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<br />3.2 Company may choose to bill through an invoice, in which
<br />case, full payment for invoices issued in any given month must be
<br />received by Company forty-five (45) days after the mailing date.
<br />
<br />4. TERM AND TERMINATION
<br />4.1 Subject to earlier termination as provided below, this
<br />Agreement is for the Initial Service Term as specified in the
<br />Agreement (the “Term”), unless either party requests in writing
<br />termination at least thirty (30) days prior to the end of the then-
<br />current term.
<br />4.2 In addition to any other remedies it may have, either party
<br />may also terminate this Agreement upon thirty (30) days’ notice,
<br />if the other party materially breaches any of the terms or conditions
<br />of this Agreement. Customer will pay in full for the Services up
<br />to and including the last day on which the Services are provided.
<br />Upon termination for any reason, Customer shall cease all use of
<br />the Software and Application and the Company will make all
<br />Customer Data available to Customer for electronic retrieval for a
<br />period of 120 days, but thereafter Company shall delete stored
<br />Customer Data. All sections of this Agreement which by their
<br />nature should survive termination will survive termination,
<br />including, without limitation, accrued rights to payment,
<br />confidentiality obligations, warranty disclaimers, and limitations
<br />of liability.
<br />5. CONFIDENTIAL INFORMATION
<br />5.1 The Company and the Customer understand and agree
<br />that in the performance of this Agreement, each party may have
<br />access to or may be exposed to, directly or indirectly, proprietary
<br />or confidential information of the other party, including, but not
<br />limited to, trade secrets, Web site usage statistics, marketing and
<br />business plans, Customer Data and technical information
<br />(“Confidential Information”).
<br />5.2 Each party agrees that it shall not, during the term of this
<br />Agreement and after its termination, use (except as expressly
<br />authorized by this Agreement) or disclose Confidential
<br />Information of the other party without the prior written consent of
<br />the other party, unless the receiving party can prove such
<br />Confidential Information (i) was known to the receiving party
<br />prior to the Effective Date of this Agreement, or (ii) is or becomes
<br />publicly available without breach of this Agreement, or (iii)
<br />becomes known to the receiving party after rightful disclosure
<br />from a third party not under an obligation of confidentiality; or (iv)
<br />was independently developed by the receiving party without the
<br />use of the disclosing party’s Confidential Information. The
<br />receiving party will have the right to disclose Confidential
<br />Information without being in breach of this Agreement to the
<br />minimum extent necessary to comply with a lawful court order or
<br />government regulation, provided that the receiving party provide
<br />the disclosing party with advance written notice thereof, and
<br />reasonably cooperates with the disclosing party to seek
<br />confidential or protective treatment of such Confidential
<br />Information. In addition, the receiving party agrees to take all
<br />reasonable measures to protect and maintain in confidence the
<br />Confidential Information received from the disclosing party. With
<br />respect to Confidential Information disclosed by a party under this
<br />Agreement, this Section 5 shall supersede any existing agreement
<br />relating to confidential treatment and/or nondisclosure of
<br />Confidential Information.
<br />6. WARRANTY AND DISCLAIMER
<br />Company shall use reasonable efforts consistent with
<br />prevailing industry standards to maintain the Services in a manner
<br />which minimizes errors and interruptions in the Services and shall
<br />perform the Implementation Services in a professional and
<br />workmanlike manner. Services may be temporarily unavailable
<br />for scheduled maintenance or for unscheduled emergency
<br />maintenance, either by Company or by third-party providers, or
<br />because of other causes beyond Company’s reasonable control,
<br />but Company shall use reasonable efforts to provide advance
<br />notice in writing or by e-mail of any scheduled service disruption.
<br />HOWEVER, COMPANY DOES NOT WARRANT THAT THE
<br />SERVICES WILL BE UNINTERRUPTED OR ERROR FREE;
<br />NOR DOES IT MAKE ANY WARRANTY AS TO THE
<br />RESULTS THAT MAY BE OBTAINED FROM USE OF THE
<br />SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
<br />SECTION, THE SERVICES AND IMPLEMENTATION
<br />SERVICES ARE PROVIDED “AS IS” AND COMPANY
<br />DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
<br />INCLUDING, BUT NOT LIMITED TO, IMPLIED
<br />WARRANTIES OF MERCHANTABILITY AND FITNESS
<br />FOR A PARTICULAR PURPOSE AND NON-
<br />INFRINGEMENT.
<br />7. INDEMNITY
<br />Company shall hold Customer harmless from liability to
<br />third parties resulting from infringement by the Service of any
<br />United States patent or any copyright or misappropriation of any
<br />trade secret, provided Company is promptly notified of any and all
<br />threats, claims and proceedings related thereto and given
<br />reasonable assistance and the opportunity to assume sole control
<br />over defense and settlement; Company will not be responsible for
<br />any settlement it does not approve in writing. The foregoing
<br />obligations do not apply with respect to portions or components of
<br />the Service (i) not supplied by Company, (ii) made in whole or in
<br />part in accordance with Customer specifications, (iii) that are
<br />modified after delivery by Company, (iv) combined with other
<br />products, processes or materials where the alleged infringement
<br />relates to such combination, (v) where Customer continues
<br />allegedly infringing activity after being notified thereof or after
<br />being informed of modifications that would have avoided the
<br />alleged infringement, or (vi) where Customer’s use of the Service
<br />is not strictly in accordance with this Agreement. If, due to a claim
<br />of infringement, the Services are held by a court of competent
<br />jurisdiction to be or are believed by Company to be infringing,
<br />Company may, at its option and expense (a) replace or modify the
<br />Service to be non-infringing provided that such modification or
<br />replacement contains substantially similar features and
<br />functionality, (b) obtain for Customer a license to continue using
<br />the Service, or (c) if neither of the foregoing is commercially
<br />practicable, terminate this Agreement and Customer’s rights
<br />EXHIBIT 1
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