END USER LICENSE AGREEMENT

1.1

“Authorized Users” means persons authorized to use the Software pursuant to the license granted under this Agreement.

1.2

“Documentation” means user manuals, technical manuals, and any other materials provided by Momento, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

1.3

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.4

“License Fees” means the license fees, including all taxes thereon, paid by Customer for the license granted under this Agreement.

1.5

“Order Form” means the order form filled out and submitted by or on behalf of Customer, and accepted by Momento, for Customer’s purchase of the license for the Software granted under this Agreement.

1.6

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

1.7

“Software” means the software programs for which Customer is purchasing a license, as expressly set forth in the Order Form.

1.8

“Term” has the meaning set forth in Section 8.

1.9

“Third Party” means any Person other than Customer or Momento.

1.10

“Update” has the meaning set forth in Section 4.1.

2.1

License Grant. Subject to and conditioned upon Customer’s strict compliance with all terms and conditions set forth in this Agreement, Momento hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to
all conditions and limitations set forth in Section 2or elsewhere in this Agreement. This license grants Customer the right, exercisable solely by and through Customer’s Authorized Users, to: (i) Provision in
accordance with the Documentation one (1) copy of the Software on each of the designated computers set forth on the Order Form owned or leased, and controlled by, Customer. Unless the Order Form
expressly states that Customer is purchasing a network or group license, each such computer shall be for a single Authorized User. In addition to the foregoing, Customer has the right to make one copy of
the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Customer shall not, and shall not allow any Person to, install or use such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Customer uninstalls and otherwise deletes such inoperable copy. All copies of the Software made by the Customer: (a) will be the exclusive property of the Momento; (b) will be subject to the terms and conditions of this Agreement; and (c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

2.2

Intellectual Property Rights. Customer acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto,other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Momento reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Customer in this Agreement. Customer shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from
infringement, misappropriation, theft, misuse, or unauthorized access. Customer shall promptly notify Momento if Customer becomes aware of any infringement of the Momento’s Intellectual Property Rights
in the Software and fully cooperate with Momento in any legal action taken by Momento to enforce its Intellectual Property Rights.

2.3

Scope. Customer may: (i) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation; (ii) Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be provisioned in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Customer: (a) will be the exclusive property of Momento; (b) will be subject to the terms and conditions of this Agreement; and (c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original; (iii) Transfer any copy of the Software from one computer to another, provided that the number of computers on which the Software is installed at any one time does not exceed the number permitted under this Section.

2.4

Use Restrictions. Customer shall not, and shall require its Authorized Users not to, directly or indirectly: (i) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2; (ii) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Customer, with access to or use of the Software or Documentation; (iii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (iv) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (v) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (vi) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (vii) except as expressly set forth in Section 2, copy the Software or Documentation, in whole or in part; (viii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; (ix) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems; (x) use the Software or Documentation in violation of any law, regulation, or rule; or (xi) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Momento’s commercial disadvantage.

2.6

Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Momento and that are provided to Customer on Customer terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses and the applicable Third-Party Licenses are accessible via links therefrom. Customer is bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

3.1

Customer Compliance. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 2.4. Customer shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features. If Customer or Momento discovers any noncompliance: (i) Customer shall immediately remedy such noncompliance and provide Momento with written notice thereof. Customer shall provide Momento with all access and assistance as Momento requests to further evaluate and remedy such noncompliance; or (ii) if Customer’s use of the Software exceeds the number of copies or Authorized Users permitted under the license, Momento shall have the remedies set forth in this Section. If Momento determines that the Customer’s use of the Software exceeds or exceeded the use permitted by this Agreement then: Customer shall, within fifteen (15) days following the date of such determination, pay to Momento the retroactive License Fees for such excess use and obtain and pay for a valid license to bring Customer’s use into compliance with this Agreement. In determining the Customer Fee payable pursuant to the foregoing, (x) unless Customer can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Momento hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Customer may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement). Momento’s remedies set forth in this Section  are cumulative and are in addition to, and not in lieu of, all other remedies the Momento may have at law or in equity, whether under this Agreement or otherwise.

4.1

Maintenance and Support Services. Subject to Section 4.2, the license granted hereunder entitles Customer to the basic software maintenance and support services described from time to time on Momento’s website located at gomomento.com: (a) for one (1) year following the date set forth on the Order Form; and thereafter, solely if Customer purchases additional support services; and (b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates“) as Momento makes generally available free of charge to all Customers of the Software then entitled to maintenance and support services. Momento may develop and provide Updates in its sole discretion, and Customer agrees that Momento has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Customer acknowledges that Momento may provide Updates via download from a website designated by Momento and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. Momento has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Momento may issue as a separate or new product, and Momento may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

4.2

Limitations. Momento reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Customer’s registration of the copy of Software for which support is requested. Momento has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if Customer is in breach under this Agreement; or (iv) for any Software that has been modified other than by or with the authorization of Momento, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Momento in writing.

5.1

Collection. Customer acknowledges that Momento may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through: (i) the provision of maintenance and support services; and (ii) security measures included in the Software as described in Section 3.

5.2

Use. Customer agrees that the Momento may use such information for any purpose related to any use of the Software by Customer or on Customer’s equipment, including but not limited to: (i) improving the performance of the Software or developing Updates; and (ii) verifying Customer’s compliance with the terms of this Agreement and enforcing the Momento’s rights, including all Intellectual Property Rights in and to the Software.

6.1

Customer shall ensure that its data and use thereof complies with the terms of this Agreement and all applicable law. Customer will not store or process protected health information using the Software without first entering into a Business Associate Agreement with Momento. If Customer includes payment cardholder information in its use of the Software, Customer will comply with all requirements, policies, and procedures of the Payment Card Industry Data Security Standard (PCI DSS).

6.2

Customer is responsible for properly configuring and using the Software and taking appropriate steps to maintain appropriate security, protection, and backup of Customer data. Customer shall not disclose its user credentials to any unauthorized persons. Customer is responsible for all activities in its account, regardless of whether undertaken by Customer; Customer’s employees, contractors, or agents; or a Third Party.

7.1

Fees and Payment. Unless otherwise set forth in an Order Form, all License Fees and Support Fees shall be calculated and billed in accordance with Momento’s standard pricing (available at https://www.gomomento.com/pricing), specific to the subscription plan selected by Customer.    Momento may modify the Fees payable in accordance with updates to Momento’s standard pricing.  In the event that Momento modifies its standard pricing, the Fees payable by Customer will increase or decrease in accordance with any such modification upon the date of such modification.  All Fees are due and payable in United States Dollars within 30 days of an invoice.  Interest on late payments shall accrue from the due date at the lesser rate of 1.5% per month or the highest rate permitted by law.  Customer hereby authorizes Momento to automatically charge Customer’s credit card the applicable Fees owed as billed to Customer in accordance with Momento’s standard pricing and this Agreement.  For monthly charges, Momento may bill Customer more frequently for Fees accrued if Momento believes there is a risk of fraud or non-payment.  All amounts payable will be made without setoff or deduction and are non-refundable.  Any renewal of the license subscription or maintenance and support services hereunder shall not be effective until the Fees for such renewal have been paid in full.  Customer shall reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Momento to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.

7.1.1

On Demand Subscriptions: For On Demand (pay per use) subscriptions, Momento will bill the Fees owed by Customer at the end of each billing cycle.

7.1.2

Standard and Enterprise Subscriptions: For Standard and Enterprise subscriptions, Momento will bill the monthly Fees owed by Customer in advance at the beginning of each billing cycle. If Customer exceeds the usage limits of the applicable subscription plan, all usage by Customer in excess of the applicable subscription plan will be billed in accordance with Momento’s On Demand (pay per use) pricing and Fees, and Momento will bill such Fees owed by the Customer at the end of each billing cycle.

7.2

Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions completed by this Agreement (other than taxes based on Momento’s net income).

8.1

Definition.  “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure without a duty of confidence; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The terms (but not the existence) of this Agreement are each party’s Confidential Information.

8.2

Use; Maintenance. Neither party will use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party will disclose any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures designed to protect the secrecy, and avoid unauthorized access and use, or disclosure, of the Confidential Information of the other party, and will take at least those measures that it takes to protect its own confidential information of a similar nature. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Momento may, with Customer’s prior consent, list Customer as a customer in its promotional and marketing materials, including its website.

9.1

Term. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until terminated as set forth herein (the “Term”).

9.2

Termination. Customer may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. Either party may terminate this Agreement, effective upon written notice to the other party, if a party, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for fifteen (15) days after providing written notice thereof. Momento may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

9.3

Effect of Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Customer shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Customer’s obligation to pay all Customer Fees and Support Fees that may have become due before such expiration or termination, or entitle Customer to any refund, in each case except as expressly provided.

10.1

By Momento. Momento will (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent that Customer’s use of the Momento Software as authorized in this Agreement constitutes a direct infringement of U.S. copyright or trade secret of any third party, and (ii) pay damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Momento; provided that Customer provides Momento (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Momento in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, Momento may, at its sole option and expense: (a) procure for Customer the right to continue to use the applicable Software; (b) modify the Software to make it non-infringing; (c) replace the Software with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the applicable Software or this Agreement. Notwithstanding the foregoing, Momento will have no liability to Customer for any claim arising out of or based upon the use of the Software in combination with software, products or services not provided by Momento, Customer’s failure to use the Software in accordance with this Agreement.

10.2

Disclaimer. SECTION 9.1 STATES THE ENTIRE LIABILITY OF MOMENTO, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY MOMENTO OR ITS SOFTWARE OR TECHNOLOGY OR ANY PART THEREOF.

10.3

By Customer. Notwithstanding anything to the contrary in Section 9.1, Customer will indemnify, hold harmless, and defend or, at its option, settle, any claim brought against Momento, its affiliates, or its licensors, (i) arising from Customer’s breach of the Third-Party tTerms; or (ii) alleging that the use by or on behalf of Momento in accordance with this Agreement infringes or misappropriates any Tthird Pparty’s rights or violates applicable laws or regulations; (iii) arising from Customer’s breach of this Agreement or violation of applicable law; or (iv) arising from Customer’s data or the combination thereof with other applications, content, or processes, and Customer will pay damages finally awarded against Momento (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Momento will provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Momento may appear, at its own expense, through counsel reasonably acceptable to Customer.

11.1

Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.

11.2

Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MOMENTO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE MOMENTOS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE MOMENTO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

11.3

Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE MOMENTO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGESIN NO EVENT WILL EITHER PARTY AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THREE TIMES THE TOTAL AMOUNT PAID TO THE MOMENTO PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM. THE LIMITATIONS SET FORTH IN SECTION 10 SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12.1

Amendment. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.

12.2

Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Momento’s prior written consent, which consent Momento may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Momento’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13(e) is void. Momento may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

12.4

Export Regulation. The Software and Documentation may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.

12.5

Force Majeure. Momento will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Customer equipment, loss and destruction of property, or any other circumstances or causes beyond Momento’s reasonable control.

12.6

Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Washington in each case located in the City of Seattle and County of King County, Washington, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

12.7

Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

12.8

Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, , , refer to the Sections of, , , this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

12.9

Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section.

12.10

Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.11

U.S. Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

12.12

Successors. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

12.13

Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.