This End User Service Agreement, including the Order Form which by this reference is incorporated herein (collectively, this “Agreement”), is a binding agreement between Mutare, Inc. (“Mutare”) and (“Customer”) 

BY ACCESSING OR USING THE VOICE TRAFFIC FILTER SOFTWARE AS A SERVICE, THE PERSON DOING SO ACKNOWLEDGES THAT SUCH PERSON HAS READ THIS AGREEMENT, THAT SUCH PERSON UNDERSTANDS IT, AND THAT SUCH PERSON ACCEPTS AND AGREES TO BE BOUND BY ALL OF ITS TERMS. 

MUTARE PROVIDES THE SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY EXECUTING THIS AGREEMENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENT ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, MUTARE WILL NOT PROVIDE THE SERVICE TO CUSTOMER AND YOU MUST NOT USE THE SERVICE.

1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Authorized Users” means solely those individuals authorized to use the Service pursuant to the license granted under this Agreement, as set forth on the Order Form.

“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.

“Service Fees” means the license fees, including all taxes thereon, paid or required to be paid by Customer for the service granted under this Agreement.

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

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

“Service” means Mutare’s Voice Traffic Filter software subscription and any supporting user manuals and any other materials provided by Mutare, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Service, for which Customer is paying a fee,  as expressly set forth in the Order Form.

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

2. Service Grant and Scope. Subject to and conditioned upon Customer’s payment of the Fees and Customer’s strict compliance with all terms and conditions set forth in this Agreement, Mutare hereby grants Customer access to the Service during the Term to use for Customer’s internal business purposes, solely by and through its Authorized Users as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement.

3. Use Restrictions. Customer shall not, and shall require its Authorized Users not to, directly or indirectly:

1. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Customer, with access to or use of the Service;
2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Service or any part thereof;
3. combine the Service or any part thereof with, or incorporate the Service or any part thereof in, any other programs;
4. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service, or any features or functionality of the Service, 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;
5. use the Service in violation of applicable law, regulation, or rule; or
6. use the Service for purposes of competitive analysis of the Service, the development of a competing software product or service, or any other purpose that is to the Mutare’s commercial disadvantage.

4. Maintenance and Support.

1. Subject to Section 7(c), the license granted hereunder entitles Customer to the basic software maintenance and support services described on the Order Such support services shall be provided on the terms and conditions set forth in the Order Form.
2. Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Mutare makes generally available free of charge to all Customers of the Service then entitled to maintenance and support services. Mutare may develop and provide Updates in its sole discretion, and Customer agrees that Mutare has no obligation to develop any Updates at all or for particular Maintenance and support services do not include any new version or new release of the Service that Mutare may issue as a separate or new product, and Mutare may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion
3. Mutare has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Service; (ii) for any copy of Service for which all previously issued Updates have not been installed; or (iii) if Customer is in breach under this Agreement.

5. Intellectual Property Rights. Customer acknowledges and agrees that the Service is provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Service 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 Mutare reserves and shall retain its entire right, title, and interest in and to the Service and all Intellectual Property Rights arising out of or relating to the Service, except as expressly granted to the Customer in this Agreement. Customer shall safeguard all Service materials from infringement, misappropriation, theft, misuse, or unauthorized access. Customer shall promptly notify Mutare if Customer becomes aware of any infringement of the Mutare’s Intellectual Property Rights in the Service and fully cooperate with Mutare in any legal action taken by Mutare to enforce its Intellectual Property Rights.

6. Payment. All Service Fees are payable in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth in the Order Service Fees are exclusive of sales, use, and withholding taxes, duties, levies and any similar charges of any governmental authority (“Transaction Taxes”). Customer will reimburse Mutare, or pay directly, all Transaction Taxes. If Customer determines in good faith that is exempt from applicable Transaction Taxes, Customer will provide Mutare with a timely and complete exemption certificate, should one be required by the applicable taxing jurisdiction.

7. Term and Termination.

1. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”).
2. Customer may terminate this Agreement by ceasing to use the Service.
3. Mutare may terminate this Agreement, effective upon written notice to Customer, if Customer, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after Mutare provides written notice thereof.
4. Mutare 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.

8. Limited Warranties, Exclusive Remedy, and Disclaimer.

1. Solely with respect to Service for which Mutare receives a License Fee, Mutare warrants that, for a period of thirty (30) days following the license date set forth on the Order Form: (i) any media on which the Service is provided will be free of material damage and defects in materials and workmanship under normal use; and (ii) the Service will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.
2. The warranties set forth in Section 12(a) will not apply and will become null and void if Customer breaches any material provision of this Agreement, or if Customer, any Authorized User, or any other Person provided access to the Service by Customer or any Authorized User, whether or not in violation of this Agreement misuses the Service.
3. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12(a), THE SERVICE IS PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDERAPPLICABLE LAW, MUTARE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, 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, MUTARE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SERVICE, 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.

9. Limitation of Liability. To the fullest extent permitted under applicable law:

1. IN NO EVENT WILL MUTARE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICE; 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 MUTARE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. IN NO EVENT WILL MUTARE’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO MUTARE PURSUANT TO THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE CLAIM ACCRUED.
3. THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

10. Compliance with Laws. The Customer shall comply with all applicable laws, regulations, and rules, and complete all required undertakings required thereby, in connection with its use of the Service.

11. Miscellaneous.

1. 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 Illinois without giving effect to any choice or conflict of law provision or 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 Illinois in each case located in the City of Chicago, Cook County, Illinois, 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.
2. Mutare 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 Mutare’s reasonable control.
3. 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.
4. This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto, constitutes the sole and entire agreement between Customer and Mutare with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
5. 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 Mutare’s prior written consent, which consent Mutare may give or withhold in its sole 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 Mutare’s prior written consent is required. Any purported assignment, delegation, or transfer in violation of this Section is void. Mutare 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.
6. 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.
7. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party 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.
8. 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.
9. For purposes of this Agreement, (i) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a 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 and all Annexes, Schedules, and Exhibits 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.