cause of action, claim or damage is permanently barred and extinguished.
    
    
16. Construction: The headings and captions herein are inserted for convenient reference only and the same shall not limit or construe the paragraphs or sections to which they apply or otherwise affect the interpretation hereof.  This Agreement shall not be construed more strictly against one Party than against the other merely by virtue of the fact that it may have been prepared primarily by counsel for one of the Parties.
    
    
17. Assignment:  Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Customer without the prior written consent of Company.  Company, at its sole discretion and without notice to Customer, may assign this Agreement, and its rights and obligations hereunder in connection with a merger, consolidation, sale, asset sale, reorganization, or other similar transaction, without recourse or claim by Customer.