1.1. “API Information” means the standard applications programming interface information generally provided by BridgePoint to licensees of the Licensed Materials that specifies the requirements for interfacing to the Software.
 

1.2. “Authorized/Permitted User” means any Personnel who installs or accesses, or is authorized to install or access, any of the Licensed Materials through a login to the Software provided by Licensee on and through appropriate hardware owned or leased and controlled by either the Licensee or individual Personnel. 
 

1.3. “BridgePoint Materials” means any materials distributed or made available by BridgePoint, directly or indirectly, including Software, User Documentation, modifications or derivative works of the Software and Excluded Materials (whether or not licensed to Licensee). 
 

1.4. “Consulting Services” means services provided or made available by BridgePoint, including support services, hosting, storage, simulation and testing services, training and other benefits, pursuant to executed Statements of Work (as defined in Section 3 below). 
 

1.5. “Development Materials” means SDKs and other toolkits, libraries, scripts, reference or sample code and similar developer materials included in the Licensed Materials. For the avoidance of doubt, “Development Materials” does not include any of Licensee's confidential information, homecare or administrative worksheets or other templates provided by Licensee.
 

1.6. “Excluded Materials” means any materials, including Software, User Documentation, computer programs, modules or components, functionality or features of a computer program, explanatory printed or electronic materials, content or other materials, if any, that may be provided or become available to Licensee, by any means, or that are on any media delivered to Licensee, including those items included in any download of the licensing mechanism used by BridgePoint, for which (a) Licensee does not have a License Identification, or (b) Licensee has not paid (and continued to pay) the applicable fees. 
 

1.7. “License Identification” means the particular license features set forth on the Summary of Terms, as the same may be amended and supplemented from time to time by the parties. 
 

1.8. “Licensed Materials” means (a) Software and User Documentation (i) downloaded by clicking on the “I accept” button or other button or mechanism associated with this Agreement or by otherwise indicating assent to this Agreement, (ii) delivered prepackaged with this Agreement, or (iii) otherwise accompanied by this Agreement and (b) BridgePoint Materials that Licensee receives or retains pursuant to the Subscription exclusive of Excluded Materials. For the avoidance of doubt, “Licensed Materials” does not include any of Licensee's confidential information, homecare or administrative worksheets or other templates provided by Licensee.
 

1.9. “Permitted Number” means a maximum number specified on the License Identification (e.g., number of Authorized Users, computers, sessions) provided that where no Permitted Number is specified, the Permitted Number will be one.
 

1.10. “Personnel” means (a) Licensee’s individual employees and (b) individual persons who are independent contractors working for Licensee and who install and access the Licensed Materials. 
 

1.11. “Software” means a computer program, or a module or component of a computer program, distributed or made available by BridgePoint and set forth on a License Identification including any error corrections, patches, service packs, updates and Upgrades to, and new versions of, the Licensed Materials that BridgePoint provides or makes available to Licensee under Licensee’s then-current license.
 

1.12. “Subscription” is the program identified on the Summary of Terms of this Agreement pursuant to which BridgePoint provides the Software, including updates and Upgrades to the Software and certain other support, services and training relating to BridgePoint Materials as set forth on the Summary of Terms, exclusive of Consulting Services. 
 

1.13. “Territory” means the area specified in the License Identification; provided that where no Territory is specified then the Territory means the United States.
 

1.14. “Upgrade” means a full commercial version of Licensed Materials (a) that is a successor to or substitute for a qualifying prior release (and may incorporate error corrections, patches, service packs and updates and upgrades to, and may enhance or add to the features or functionality of, the prior release) or different release of Licensed Materials, (b) that is provided to a Licensee who has previously licensed the applicable qualifying prior or different release from BridgePoint and (c) for which BridgePoint generally charges a separate fee or makes available solely to customers under Subscription. Whether BridgePoint Materials are an Upgrade may be specified in the applicable License Identification and whether Licensee has met the qualifications to license particular BridgePoint Materials as an Upgrade is determined by BridgePoint. 
 

1.15. “User Documentation” means the explanatory or instructional materials for Software, whether in printed or electronic form, that BridgePoint incorporates in the Software or its packaging or otherwise provides to its licensees. 
 

1.16 “Compliance Requirements” means Licensee’s written requirements provided to BridgePoint regarding Licensee’s compliance directions to be included in the Services, as specified in the most current approved version of the User Requirements Document (as related to the current released version of the Licensed Materials licensed by Licensee under this Agreement). All such Licensee compliance requirements shall be at the written direction of Licensee

 

2.1. License Grant. Subject to the terms and conditions of this Agreement, including the License Features identified on the License Identification and the payment of the applicable fees, BridgePoint grants Licensee a nonexclusive, nonsublicensable, nontransferable, limited license to use the Licensed Materials and to access its secure website for purposes of support, management or related matters pertaining to the Licensed Materials and to the extent third party licenses are required, BridgePoint shall acquire for the benefit of Licensee or pass through to Licensee such rights to third party materials (collectively, the “License”).
 

2.2. Permitted Users. Licensee may permit the Licensed Materials to be accessed only by Permitted Users in the Territory, each as set forth in the License Identification, for the internal business purposes of Licensee. Licensee will be responsible for compliance with this Agreement by Licensee’s Personnel and any other persons who may have access to the BridgePoint Materials through Licensee. 
 

Subject to the terms and conditions of this Agreement, including the payment of the applicable fees, BridgePoint will provide the Consulting Services indicated on the License Identification or an executed Statement of Work in the form attached hereto as Exhibit A (each, a “SOW” or “Statement of Work”)
 

4.1. Prohibited Uses. The License does not permit use of the Licensed Materials in a manner that would substitute for a license or purchase of any portion of the Licensed Materials by a third party, for the purpose of a service bureau or for the purpose of designing, developing, modifying, or improving third party software or products. In addition, no license is granted (i) to Excluded Materials, (ii) to redistribute, rent, loan, lease, resell, sublicense, transfer or otherwise provide all or any portion of the BridgePoint Materials, (iii) except as otherwise expressly provided, to install or access or allow the installation of or access to the BridgePoint Materials over the Internet or other non-local network, (iv) to remove, alter or obscure any proprietary notices, labels or marks in the BridgePoint Materials, (v) to decompile, disassemble or otherwise reverse engineer the BridgePoint Materials, or (vi) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the BridgePoint Materials for any purpose.  Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any installation of, or access to, the Licensed Materials outside of the scope of the applicable License, shall constitute infringement of BridgePoint’s intellectual property rights as well as a breach of this Agreement. Licensee will notify BridgePoint promptly of any such Unauthorized Uses or other unauthorized installation or access.
 

4.2. APIs. Licensee acknowledges and agrees that any API Information and Development Materials, unless otherwise expressly specified by BridgePoint (a) are confidential and proprietary to BridgePoint, (b) may not be distributed, disclosed or otherwise provided to third parties, and (c) may be used in conjunction with and for Licensee’s own authorized use of the Licensed Materials to which the API Information or Development Materials relate, such as the development and support of applications, modules and components to operate on or with such Licensed Materials. Notwithstanding the foregoing, if Licensee develops any such applications, modules and components in accordance with this Agreement, nothing in this Agreement will prohibit Licensee from using such applications, modules and components with or porting such applications, modules and components to other software and hardware, if such applications, modules and components (i) do not incorporate or embody any Development Materials or other BridgePoint Materials (other than the API Information that was used in the development thereof in accordance with this Agreement) and (ii) do not disclose the API Information.
 

4.3. Circumvention. Licensee may not utilize any equipment, device, software, or other means to circumvent, or remove (a) any form of technical protection used by BridgePoint in connection with, the BridgePoint Materials or (b) any usage restrictions, or to enable functionality disabled by BridgePoint, in connection with the Excluded Materials. Licensee may not bypass or delete any functionality or technical limitations of the BridgePoint Materials that are designed to prevent or inhibit the unauthorized copying of, installation or access to the Excluded Materials. 
 

The Licensed Materials are and shall at all times remain the property of BridgePoint with all rights, including intellectual property rights, reserved.  BridgePoint retains title to and ownership of, and all other rights with respect to, the BridgePoint Materials and all copies thereof, including any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Licensed Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the BridgePoint Materials are licensed, not sold, and that rights to install and access the Licensed Materials are acquired only under the license from BridgePoint. The structure and organization of Software included in the BridgePoint Materials, any source code or similar materials relating to such Software, any API Information and Development Materials and any other Licensed Materials valuable trade secrets of, and confidential or proprietary information of, BridgePoint and its suppliers, and (a) may not be distributed, disclosed or otherwise provided to third parties, and (b) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Licensed Materials.

 

Licensee acknowledges and agrees that Licensee and third parties acting on Licensee’s behalf (“Disclosers”) may provide, and BridgePoint and third parties acting on behalf of BridgePoint (“Recipients”), may obtain, certain information and data with respect to Licensee including Personally Identifiable Information. Licensee hereby consents to BridgePoint maintaining, such information and data in conformity with BridgePoint’s policies on privacy and data protection which are in accordance with commercially reasonable industry standards, as such policies may be updated from time to time, including BridgePoint’s Privacy Policy available at www.digitalworkorder.com/privacypolicy.aspx. Without limiting the foregoing, Licensee acknowledges and agrees that BridgePoint may from time to time prompt Disclosers to provide express agreement to the terms of BridgePoint’s Privacy Policy or express agreement to specific uses of information and data.
 

7.1. Payment. Licensee shall pay the fees as set forth on the License Identification or an applicable Statement of Work. Subsequent Subscription fees, unless otherwise indicated in the License Identification, are payable in advance each month and payment is due on the first day of each calendar month. Undisputed consulting Services fees are payable within 30 days of BridgePoint’s invoice, unless otherwise provided on the Statement of Work.
 

7.2. Late Payment/Disputed Amounts. If any undisputed fee due hereunder remains unpaid for 60 days after its due date, Licensee may be subject to a finance charge payable to BridgePoint of the lesser of 1.5% per month or the maximum rate allowable per applicable law on all amounts past due which are not in dispute from the date that such amount became due and payable. A fee shall be deemed undisputed unless Licensee notifies BridgePoint in writing within 60 days of receipt of the applicable invoice, describing in reasonable detail the nature of the dispute, pays all undisputed amounts timely and cooperates in good faith to resolve such dispute as promptly as practical. Failure to resolve non-payments may result in cancellation of license use.  
 

8.1. Licensee shall Licensee shall provide its Compliance Requirements (as defined in Subsection 1.16 of this Agreement)  and such Compliance Requirements shall be at the direction of Licensee. Licensee represents and warrants that it shall complete the necessary forms for the performance of BridgePoint under this Agreement and in no event, shall any such forms created and provided by Licensee to BridgePoint contain any Personally Identifiable Information (as defined by applicable state and federal laws).

 

8.2. Limited Warranty. BridgePoint warrants that, as of the date on which the Licensed Materials are delivered to Licensee and throughout the Term of the License (the “Warranty Period”), the Licensed Materials will provide the general features and functions described in the original User Documentation portion of the Licensed Materials, meet the deliverables as provided for in the SOW and be non-infringing. BridgePoint's entire liability and Licensee’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be to attempt to correct or work around errors. If the Licensed Materials remain non-conforming after such efforts, provided that non-conformance of such efforts are not a result of limitations introduced by changes in the operating systems of the devices where the software is installed, then BridgePoint shall refund the license fees, if any, paid by Licensee during and after the non-conformance period, and any Development and Deployment Fee paid by Licensee during and after the non-conformance period, and terminate this Agreement or the License specific to such Licensed Materials.  Such refund is subject to the return, during the Warranty Period, of the BridgePoint Materials, with a copy of Licensee’s License Identification, to BridgePoint. Prior to each release of software, BridgePoint will notify Licensee of the minimum supported operating systems for both iOS and Android.  Minimum supported operating systems are set by Apple and Google stores respectively. Licensee is responsible for ensuring the users comply with the minimum required operating system on the mobile device in use. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. BRIDGEPOINT DOES NOT SEEK TO LIMIT LICENSEE’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. 
 

8.3. Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIDGEPOINT MAKES, AND LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY BRIDGEPOINT MATERIALS, SUPPORT, SUBSCRIPTION OR CONSULTING SERVICES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE BRIDGEPOINT MATERIALS, SUPPORT, SUBSCRIPTION OR SUPPORT SERVICES AND THEIR FEATURES OR FUNCTIONALITY IN THE LICENSED MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, BRIDGEPOINT DOES NOT WARRANT: (A) THAT THE OPERATION OR OUTPUT OF THE LICENSED MATERIALS, THE SUBSCRIPTION OR CONSULTING SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE, WHETHER OR NOT UNDER SUBSCRIPTION OR SUPPORT BY BRIDGEPOINT OR ANY THIRD PARTY; (B) THAT ERRORS WILL BE CORRECTED BY BRIDGEPOINT OR ANY THIRD PARTY; OR (C) THAT BRIDGEPOINT OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
 

8.4. Limitation on Type and Amount of Liability. IN NO EVENT WILL BRIDGEPOINT HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). IN ADDITION, THE LIABILITY OF BRIDGEPOINT ARISING OUT OF OR RELATING TO ANY BRIDGEPOINT MATERIALS, SUBSCRIPTION OR CONSULTING SERVICES WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE FOR SUCH BRIDGEPOINT MATERIALS, SUBSCRIPTION, OR CONSULTING SERVICES, RESPECTIVELY IN THE CALENDAR YEAR IN WHICH THE DAMAGE OCCURRED.    
 

8.5. Application of and Basis for Limitations. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF BRIDGEPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. ALSO, LICENSEE AGREES THAT THE LICENSE, SUBSCRIPTION AND CONSULTING SERVICES FEES AND OTHER FEES CHARGED BY BRIDGEPOINT AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES. 
 

9.1. Term. Subject to the payment of all applicable fees, and Licensee’s continued compliance with this Agreement, the Term (a) of the License granted hereunder for Licensed Materials and the Consulting Services to be provided hereunder shall be as set forth on the applicable Summary of Terms or SOW; and (b) of this Agreement shall commence on the Effective Date and shall continue until the termination of all Licenses granted hereunder. 
 

9.2. Renewal. Unless either party gives notice not less than 60 days prior to the termination date, this Agreement will not terminate but will instead renew for consecutive annual periods (each, a “Renewal Term” and together with the Initial Term, the “Term”).
 

9.3. Termination. This Agreement, the License and the provision of Consulting Services relating to the Licensed Materials may be terminated by: (a) either party, if the other party is in breach of this Agreement and fails to cure such breach within 30 days after written notice of the breach; (b) BridgePoint upon seven days prior notice, if Licensee is in breach of Section 2; (c) either party, if the other party becomes subject to bankruptcy proceedings, becomes insolvent, makes an arrangement with its creditors or goes into liquidation; or (d) Licensee, for whatever reason may terminate prior to the end of the Initial Term or Renewal Term upon payment of  amount owed BridgePoint as of the termination date. 
 

9.4. Suspension. As an alternative to termination, BridgePoint may suspend the License, the Subscription or the provision of Consulting Services, if Licensee fails to make a payment to BridgePoint or otherwise fails to comply with the provisions of this Agreement upon written notice to Licensee. Such suspension will be reversed immediately upon the parties’ resolution of the reason for BridgePoint's suspension.
 

9.5. Effect of Termination of Agreement or License. Upon termination or expiration of this Agreement, the Licenses granted hereunder will terminate. Upon termination or expiration of any License, Licensee must cease all use of BridgePoint Materials to which such License applies and immediately uninstall all copies of the BridgePoint Materials.  At BridgePoint’s request, Licensee agrees to destroy or return to BridgePoint all BridgePoint Materials and to certify such return or destruction in writing. If Licensee’s Subscription is terminated or expires, but this Agreement and the License as to the Licensed Materials remains in effect, any rights of Licensee based on the Subscription will terminate. 
 

10.1. Notices. Notices in connection with this Agreement by either party will be in writing and will be sent by postal service, or a delivery service (such as UPS, FedEx or DHL) to the other party’s address set forth on the signature page. Notices will be effective in the case of notices by mail or delivery service, five days after sending by regular post or delivery service to the address provided. 
 

10.2. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois without reference to the conflicts-of-laws rules thereof.  In addition, each party agrees that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) DuPage County, Illinois or the Northern District of Illinois. Nothing in the foregoing will prevent BridgePoint from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur. The provisions of the United Nations Convention on Contracts for the International Sale of Goods of 1980 shall not apply to this Agreement. 
 

10.3. No Assignment; Insolvency. Neither party may assign this Agreement or any rights hereunder  without the non-assigning party's prior written consent, which shall not be unreasonably withheld, except this Agreement may be assigned by BridgePoint in whole without such consent to the successor in interest to substantially all of the business and assets of BridgePoint. In the event that Licensee is subject to a sale or merger to a successor in interest, BridgePoint will work in good faith, as commercially reasonable, with Licensee to determine the appropriate rights that can be granted with such sale or merger in order for BridgePoint to protect its intellectual property provided under this Agreement as part of its valuable business assets. BridgePoint shall use commercially reasonable efforts to allow for such assignment taking into consideration the intellectual property and other commercially reasonable protections it needs in order to consent to such assignment This Agreement will be binding upon, inure to the benefit of, and be enforceable by, the respective successors and assigns in the event of a permitted assign of the parties hereto In the context of any bankruptcy or similar proceeding, this Agreement is and will be treated as an executory contract of the type described by Section 365(c)(1) of Title 11 of the United States Code and may not be assigned without prior written consent, which shall not be unreasonably withheld.
 

10.4. Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be deemed modified in such jurisdiction to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties and will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction. 
 

10.5. No Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed by authorized representatives on behalf of both parties. No express or implied waiver will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach. 
 

10.6. Force Majeure. BridgePoint will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God or other causes beyond BridgePoint's reasonable control. 
 

10.7. UCITA. BridgePoint and Licensee agree that the provisions of the Uniform Computer Information Transaction Act (“UCITA”) or any version, adopted by any jurisdiction in any form shall not apply to the transactions between the parties. If applicable, the parties agree to waive and opt out of any purported application of the UCITA during the term hereof.
 

10.8 Export Control. Licensee acknowledges and agrees that the BridgePoint Materials and Consulting Services (including any data submitted by Licensee and any Licensee-specific output) are only authorized by BridgePoint for use in the United StatesSoftware is consistent with all applicable U.S. laws.  Licensee agrees that the BridgePoint Materials will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the BridgePoint Materials are identified as export controlled items under the Export Laws, Licensee represent and warrants that Licensee, and any of its users, is not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that Licensee are not otherwise prohibited under the Export Laws from receiving the BridgePoint Materials. All rights are granted to Licensee hereunder on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.
 

10.9 Taxes. BridgePoint shall not be liable for any taxes, including, (a) withholding, value added, personal property, excise, export, import or franchise taxes, (b) taxes based upon sales or use, whether domestic or foreign, or (c) levies, fees, tariffs, duties or charges (“Taxes”) incurred in each case in connection with this Agreement. Licensee shall indemnify and hold BridgePoint harmless with respect to all Taxes incurred in connection with this Agreement. Licensee agrees to pay the full amount of any invoice delivered to Licensee in accordance with the terms hereof without deduction of, or holdback for, Taxes. Licensee shall not be responsible for taxes or fees based on BridgePoint’s net income. Each party will provide tax information or tax documents reasonably requested by the other party, and promptly notify the other of any claim for taxes asserted with respect to this Agreement.
 

10.10 Indemnification.  Licensee will defend, indemnify and hold harmless BridgePoint and its directors, officers and employees, from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) caused by any action or inaction of Licensee; alleged or actual third party claims of infringement or misappropriation based on Licensee's enjoyment of the granted License under this Agreement or other breach of this Agreement by licensee.

BridgePoint will defend, indemnify and hold harmless Licensees and its directors, officers and employees, from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) caused by any action or inaction of BridgePoint; alleged or actual third party claims of infringement or misappropriation based on Licensee's enjoyment of the granted License under this Agreement or other breach of this Agreement by BridgePoint.

 

10.11 Independent Contractor. For all purposes hereof, and in the performance of its duties and obligations pursuant to this Agreement, BridgePoint is and shall remain an independent contractor and nothing herein shall be deemed or construed to create an employer-employee, joint venture or partnership relationship between BridgePoint and Licensee. Nothing herein shall be deemed or construed to create an employment relationship between Licensee and any employee of BridgePoint.
 

10.12 Non-Solicitation. During the Subscription or the term of the Consulting Services, if later, and for a period of 12 months thereafter, neither party shall solicit or use the services of any current or former employee, directly or indirectly, as an employee, consultant, independent contractor or agent, provided, however, that the foregoing shall not apply to solicitations or hiring as part of a general employment solicitation not targeted at employees of the other party. For purposes hereof, a former employee shall be limited to an individual that was employed by a party during the 12 month period preceding the date of solicitation at issue and was not terminated by such party.
 

10.13 Licensee Data. The parties acknowledge that, in the course of Licensee access and use of the Licensed Materials, certain data from Licensee will be hosted within Microsoft’s Azure Cloud Services (“Licensee Data”).  Licensee Data may be accessed and used by BridgePoint to (a) initiate and continue Licensee use of and access to the Software, (b) provide Consulting Services and (c) otherwise effect the transactions contemplated by this Agreement.  Licensee shall be responsible for providing any notices and obtaining any consents necessary for Licensee Data to be used or disclosed in connection with the Licensed Materials and the transactions contemplated by this Agreement. Nothing in this Agreement shall be construed as granting to any such right, title and interest in or to the Licensee Data to BridgePoint. 
 

10.14 Audit Rights. BridgePoint shall have the right, at its expense and upon reasonable notice to Licensee, to audit Licensee’s use of the Software to determine compliance with this Agreement. Licensee shall have the right, at its expense and upon reasonable notice to BridgePoint, to audit software and software process.  Any costs associated with a party’s audit are the responsibility of auditing party. The non-auditing party shall cooperate with any audit and any reasonable request made during such audit.   
 

10.15 Survival. Those sections which by their nature are intended to survive termination or expiration of this Agreement shall so survive.
 

10.16 Entire Agreement. This Agreement, including each License Identification and SOW executed in connection herewith, constitute the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof. Any modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of each Party.