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BenefitsTec, LLC. (“BenefitsTec) provides automated software employee benefits analysis and administration in a proprietary and confidential manner (“Software”). The Software is web-based and provides various levels of access. Licensee wishes to acquire access and use of the Software. The Parties agree that BenefitsTec will provide the Software to Licensee under these Terms and Conditions.

1. Definitions.
   1. “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, rights of publicity and privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
   2. “Licensee” or “You” shall mean the party other than BenefitsTec, who has entered into this agreement.
   3. “User Accounts” shall mean employee, client, or vendor accounts that are set up for the purpose of authorizing access to the software by a registered individual.
   4. “Software” shall mean the computer software, in object code form, owned or distributed by BenefitsTec for which You are granted a license pursuant to this Agreement, and any related documentation, approved reports, instructions, user's guides, and updates provided to You by BenefitsTec, whether in printed or machine-readable form. Reports may be expanded or reduced from time to time. These reports and any additional Approved Reports may be viewed within the System provided you have appropriate user level access.
2. Proprietary Rights. All Intellectual Property Rights, title, and interest, in and to the Software, are retained by BenefitsTec or its licensors. Except for the license granted herein, You have no right, title, or interest in or to the Software and You may not copy or duplicate or reverse engineer or independently develop competing software.
3. Licensee’s rights of use. Subject to Your compliance with the terms of this Agreement, You may use the Software for the benefits related issues.
4. Restrictions on Use: You agree not to: (i) use the Software outside of the United States of America ("U.S.") without appropriate government permits or licenses; (ii) cause or allow discovery of source code in any way; (iii) cause or allow alteration or modification of the Software by You or any third parties; (iv) cause or allow You or any third party to gain access, transfer, assign, reproduce, sublicense, sell, rent, lease, distribute, or use the Software or their derivatives except as expressly set forth herein; or (v) act as a service bureau for third parties using the Software except as set forth herein.
5. Term and Termination
   1. Term and Termination. The term of this Agreement commences when you sign on and access the Software and ends when your services to the client are completed. Further, BenefitsTec may cancel this Agreement at anytime with or without notice to you by simply denying You access to the Software. You also agree that BenefitsTec has the exclusive right to determine whether any specific actions or omissions constitute a breach of this Agreement.
   2. Effects of Termination. Upon Termination of this Agreement, Your right and the rights of all Your authorized representatives to use the Software shall immediately cease. You agree that You will immediately cease use of the Software. Further You agree to uninstall the Software and destroy or delete all copies and all partial copies. You agree to have an officer of Your company, upon request of BenefitsTec, promptly certify such action in writing to BenefitsTec. Sections 2, 9, 10, and 14 of this agreement will survive termination.
6. Terms for Users.
   • You will be provided access to a User Account established by BenefitsTec. You may access the User Account only as long as this license to use the Software is in effect.
   • Title and ownership of the Software and User Accounts and all rights related thereto, including patent, trademark, and copyright related thereto are the exclusive property of BenefitsTec and/or its third-party licensors; User shall acquire the right to use the Software only in accordance with these Terms for Users. User shall not cause discovery of the source code of the Software.
   • The Software is made available without warranty of any kind including but not limited to any implied warranty of merchantability, fitness for a particular purpose or non-infringement of third-party proprietary rights and the User is responsible for the entire risk with respect to the quality, accuracy, completeness, and performance of the Software.
   • User’s use of any materials obtained by use of the Software is subject to applicable copyright laws and neither BenefitsTec nor its third-party licensors shall be liable for any infringement arising from or in connection with such use.
   • BenefitsTec shall have the right to enforce these obligations with respect to any User or to any User Account, this Agreement expressly being a third-party beneficiary contract extending its benefits and burdens to Users.
7. Records: You agree to keep complete, clear, and accurate records for at least the two prior calendar years relating to Your use of the Software pursuant to this Agreement.
8. Licensee Information. You agree to promptly notify BenefitsTec of any changes in information provided to BenefitsTec including but not limited to, change of ownership of the company, change of address, change of license contacts, or change of support contacts.
9. Right to Audit. Notwithstanding any privacy rights which might otherwise exist or apply, BenefitsTec and its agents shall have the right to audit all Licensee facilities and relevant records to ascertain compliance with the Terms and Conditions and other applicable agreements. Any such audit shall be conducted, after giving You at least ten (10) days prior notice, during regular business hours at Your facilities and shall not interfere unreasonably with Your business activities. If an audit reveals that You have violated the terms of this Agreement, then You shall pay BenefitsTec's reasonable costs of conducting the audit (including accountants and attorneys’ fees). BenefitsTec may inspect executed User agreements upon reasonable notice to You.
10. Infringement Indemnity
    1. BenefitsTec Indemnity Obligation. BenefitsTec agrees to defend and indemnify You against any and all dam­ages, costs, liabilities, expenses and settlement amounts incurred in connection with any suit, claim, or proceeding by any third party alleging that the Software furnished and used within the scope of this Agreement infringes a U.S. copyright, U.S. trademark or misappropriates a U.S. trade secret, provided that You give BenefitsTec prompt written notice of any such claim, tender the defense of any such claim to BenefitsTec, provide full co­operation for the defense of same at BenefitsTec's expense, and do not settle without BenefitsTec 's prior written ap­proval. In the event the Software is held or is believed by BenefitsTec to infringe, BenefitsTec may at its sole option and ex­pense, elect to (i) modify the Software so that it is non-infringing (ii) replace the Software with non-infringing Software which is functionally equivalent or superior in performance, (iii) obtain a license for You to con­tinue to Use the Software as provided hereunder, or (iv) terminate the license for the infringing Software.
    2. Limitations on Indemnity. The rights granted to You under this Section 10 shall be Your sole and exclusive remedy for any alleged infringement of any copyright, trademark, or other proprietary rights. BenefitsTec will have no liability if any alleged patent or copy­right infringement or claim thereof is based upon (i) the Use of the Software in connection or in combination with equipment, devices, software or data not provided by BenefitsTec (if such infringement or claim could have been avoided by the use of the Software with other equipment, devices, software or data), or (ii) Use of other than the most current release of the Software if such claim would have been avoided by Use of such release.
11. Disclaimer of Warranties. All Software is provided to You on an "AS IS" basis. You acknowledge that the performance of the Software depends substan­tially on Your ability. You further acknowledge that BenefitsTec shall not be responsible for any failure of Software to properly maintain and secure the program, its data stores, and backups. In addition You acknowledge that BenefitsTec does not warrant that the Software will meet Your requirements, that the operation of the Software will be uninterrupted and error-free, or that the Software will necessarily oper­ate in combination with hardware and/or software products not supplied by BenefitsTec. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, BENEFITSTEC MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY OTHER MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE HEREBY EXPRESSLY DISCLAIMED. BENEFITSTEC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE QUALITY, RELIABILITY, OR COMPLETENESS OF THE SOFTWARE.
    1. Limitations Of Liability. NEITHER BENEFITSTEC NOR IT’S LICENSORS SHALL BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF BENEFITSTEC HAS BEEN INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. BENEFITTEC MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS SHALL NOT EXCEED $25,000 IN THE AGGREGATE.
12. Disputes and Mediation:
1. Mediation is a process under which parties submit their dispute to an impartial, neutral mediator who will work to achieve with the parties a mutually acceptable resolution of the dispute. The mediator is not empowered to impose a solution on the parties. The parties agree to pursue in good faith the mediation of any dispute, claim, or controversy arising out of the subject matter of this agreement before resorting to arbitration or any other legal remedy. Such mediation shall be conducted under the applicable rules and procedures of the Los Angeles County Bar Association. Mediation fees, if any, shall be divided equally among the parties involved. Before the mediation begins, the parties agree to sign a document limiting the admissibility in arbitration or any civil action of anything said, any admission made, and any documents prepared, in the course of the mediation, consistent with Evidence Code § 1152.5.
2. If mediation as described above is unsuccessful, any controversy or dispute arising out of this Agreement, the interpretation of any of the provisions hereof, or the action or inaction of any party hereunder shall be submitted to arbitration in Los Angeles, California before a retired California Superior Court or Court of Appeal judge selected by the ADR Services, Inc. (“ADR Services”) who shall administrate the controversy or dispute. If the parties cannot agree to an arbitrator, ADR Services shall be empowered to make the selection. The arbitration shall be held before a single arbitrator and shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the ADR Services Standard Arbitration Rules. The arbitration shall be commenced by filing a demand for arbitration with the administrator of ADR Services and serving the demand on the opposing party. The responding party may file a response and/or a counterclaim within fifteen (15) days. If no response is filed, all the allegations of the demand shall be deemed denied. The parties shall select an arbitrator by mutual agreement through ADR Services within thirty (30) days of the date the demand for arbitration is filed. If the parties are unable to agree on the selection of an arbitrator within such time, the administrator of ADR Services shall select an independent arbitrator. The costs of the arbitration, including the arbitrator’s fees, shall be borne equally by the parties to the arbitration, unless the arbitrator orders otherwise. The parties elect to provide for discovery in the arbitration proceedings pursuant to California Code of Civil Procedure Section 1283.1. The provisions of California Code of Civil Procedure Section 1285.05 governing discovery are hereby incorporated into and made a part of this Agreement. The details and/or existence of all disputes to be arbitrated hereunder, as well as the arbitration proceedings themselves, shall be kept strictly confidential and shall not be disclosed or discussed with any third party except for the party’s professional advisors, or as otherwise permitted by legal privilege, required by governmental compulsion or as necessary to obtain judicial enforcement thereof. The prevailing party shall be permitted to recovery its reasonable attorneys’ fees and all other costs of the mediation and subsequent arbitration.
13. Confidentiality: Each party shall hold in confidence all materials or information which it knows or should know is confidential, which is disclosed to it in confidence, or which is marked as confidential or proprietary (“Confidential Information”), including but not limited to knowledge of the Software. Each party agrees to take precautions to prevent any unauthorized disclosure or use of Confidential Information consistent with precautions used to protect such party’s own Confidential Information, but in no event less than reasonable care. The obligations of the parties hereunder shall not apply to any materials or information which a party can demonstrate, through documented evidence (a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (b) is known by the receiving party at the time of receiving such information as evidenced by its records; (c) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (d) is independently developed by the receiving party without use of any Confidential Information; or (e) is the subject of a written permission to disclose provided by the disclosing party. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided, however, that the responding party shall first have given notice to the other party hereto in order that such other party may have sufficient time to respond appropriately.
14. Governing Law and venue: California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, will govern This Agreement. The parties shall bring all disputes, actions, claims, or causes of action related to this Agreement or in connection with the Software only in the federal and state courts located in California.
15. No joint venture: No joint venture, partnership, employment, or agency relationship exists between You and BenefitsTec as a result of this agreement or use of the Software.
16. Injunctive Relief: The parties agree that a breach of Section 13 (“Confidentiality”) may result in irreparable and continuing damage for which there will be no adequate remedy at law, and each party shall be entitled to seek injunctive relief and/or decree for specific performance, and such other relief as may be proper in the superior court of Los Angeles County notwithstanding Section 12 above.
17. Force Majeure: Either party will be excused for any delay or failure in performance hereunder (except for the payment of money) caused by any occurrence or contingency beyond its reasonable control. The obligations and rights of the party so excused will be extended on a day-to-day basis for the time-period equal to the period of such excusable delay.
18. General: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of BenefitsTec to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BenefitsTec in writing.