Subscription Agreement

This Subscription Agreement (“Agreement”) is a legal agreement between Alcion, Inc., which is headquartered at 2445 Augustine Dr., Suite 401, Santa Clara, CA 95054 (“Alcion” or “we/us/our”) and the licensed user (“Licensee” or “you”), to allow you and, if you are a corporate entity, your Authorized Users, as defined below, to use Alcion’s Services, as defined below, for the term of your Subscription (defined below) and pursuant to its terms. Accordingly, if you enter into this Agreement on behalf of the corporate entity that is your employer, you are representing that you have the authority to bind your employer to this Agreement as the Licensee. Please read this Agreement carefully, because it constitutes a written contract between you and Alcion in regard to your use of our Services for the term of your Subscription, and it affects your legal rights and obligations. Each time you or your Authorized Users access and/or use our Services, you are agreeing, from the Effective Date (as defined below), to comply with and to be bound by all of the terms and conditions of this Agreement. Therefore, do not use the Services if you do not agree to all of the terms of this Agreement.

1. DEFINITIONS.

1.1 “Authorized User” means any employee, agent, independent contractor, or representative of Licensee who uses the Solution (defined below) under Licensee’s control and supervision pursuant to Licensee’s License (defined below) in this Agreement for the term of Licensee’s Subscription, and for whose individual actions in using the Solution Licensee is responsible.

1.2 “Documentation” means any user-manual or technical documentation and specifications that Alcion provides with the Services (defined below).

1.3 “Effective Date” means the date on which the Licensee activates Licensee’s subscription by accessing and/or using Alcion’s services for the first time to indicate affirmative consent to this Agreement.

1.4 “Intellectual Property” means any created or developed technology, patentable subject matter, invention, process, form of matter, device, machine, software, source or object code, copyrightable work, document, written work, drawing, graphical work, created work in an electronic medium, symbol, logo, slogan, design, trademark, service mark, trade name, trade dress, trade secret, know-how, proprietary and confidential information, or any other form of creativity which takes form in a tangible medium of expression and is protected and enforceable under any Intellectual Property Rights (defined below)recognized in any jurisdiction throughout the world.

1.5 “Intellectual Property Rights” means all rights of ownership or enforcement in any Intellectual Property now held or hereafter created or acquired by a party, regardless of whether arising under the laws of the United States, under the laws of any other jurisdiction throughout the world, or under any international treaty for (i) all classes or types of patents, including, without limitation, utility models, utility patents and design patents, patent applications and disclosures, and any extensions in any jurisdiction throughout the world; (ii) all copyrights, all ancillary and sub-rights of copyright, and all moral rights in both published and unpublished works, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; (iii) all trademarks and service marks and trade names, and all corresponding registrations and applications therefor in any jurisdiction throughout the world; and (iv) all know-how, trade secrets, and confidential, technical and non-technical information created or acquired by a party.

1.6 “Services” means the Solution (as defined below) and all services provided by Alcion as part of Licensee’s Subscription (as defined below), including Support.

1.7 “Solution” means any and all software products and tools offered by Alcion as part of its Services, including its user data backup and storage SaaS platform, Alcion’s downloadable app(s) (if any), any connector products and/or APIs owned by Alcion, as well as any Updates (defined below), add-ins, or other executables made available. For clarity, the term Solution is included in the definition of Services. Also for clarity, this definition of Solution excludes any Third Party Software and Open Source Software (each as defined in Section 2.4).

1.8 “Subscription” means the payment terms, scope, seat number, and duration of Licensee’s access to the Services under the License, as delineated on the Pricing page of Alcion’s Website.

1.9 “Update” means, if applicable, an update of the Solution that Alcion makes generally available at no additional charge to customers that receive Support, including, if and when available, bug fixes, patches, maintenance releases, new point releases, and new major version releases. If provided, Updates include only the Solution licensed by Licensee hereunder, and do not include any new options, new or future product, or any upgrade in features, functionality or performance of the Solution that Alcion licenses separately from the Solution, or which Alcion offers only for an additional fee.

1.10 “Use” of the Solution means and includes any action of accessing or executing the Solution, or temporarily downloading and displaying the Solution on a monitor screen.

1.11 “Website” means the alcion.ai website and any subdomains of that website.

2. License Grant; Features; Services.

2.1 License. Subject to the terms and conditions of this Agreement, Alcion grants Licensee a nonexclusive, nontransferable, nonsublicensable license to use the Services, and to use the Solution included in the Services in executable object code format only as a login-accessible SaaS platform, solely in accordance with the Documentation, and for the term provided in Licensee’s Subscription (“License”).

2.2 License Management Solution. As part of the Services, the Solution may utilize a license management solution which enables use of the Solution under the Subscription as purchased by Licensee in accordance with the restrictions provided by Alcion in this Agreement. The license management solution may prevent or restrict additional user login, availability of certain functionality, processing of additional data or setup of new Authorized Users until a valid amended or extended License is obtained by Licensee from Alcion.

2.3 License Restrictions. Licensee shall not, and shall not allow any third party to: (a) decompile, disassemble, or otherwise reverse engineer the Solution or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Solution by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Alcion); (b) distribute, sell, sublicense, rent, or lease the Services and/or the Solution and/or the Documentation (or any portion thereof) or attempt to distribute, sell, sublicense, rent, or lease the Services and/or the Solution and/or the Documentation (or any portion thereof); (c) use the Services and/or the Solution and/or the Documentation (or any portion thereof) for any purposes not expressly permitted under this Agreement; (d) remove any product identification, proprietary, copyright or other notices contained in the Solution or the Documentation (including any reports or data printed or exported from the Solution); (e) modify any part of the Solution or the Documentation, create a derivative work of any part of the Solution or the Documentation, incorporate the Solution into or with other software, or use the Solution (or any part thereof) to provide any product or service to a third party, except to the extent expressly authorized in writing by Alcion; (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Services and/or the Solution.

2.4 Behavior of Licensee and its Authorized Users. Licensee hereby understands, acknowledges, and agrees that Licensee and its Authorized Users, for whom Licensee is fully responsible and liable, will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Solution in whole or in part; and/or remove any proprietary notices of copyright or trademark ownership, any watermarking, or any other proprietary notices or language referring to Alcion's ownership of the Solution; and/or copy, reproduce, publish, distribute, or redistribute any of the Solution, in whole or in part, to any person who is not authorized to use the Solution pursuant to this Agreement; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Solution, any rights granted under this Agreement, or any intellectual property rights owned by Alcion, to any other person or entity; and/or provide any other person or entity access to the Solution by means of Licensee’s username and/or Licensee’s password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell Licensee’s username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Solution, or otherwise discover or duplicate any technology, routines, computer code, algorithms, methods or underlying ideas or designs or user interface techniques included in any portion of the Solution; and/or monitor, gather, copy, or distribute any content or data included in the Solution by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or insert any code or product to manipulate the Solution in any way; and/or make or attempt to make any commercial use or exploitation of the Solution; and/or circumvent, disable or otherwise interfere with the security features of the Solution, or any features that prevent or restrict use or copying of any portion of the Solution; and/or use the Solution to collect or harvest any personally identifiable information (“PII”), including usernames and passwords of others; and/or use the Solution to create multiple accounts under false or fraudulent pretenses; and/or use the Solution to create or transmit unsolicited electronic communications; and/or use the Solution to transmit any harmful code sequence or routines; and/or use the Solution to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or claim the Solution as Licensee’s property, Licensee’s creation, or Licensee’s work of authorship, in whole or in part; and/or contest or dispute Alcion’s ownership of the Solution and all intellectual property rights in the Solution; and/or use the Solution after the termination date of this Agreement; and/or use the Solution, in whole or in part, in any manner not authorized by this Agreement. LICENSEE HEREBY UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT ANY VIOLATION OR SUSPECTED VIOLATION OF THE FOREGOING LICENSE RESTRICTIONS BY LICENSEE OR ONE OF ITS AUTHORIZED USERS MAY CONSTITUTE GROUNDS ON WHICH ALCION MAY, IN ITS SOLE DISCRETION, SUSPEND OR TERMINATE LICENSEE’S LICENSE TO USE THE SERVICES, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO ALCION AT LAW OR EQUITY.

2.5 Third-Party and Open Source Software. The Solution provided with the Services may be distributed with or contain or use certain third-party proprietary software (“Third-Party Software”) and certain “open source software” or “free software” (“Open Source Software”), which may be identified in the Documentation, or, if not so identified, Alcion shall provide a list of such Third-Party Software and Open Source Software and copies of their governing licenses, upon request. Such Third-Party Software and Open Source Software (i) are not subject to the terms and conditions of Sections 2.1 (License) or 7(Indemnification) and (ii) are licensed under the terms of the end-user license that accompanies such software. Nothing in this Agreement limits Licensee’s rights under, or grants Licensee rights that supersede, the terms and conditions of any applicable end user license for the Third-Party Software and Open Source Software. If required by any license for particular Open Source Software, Alcion makes such software, and Alcion’s modifications to that Open Source Software, available by written request.

2.6 Support. For such period as Licensee has paid the applicable fees pursuant to Licensee’s Subscription, Alcion shall provide support and maintenance services for the Solution, as set forth in the Alcion Support and Maintenance Terms of Service (“Support”).

2.7 Audit Rights. Licensee acknowledges and agrees that Alcion may, at its expense, audit Licensee’s use of the Services, and the Solution. Any such audit shall either be conducted by means of remote access from a Alcion location or on-site during regular business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities.

2.8 Communications. Licensee acknowledges and agrees that, as a condition of the License, Alcion may send direct email communications to Licensee, including, but not limited to, email communications that address the following: (i) Nurturing emails to highlight product features and encourage product usage;  (ii) Transactional emails regarding important product activity status; (iii) billing communications; (iv) marketing communications.

3. CONTENT.

3.1 Licensee’s Responsibility for Content. Licensee agrees that Licensee is solely responsible for the data and content uploaded, downloaded, sent, transmitted, displayed, performed, posted, stored, or otherwise used by Licensee and Licensee’s Authorized Users (“Content”) in using the Services and for compliance with all laws applicable and pertaining to the Content, including, but not limited to, laws requiring Licensee to obtain the consent of a third party to use any Intellectual Property owned by such third party as part of the Content and to provide appropriate notices of third-party rights to the appropriate parties. Licensee represents and warrants, without qualification or limitation of any kind, that Licensee has the ongoing right to upload and use the Content on, in, with, or in connection with Alcion’s Services and that the use of such Content will not in any manner violate or infringe on any Intellectual Property Rights or other rights owned by any third party. Licensee understands, acknowledges, and agrees that Licensee and its Authorized Users bear all responsibility and all liability for Content and that under no circumstances will Alcion be liable in any way for any (a) Content that is transmitted or viewed or otherwise used while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although Alcion is not responsible for any Content, Alcion may delete any Content, at any time without notice to you, if Alcion becomes aware that the Content violates any provision of this Agreement, or any applicable law.

3.2 Security. Alcion will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with Alcion’s Services and with current best practices and standards in the industry. Alcion will notify you if it becomes aware of unauthorized access to your Content. Alcion will not access, view or process Content except (a) as provided for in this Agreement and in Alcion’s Privacy Policy which is posted on the Website at https://alcion.ai/privacy (b) as authorized or instructed by Licensee, (c) as required to perform Alcion’s obligations under this Agreement;(d) as required to perform maintenance to the Solution and to ensure its reliability and the integrity of its security; or (e) as required by applicable law. Licensee understands, acknowledges, and agrees that Alcion has absolutely no other obligations with respect to Content.

4. Proprietary Rights.

The Services are licensed and not sold to Licensee. Alcion and its suppliers exclusively own all Intellectual Property inherent in the Services and all Intellectual Property Rights applicable to or invoked by the Services, the Solution, the Documentation and Third Party Software, and any modifications, improvements, enhancements, customizations, Updates, or derivative works thereof. No title or ownership of the Intellectual Property or any Intellectual Property Rights passes under this Agreement, and all rights not expressly granted to Licensee in this Agreement are reserved by Alcion. Licensee may provide suggestions or improvements to Alcion in connection with this Agreement(“Feedback”). Alcion shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Solution any such Feedback. In regard to Content, as between Alcion and Licensee, Licensee and its licensors shall retain ownership of all Intellectual Property and associated Intellectual Property Rights in and to the Content.

5. Fees And Payment.

5.1 Fees Paid via Credit Card. If Licensee has chosen to use a credit card as a payment mechanism under Licensee’s Subscription, Licensee agrees that Alcion may charge to Licensee’s credit card all amounts due and owing for the Services, including taxes and/or any other fee or charge associated with Licensee’s Subscription Account. Payment is due and owing to Alcion regardless of whether Licensee bills and/or receives payment from Licensee's clients.

5.2 Fees Paid via Invoicing. If Licensee has chosen invoicing as a payment mechanism under Licensee’s Subscription, Licensee agrees that Alcion may invoice all amounts due and owing for the Services, including taxes and/or any other fee or charge associated with Licensee’s Subscription Account. Payment is due and owing to Alcion regardless of whether Licensee bills and/or receives payment from Licensee's clients.

5.3 Price Changes. Alcion may change prices for the Services or for a component of the Services at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Alcion will provide you with prior notice if Alcion changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified at least thirty (30) days in advance of the applicable fees and have agreed to pay such fees. Payment shall be monthly and is due net thirty (30) days from the date of each monthly invoice.

5.4 Collections. You agree that in the event Alcion is unable to collect the fees owed to Alcion for the Services through Licensee’s Account, Alcion may take any other steps it deems necessary to collect such fees from Licensee and that Licensee will be responsible for all costs and expenses incurred by Alcion in connection with such collection activity, including collection fees, court costs and reasonable and directly related attorneys' fees. You further agree that Alcion may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.

5.5 Fee Disputes. Licensee’s activation of a Subscription account constitutes Licensee’s representation and warranty that Licensee can pay for the Subscription in accordance with the terms of this Agreement. Disputes regarding credit card charges or invoiced amounts must be communicated to Alcion within thirty (30) days of issuance date, and any Services item which is not disputed within thirty (30) days shall be deemed to have been accepted. All amounts not paid when due under this Agreement will accrue interest daily at a rate of 1.5% per month or the rate permissible under California law, whichever is lower, until the balance is paid in full. Licensee acknowledges and agrees that Alcion shall have the right to outsource invoice processing and issuance to a third-party service provider contracted to Alcion.

5.6 Taxes. Fees are exclusive of taxes. Licensee will pay all taxes (except for Alcion's income taxes) and other government imposed fees or assessments arising out of or related to Licensee's use of the Solution.

6. Term And Termination.

6.1 Term. The term of this Agreement shall commence on the Effective Date and shall, unless terminated earlier in accordance with the provisions of this Agreement, remain in force for the term of your Subscription(“Term”). At the end of the Term, Licensee shall have the choice to renew its subscription to the Services for at least one year or for such longer period for which Licensee pays or has paid the appropriate monthly fee under Licensee’s Subscription to keep Licensee’s account active.

6.2 Termination. Alcion may terminate this Agreement for any reason, including convenience, by providing reasonable advance notice to Licensee.  Alcion may terminate this Agreement immediately with or without notice to Licensee in the event that Licensee or any Authorized User of Licensee materially breaches any of the terms of this Agreement.  Licensee may terminate this Agreement by providing Alcion with written notice of termination at least thirty (30) days in advance of Licensee’s desired termination date. Termination will be effective thirty (30) days after Alcion receives the written notice or on a later date if the notice so specifies. Termination of this Agreement shall not relieve Licensee of its obligation to pay all fees owed by Licensee under Licensee’s Subscription.

6.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, {i} all licensed rights granted in this Agreement will immediately cease; and {ii} Licensee and all of Licensee’s Authorized Users will promptly discontinue all use of the Solution and Documentation and return to Alcion any Confidential Information in Licensee’s possession or control.

7. Warranties And Disclaimers.

Alcion warrants that the Solution will operate substantially in accordance with this Agreement and the Documentation. Licensee’s exclusive remedy and Alcion’s sole liability for breach of this warranty is that Alcion shall, at its own expense, use commercially reasonable efforts to correct or replace the Solution. This warranty will only apply if there is no modification, alteration or addition which has been made to the Solution by any person other than Alcion or its authorized agents. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, ALCION AND ITS SUPPLIERS OR LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES FOR THE SOLUTION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE ANDNON-INFRINGEMENT. LICENSEE AGREES THAT NEITHER ALCION NOR ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY THAT THE SOLUTION WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR NEEDS, PURPOSES, OR, EXPECTATIONS. EXCEPT AS STATED ABOVE, ALCION AND ITS SUPPLIERS (IF ANY) PROVIDE THE SOLUTION ON AN “AS IS” AND “AS AVAILABLE” BASIS. Alcion provides no warranties with respect to Third Party Software and Open Source Software. Licensee shall have the benefit of any third-party warranties, service agreements and infringement indemnities contained in the purchase agreements or licenses applicable to the Third-Party Software and Open Source Software.

8. Limitation Of Liability.

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW),NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) SHALL BE LIABLE FOR ANY LOSS OFUSE, LOSS OF DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS,OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OFANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVENIF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALCION’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO LICENSEE SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO ALCION DURING THE TERM. “Excluded Claims” means any claim arising from a breach of Section2.1 (Grant of License), 2.3 (License Restrictions) or 10 (Confidentiality). The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

9.  Indemnification.

9.1 Licensee’s Indemnification Obligation. Licensee shall indemnify and hold harmless Alcion, its officers, directors, employees, agents, representatives, and licensors from, and, at Licensee’s expense, shall defend Alcion against, any loss, damage or expense (including reasonable and directly related legal costs) that Alcion incurs or becomes liable for as a result of any breach by Licensee, by any of its Authorized Users, or by its agents, representatives, or others for whom Licensee is responsible, of any of the terms of this Agreement; any negligent, reckless or willful act or omission by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible; any failure by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible to comply with applicable laws in performing under this Agreement; any misuse by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible of the Solution or of the Documentation; any Content uploaded into the Solution by Licensee which infringes any Intellectual Property Rights of any third party; or, any claim made against Alcion by any third party for which Alcion is not liable under this Agreement, and which arises as a consequence of use of the Solution by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible. Licensee shall reimburse Alcion for its expenses under this Section as they are incurred. Alcion shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. Licensee, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Alcion obtained in advance, enter into any settlement which adversely affects Alcion’s rights or which does not include, as an unconditional term, a release granted to Alcion of all liabilities in respect of such claim, action or proceeding.

9.2 Alcion’s Indemnification Obligation. Alcion shall indemnify, defend and hold Licensee harmless against any claim or action brought by a third party against Licensee to the extent based upon any claim that the Solution infringes the Intellectual Property Rights of such third party. Licensee shall promptly notify Alcion in writing of any such claim, give Alcion full authority and control of the settlement and defense of the claim, and fully cooperate with Alcion in the defense of such claim. Alcion shall have no obligation to Licensee under this Agreement for any claim that arises from: (a) any modification to the Solution made by anyone other than Alcion; (b) any use by Licensee of the Solution other than as specified in this Agreement or in the Documentation (including on any hardware configuration other than the Equipment); or (c) Licensee’s use of prior versions of the Solution after an update has been provided by Alcion to Licensee. If a third-party claim for infringement arises, or in Alcion’s reasonable opinion is likely to arise, Alcion may at its own expense obtain for Licensee the right to continue using the Solution, may modify the Solution to make it non-infringing, or may substitute other software and hardware of similar capability and functionality. If none of the foregoing options are reasonably available to Alcion, Alcion may terminate this Agreement and refund to Licensee the fees paid, less the fees for Licensee’s use of the Solution prior to such termination. THIS SECTION STATES THE ENTIRE INDEMNIFICATION OBLIGATION OF ALCION AND LICENSEE’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BROUGHT AGAINST LICENSEE AND FOR WHICH LICENSEE MAY SEEK INDEMNIFICATION.

10. Confidentiality.

“Confidential Information” means any and all information related to the business of a disclosing party that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including, without limitation, software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Licensee and Alcion acknowledge and agree that, in regard to Confidential Information, each may simultaneously be a disclosing party and a receiving party under this Agreement. Without limiting the foregoing, the Services, the Solution, and the Documentation are the “Confidential Information” of Alcion. Licensee and Alcion agrees(i) to hold in confidence and protect a disclosing party’s Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except as described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. With the advance written permission of Alcion, Licensee may disclose Alcion’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect Alcion’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that a receiving party can demonstrate by a preponderance of evidence (a) was known to it prior to its disclosure; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is, by clear and convincing evidence in the possession of the receiving party, independently developed by the receiving party without reference to Alcion’s Confidential Information. The parties agree that a breach of this section may cause Alcion irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, Alcion shall be entitled to seek injunctive relief for any threatened or actual unauthorized disclosure without the requirement of having to post a bond in advance of its receipt of the injunctive relief.

11. Publicity.

Alcion may use Licensee’s name, logo and marks to identify Licensee as a customer of Alcion on Alcion’s website and other marketing materials.

12. U.S. Government End Users.

The Solution is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. The Solution is provided to any federal, state or local government agency only subject to the terms of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with 48 C.F.R. 12.212 and 48C.F.R. 227.7202-1 through 227.7202-4.

13. Force Majeure.

Alcion shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, fires, flood, storm, explosions, acts of God, war, governmental action, earthquakes, or any other cause which is beyond the reasonable control of Alcion.

14. Governing Law And Dispute Resolution.

This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The parties agree that any dispute that arises under this Agreement which cannot be resolved within thirty (30) days by good-faith negotiations between the parties shall be submitted to mandatory mediation in the city of San Jose, California and before a single mediator accredited and chosen by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The mediation shall take place within sixty (60) days after submission to JAMS, and it shall last no longer than ten (10) hours on one (1) working day, unless the parties agree to an extension of the mediation. The mediator shall apply U.S. and California law to the substantive issues and the JAMS’ Rules for Commercial Mediation to the procedural issues. The parties shall bear their own costs for the mediation, and they shall split equally the costs of the mediator. The resolution proposed by the mediator shall be binding with the consent of the parties, and it shall be submitted to any state or federal court in Santa Clara County, California for enforcement, which courts, the parties agree, have exclusive jurisdiction and venue for adjudication of disputes under this Agreement. If one or both parties is not satisfied with the result proposed by the mediator, such party or Parties shall have the right to file suit in any court having jurisdiction in Santa Clara County, California. Notwithstanding the foregoing, in circumstances of breach or alleged breach, Alcion may apply for injunctive relief at any time to any court having jurisdiction.

15. General.

All notices, under this Agreement must be delivered in writing by courier, by facsimile, by pdf attachment to an email, or by certified or registered mail (postage prepaid and return receipt requested) and shall be effective upon the earlier of receipt or three (3) business days after being deposited in the mail as required above. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Licensee may not assign or transfer this Agreement or its rights and obligations under this Agreement. Licensee agrees not to export the Solution in violation of the laws and regulations of the United States or any other nation. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such party. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. This Agreement may be amended only by a written document signed by both parties. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed to the extent necessary to make it valid and enforceable and the remaining provisions shall continue in full force and effect. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.