THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS BETWEEN NAUTILUS HYOSUNG AMERICA, INC. (“NHA”), AND YOU (“YOU” OR “YOUR” MEANS THE LEGAL ENTITY IDENTIFIED IN THE REGISTRATION PROCESS THAT YOU ARE AUTHORIZED TO REPRESENT AND WHICH LICENSES THE ON-PREM SOFTWARE (AS DEFINED BELOW) AND/OR CLOUD SERVICES (AS DEFINED BELOW)). 

IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ON-PREM SOFTWARE OR THE CLOUD SERVICES. 

BY ACCESSING OR USING THE ON-PREM SOFTWARE OR THE CLOUD SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND REPRESENT AND WARRANT TO NHA THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND THAT YOU ARE AT LEAST 18 YEARS OF AGE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND TO THIS AGREEMENT THE LEGAL ENTITY THAT IS ACCESSING OR USING THE ON-PREM SOFTWARE OR THE CLOUD SERVICES. YOUR USE OF THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS EULA, REGARDLESS OF WHETHER YOU ACQUIRED THIS SOFTWARE DIRECTLY FROM NHA OR THROUGH A RESELLER, DISTRIBUTOR, OR THIRD PARTY. IF YOU DO NOT HAVE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY, PLEASE DO NOT ACCESS OR USE THE ON-PREM SOFTWARE OR THE CLOUD SERVICES. 

The terms of this Agreement may be amended, supplemented or modified at any time by NHA, in its sole discretion, effective as follows: (a) NHA will post the revised version of this Agreement on the NHA website at https://hyosungamericas.com/our-resources/policies/end-user-license-agreement/; (b) NHA will implement an acceptance process requiring you to click “I Accept” to the amended, supplemented or modified Agreement; or (c) NHA may provide such other notice as NHA may elect in its sole discretion. If any future changes to this Agreement are not acceptable to you, or cause you to no longer be in compliance with this Agreement, you may terminate this Agreement in accordance with Section 7.4 below. Your continued access and use of the On-Prem Software or Cloud Services after the new terms take effect, shall conclusively demonstrate your acceptance of such changes. 

1. Registration and Submission of an Order. Access and use of the On-Prem Software or Cloud Services requires your advanced registration and submission of an Order. You agree that you must register and submit an Order to NHA prior to clicking the “I ACCEPT” button, and prior to access and use of the On-Prem Software or Cloud Services. Otherwise, you will not be able to access and use the On-Prem Software or Cloud Services. You agree to keep your registration information accurate and complete and promptly update your registration data with NHA as necessary to keep it accurate, current and complete. NHA may provide you with account and product validation number(s), if any, and issue you a confidential site (Internet protocol) address and passwords. Enabling others to use your product number(s), validation number(s), or passwords, is strictly prohibited. 

2. Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings: 

2.1 “Client Data” means all data, imagery, information and other content provided by or on your behalf for use in connection with the On-Prem Software or Cloud Services, including transaction data generated through Customer use of the Equipment to the extent controlled by you. Client Data excludes Software telemetry, system logs, diagnostic information, aggregated/anonymized analytics and NHA Confidential Information and Trade Secrets. 

2.2 “Cloud Services” means the NHA SaaS Services and the Third Party SaaS Services identified on an Order and licensed to you pursuant to this Agreement. 

2.3 “Confidential Information” means any information, reports, data, records and other materials obtained by the Receiving Party from the Disclosing Party prior to or during the Term that has value to the Disclosing Party and is not generally known to its competitors and (a) has been marked as confidential; (b) whose confidential nature has been made known to the Receiving Party; or (c) due to its character and nature, a reasonable person under like circumstances would recognize to be or otherwise treat as confidential. Notwithstanding any other provision of this Agreement, (i) the Software, On-Prem Software, Cloud Services, System, Documentation, and the terms and conditions of this Agreement (including, without limitation, pricing) shall constitute the Confidential Information of NHA; and (ii) the Client Data constitutes the Confidential Information of Client. 

2.4 “Customers” means the general public who access and use the Equipment to undertake banking and financial transactions using the features and functionality of the On-Prem Software and Cloud Services. 

2.5 “Disclosing Party” means the party, whether that’s you or NHA, disclosing Confidential Information or Trade Secrets of the other party. 

2.6 “Documentation” means the user manual or other documentation describing the On-Prem Software and Cloud Services provided by NHA to you hereunder, as modified by NHA or NHA’s third party providers from time to time. Information contained on publicly available portions of NHA’s website(s) or in marketing materials shall not constitute Documentation. 

2.7 “Effective Date” means the earlier of (a) the date you click “I ACCEPT”; or (b) the date you begin accessing or using the On-Prem Software or Cloud Services. 

2.8 “Equipment” means the Automated Teller Machines and the server grade computers which have been formally approved by NHA to be used in conjunction with the On-Prem Software and Cloud Services. 

2.9 “Intellectual Property Rights” means, on a world-wide basis, any and all (a) rights associated with works of authorship, including without limitation, copyrights, copyrightable rights, moral rights and mask work rights; (b) trademark, service mark and trade name rights and any similar rights recognized under applicable law; (c) rights in confidential information and trade secret; (d) patents and patentable rights; (e) all rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology; (f) all other intellectual and industrial property rights of every kind or nature, whether arising by operation of law, contract, license or otherwise; and (g) all international, national, foreign, state and local registrations, applications for registration and any renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisions, reissues, substitutions and reexaminations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of the foregoing (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions; to sue for all past, present and future infringements or other violations relating thereto; and to settle and retain all proceeds from any such actions). 

2.10 “Marks” means your trademarks, service marks or trade names. 

2.11 “NHA SaaS Services” means the NHA Software that is hosted on the System and that is accessed and used via the Equipment or a web-based interface (as applicable) on a Software-as-a-Service subscription basis. 

2.12 “On-Prem Software” means Software that is installed, accessed and used on the Equipment. 

2.13 “Order(s)” means the order completed by you during the registration process described in Section 1 above. Each Order shall specify the On-Prem Software and Cloud Services being licensed, the licensing parameters, the term of the Order, and the applicable fees and other charges. 

2.14 “Receiving Party” means the party, whether that’s you or NHA, receiving Confidential Information or Trade Secrets of the other party. 

2.15 “Software” means the object-code version(s) only of NHA’s or its third party providers’ proprietary software programs and Updates to such software. 

2.16 “System” means the software and the server grade computers and related networks maintained by or on behalf of NHA and its third party providers to (a) host the Software and Client Data; and (b) provide the Cloud Services to you, all as hereafter modified, enhanced or replaced by NHA and its third party providers. 

2.17 “Third Party SaaS Services” means the third party Software that is hosted on the System and that is accessed and used via the Equipment or a web-based interface (as applicable) on a Software-as-a-Service subscription basis. 

2.18 “Trade Secret” means information, without regard to form, which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 

2.19 “Update” means any bug fixes, error corrections, enhancements and subsequent releases to the On-Prem Software and Cloud Services and associated Documentation which are made available by NHA to paid licensees and subscribers of the On-Prem Software and Cloud Services for no additional charge. Updates shall not include any releases, enhancements, functionality, modules, programs or products that NHA or its third party providers license separately or charges for separately. The use of an Update may be subject to additional terms, and you may be required to agree to such terms prior to receiving an Update. 

3. License Rights and Services. 

3.1 License Grant. Subject to the terms and conditions set forth herein, including without limitation, your payment of all applicable fees, NHA hereby grants you during the term of the applicable Order a non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) access and use the On-Prem Software and Cloud Services on the Equipment and subject to the licensing parameters specified in the applicable Order, solely for (i) your internal use; and (ii) use by Customers; (b) to transmit and receive Client Data to and from the On-Prem Software and Cloud Services; and (c) use the Documentation in connection with such rights. The rights granted to you pursuant to any Order shall terminate upon the termination or expiration of this Agreement or the applicable Order for any reason. 

3.2 Third Party SaaS Services. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that the access and use of the Third Party SaaS Services may be subject to additional terms and conditions relating to the use of such Third Party SaaS Services and you may be required to agree to such terms prior to accessing or using such Third Party SaaS Services. NHA will not be liable to you or any third party in the event that changes in Third Party SaaS Services cause the unavailability of the Cloud Services or any feature or function thereof. 

3.3 Limitations. You acknowledge that the license grants set forth in this Section 3 do not include any right or license with respect to the source code form of the On-Prem Software, Cloud Services, or System. All rights in the On-Prem Software, Cloud Services, System or Documentation not expressly granted to you in this Agreement are hereby reserved to NHA and its licensors. Without limiting the foregoing, you shall not: (a) access or use any portion of the On-Prem Software, Cloud Services, System or Documentation except as expressly authorized in this Agreement or an Order; (b) cause or permit decompilation, reverse assembly or reverse 

engineering of all or any portion of the On-Prem Software, Cloud Services, or System; (c) copy any ideas, features, functions or graphics of the On-Prem Software, Cloud Services, System or Documentation or modify or make derivative works based upon the On-Prem Software, Cloud Services, System or Documentation; (d) delete, fail to reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the On-Prem Software, Cloud Services, System or Documentation; (e) directly or indirectly, sublicense, relicense, distribute, disclose, use, rent or lease the On-Prem Software, Cloud Services, System, or Documentation, or any portion thereof, for third party use, third party training, facilities management or time-sharing, or use as an application service provider or service bureau; (f) disclose or publish performance benchmark results or test results to non-affiliated third parties with respect to the On-Prem Software, Cloud Services, or System without NHA’s prior written consent in each instance; or (g) export or use the On-Prem Software, Cloud Services, System, or Documentation in violation of U.S., or other applicable laws or regulations, including the U.S. Department of Commerce export administration regulations. Without limiting the foregoing, you may not use the On-Prem Software, Cloud Services, or System to: (i) send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the On-Prem Software, Cloud Services, or System or the data contained therein; or (iii) attempt to gain unauthorized access to the On-Prem Software, Cloud Services, System, or Documentation. You shall permit representatives of NHA at all reasonable times to inspect any location at which the On-Prem Software is installed, or the Cloud Services are being accessed or used, including online, Internet and intranet locations. 

3.4 Support. You will be responsible for providing first line maintenance and support to the Customers and to your authorized end users in connection with the On-Prem Software and Cloud Services. NHA will allow up to two (2) qualified employees of yours who have been trained on use of the On-Prem Software and Cloud Services (the “Designated Employees”) to contact NHA with technical questions or issues with respect to the On-Prem Software and Cloud Services and to report System outages or failures. NHA shall respond to the technical support questions from the Designated Employees and commence the process of responding to On-Prem Software, Cloud Services or System outages or failures in accordance with NHA’s standard support procedures. The Designated Employees shall assist NHA in resolving issues with the On-Prem Software, Cloud Services and System. NHA is under no obligation to provide functional updates, enhancements or upgrades to the On-Prem Software, Cloud Services or System by any time certain. 

3.5 System Availability. NHA will use commercially reasonable efforts to enable access to the Cloud Services with no more than approximately one (1) hour of down time per day. NHA reserves the right to perform maintenance of the Cloud Services and System as needed and, except in the event of emergency maintenance, will schedule such maintenance before or after 8:00 AM – 5:00 PM Monday-Friday (excluding holidays) U.S. Central Time. You acknowledge and agree that certain portions of the Cloud Services, including without limitation, data storage, hosting, and System hardware management, may be provided by third party service providers. NHA will provide ongoing management of the System, located at the third party provider’s location, in accordance with NHA’s agreement with the third party provider(s), in order to maintain the reasonable availability of the Cloud Services. NHA may change its third party data hosting provider to another hosting provider, in NHA’s sole discretion, from time to time. 

3.6 Provisioning of the On-Prem Software and Cloud Services. NHA may update the functionality and user interface of the On-Prem Software and the Cloud Services from time to time in its sole discretion as part of its ongoing improvement of the On-Prem Software and Cloud Services. You agree that your access and use of the On-Prem Software and Cloud Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by NHA regarding future functionality or features. 

4. Equipment. You acknowledge and agree that NHA shall not be responsible for providing you with support and maintenance services for the Equipment. You may obtain support and maintenance services for the Equipment, if any such services are available, from the supplier of the Equipment. You are solely responsible for providing a suitable hardware and software environment for installation and operation of the Equipment. 

5. Your Obligations. 

5.1 Resources. Except as expressly set forth herein, you shall be solely responsible for providing all resources, equipment and software which are necessary to access and use the Cloud Services and the System. You must provide all equipment and licenses necessary to access and use the Internet, and pay all fees associated with such access and use. To the extent NHA’s provision of the Cloud Services requires data, documents, information or materials of any nature to be furnished, in whole or in part, by you or your employees, agents, contractors, representatives or authorized users, you will cause such employees, agents, contractors, representatives and authorized users to furnish such data, documents and information in a manner which permits NHA to perform the Cloud Services as contemplated herein. 

5.2 Compliance with Laws. You will comply with all applicable laws, rules and regulations relating to your or your Customers’ receipt or use of the On-Prem Software and Cloud Services. Without limiting the foregoing, you will be solely responsible for determining the extent to which the design, provision or use of the On-Prem Software and Cloud Services are subject to any financial and money transmittal laws or regulations or privacy laws or regulations (“Trade Laws”), or the oversight of any regulatory agency charged with the enforcement thereof (“Regulatory Oversight”). To the extent that the design and operation of the On-Prem Software and Cloud Services is subject to any Trade Laws or Regulatory Oversight, you will specify any procedures to be taken by NHA during the customization, provision and use of the On-Prem Software and Subscription Services to cause the On-Prem Software and Subscription Services to be in compliance with such Trade Laws and Regulatory Oversight. You shall not export the On-Prem Software, Cloud Services, System or Documentation in violation of U.S. Department of Commerce export administration regulations. 

5.3 Responsibility for Use and Security. You are fully and exclusively responsible for all use of the On-Prem Software and Cloud Services licensed and used pursuant to this Agreement, whether authorized or unauthorized. You shall keep login credentials confidential and secure, and you are responsible for all actions taken using login credentials provided by NHA. By using the On-Prem Software and Cloud Services you agree to ensure that all usage thereof complies with the terms and conditions of this Agreement. You agree to monitor usage of the On-Prem Software and Cloud Services by implementing appropriate physical, administrative, and technical safeguards to protect the On-Prem Software and Cloud Services, including without limitation, any back-up copies of the Client Data or any other data processed by the On-Prem Software and Cloud Services, and any transactions occurring through the use of the On-Prem Software and Cloud Services, to ensure they are not subject to unauthorized access, use, modification or disclosure. You shall: (a) notify NHA immediately of any unauthorized access, use, modification or disclosure of the On-Prem Software or Cloud Services or any other known or suspected breach of security; and (b) report to NHA immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Client Data that is known or suspected by you. NHA shall not be responsible for security incidents, cyberattacks, unauthorized access, fraud, jackpotting events, cash losses, malware incidents or similar events arising from or contributed to by your systems, environment, personnel, third parties, equipment operation or your failure to maintain appropriate controls. 

5.4 Use of the Internet. You understand and acknowledge that the Internet and communications over it may not be secure, and that connecting to it provides the opportunity for unauthorized access to computer systems, networks, and all data stored therein. The information and data transmitted through the Internet (including, without limitation, the Client Data) or stored on any equipment through which Internet information is transmitted may not remain confidential and NHA makes no representation or warranty regarding privacy, security, authenticity, non-corruption or destruction of any such information. Use of any information transmitted or obtained over the Internet is at your own risk and NHA shall be responsible to you for any adverse consequence or loss whatsoever from use of the Internet. 

6. Prices; Ordering; Payment. 

6.1 Invoicing and Payment. Except as otherwise specified in an Order: (a) you shall pay to NHA all fees, charges and expenses due and owing pursuant to an Order in U.S. dollars to the address designated on the invoice within thirty (30) days following NHA’s invoice date; and (b) all payment obligations are non-cancellable, non-refundable and non-contingent. You may not set-off any amounts owing to you against any payments owing to NHA hereunder. Payments which are not received when due shall bear interest at the lesser of the maximum amount chargeable by law or one and a half percent (1½%) per month commencing with the date payment was due. In addition, in the event you fail to timely pay any fees or charges when due, NHA may, in its discretion, suspend or terminate any On-Prem Software or Cloud Services or other services hereunder in accordance with Section 7.3. You will continue to be charged for all On-Prem Software and Cloud Services and other services during any period of suspension. 

6.2 Support Fees. Fees for NHA’s standard support services are included in the license and subscription fees at no additional cost. If you wish to purchase an enhanced support services plan you may request such services from NHA and the relevant terms and fees shall be mutually agreed upon by the parties. 

6.3 Taxes and Duties. Excluding taxes based on NHA’s net income, you are liable and responsible for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to your receipt or use of the On-Prem Software and Cloud Services, whether or not NHA invoices you for such taxes, duties or customs fees, unless you timely provides NHA with a valid tax exemption or direct pay certificate showing that you are exempt from such payments. If you are required to pay any such taxes, duties or customs fees, you shall reimburse NHA for such amounts in accordance with Section 6.1, and you further agree to indemnify, defend and hold harmless NHA for any such taxes, duties and customs fees and any related costs, interest and penalties paid or payable by NHA with respect thereto. 

6.4 Expenses. You shall reimburse NHA for any travel, meal, lodging and out-of-pocket expenses incurred in carrying out its obligations under this Agreement. 

6.5 Records and Inspections. You shall keep such records as are appropriate to evidence your access and use of the On-Prem Software and Cloud Services and to substantiate your compliance with this Agreement. You shall retain such records during the Term and for two (2) years following the Term. NHA or its designated representative (which shall include, without limitation, NHA’s designated accountants) may conduct audits of your use of the On-Prem Software and Cloud Services and your compliance with this Agreement. You shall cooperate with NHA’s audit and provide access to such books and records and to any computers, systems, equipment, information and personnel requested by NHA, which NHA will examine as necessary to verify your use of the On-Prem Software and Cloud Services and your compliance with this Agreement. Audits will be conducted during business hours on reasonable prior notice to you. NHA will bear the costs of audits unless the results show improper use of the On-Prem Software and Cloud Services or a breach of this Agreement by you, in which case you will reimburse NHA for any fees due and for NHA’s out-of-pocket costs of the audit within thirty (30) days of NHA’s invoice. 

7. Term and Termination. 

7.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue until terminated in accordance with the provisions hereof. Either you or NHA may terminate this Agreement upon written notice to the other party in the event no Order is outstanding hereunder. 

7.2 Termination. Either you or NHA may terminate this Agreement or the applicable Order if the other party breaches this Agreement or such Order, as applicable, and fails to correct the breach within thirty (30) days following receipt of written notice from the non-breaching party. In addition, NHA may terminate this Agreement immediately if you file for bankruptcy, become insolvent, or make an assignment for the benefit of creditors, or if a trustee is set up to administer a substantial portion of your assets or business. 

7.3 Suspension of Services. In the event (a) you fail to timely pay any fees when due; or (b) NHA believes, upon advice of counsel, that any element of the On-Prem Software or Cloud Services, or your receipt or use thereof, violates any applicable law, rule or regulation, NHA may it its sole discretion suspend or terminate any On-Prem Software or Cloud Services and other services immediately without notice. 

7.4 Termination by you. In the event NHA amends this Agreement pursuant to subsections (a) or (c) of the preamble of this Agreement, you may terminate this Agreement by providing thirty (30) days’ prior written notice to NHA of such termination, provided such notice is provided by you prior to the earlier of (a) five (5) days following the effective date of NHA’s amendment to this Agreement; or (b) your continued receipt of the On-Prem Software or Cloud Services following the effective date of NHA’s amendment to this Agreement. 

7.5 Effect of Termination. Upon termination of this Agreement or an Order for any reason, all payment obligations shall become immediately due and owing and you shall immediately cease using the applicable On-Prem Software and Cloud Services and return all Documentation, NHA Confidential Information and NHA Trade Secrets in your possession to NHA. Upon termination of this Agreement, you shall also return to NHA or destroy all copies of NHA’s Trade Secrets and Confidential Information in every form. In the event of any termination hereunder, you shall not be entitled to any refund of any payments made by you. 

7.6 Survival. The rights and obligations of the parties which by their nature continue after the termination of this Agreement, including, but not limited to, the Preamble, and Sections 2, 5, 6, 7.5, 7.6, 8.2-8.6, and 9-12, shall survive and continue after expiration of this Agreement, and shall bind the parties, their successors, heirs and assigns. 

8. Representations and Warranties. 

8.1 Services Warranty. Provided that you notify NHA of the non-conformance within the warranty period, and subject to the limitations set forth herein, NHA warrants that the NHA SaaS Services will be provided substantially in accordance with the applicable Documentation for a period of ninety (90) days from the date such NHA SaaS Services are first provided. No specific result from the provision of NHA SaaS Services is assured or guaranteed. In the event of any breach of the foregoing warranty, NHA shall, at its option and as your sole and exclusive remedy, (a) re-perform the NHA SaaS Services which were not performed as warranted at no additional charge; or (b) in the event NHA is unable to re-perform such NHA SaaS Services after exercising commercially reasonable efforts to do so, refund the fees paid to NHA for the NHA SaaS Services which were not performed as warranted. Notwithstanding the foregoing, NHA shall have no obligation to provide the warranty services described in this Section 8.1 if: (i) the performance failure is at least partially attributable to your deviation from applicable operating instructions or failure to perform your obligations set forth in this Agreement; or (ii) your or any other person or entity (other than NHA) has modified the NHA SaaS Services. NHA does not warrant that the NHA SaaS Services will operate in conjunction with equipment that is neither provided by nor formally approved by NHA. 

8.2 Your Acknowledgment. You acknowledge and agree that your have made your own evaluation in deciding to subscribe for the Cloud Services. The warranties provided in this Agreement extend solely to you and to no other person or entity whatsoever. Without limiting the foregoing, NHA is not responsible for the results that may be obtained from use of the Cloud Services. 

8.3 Third Party SaaS Services. You acknowledge and agree that the Third Party SaaS Services is provided to you on an “AS IS” basis without a warranty from NHA. 

8.4 Equipment. You acknowledge and agree that the Equipment is provided to you by a third party supplier and that NHA has no performance obligations or liability with respect to the Equipment. 

8.5 GENERAL DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NHA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE ON-PREM 

SOFTWARE, CLOUD SERVICES, THE SYSTEM, OR ANY OTHER SERVICES OR PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT. NHA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. NHA DOES NOT WARRANT THAT THE ON-PREM SOFTWARE, CLOUD SERVICES, SYSTEM, OR OTHER SERVICES OR PRODUCTS ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE ON-PREM SOFTWARE, CLOUD SERVICES, SYSTEM, OR OTHER SERVICES OR PRODUCTS WILL BE UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH THE ON-PREM SOFTWARE, CLOUD SERVICES, SYSTEM, OR OTHER SERVICES OR PRODUCTS CAN OR WILL BE CORRECTED. 

8.6 SECURITY DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT NHA SHALL HAVE NO LIABILITY FOR ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM OR RELATED TO THE USE OF THE ON-PREM SOFTWARE, CLOUD SERVICES, SYSTEM, THE EQUIPMENT, OR OTHER SERVICES OR PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY LOSSES ARISING FROM CYBERATTACKS, JACKPOTTING, HACKING, UNAUTHORIZED ACCESS, DATA BREACHES, CASH LOSSES, THEFT, FRAUD, SECURITY INCIDENTS, SYSTEM FAILURES, OR ANY CRIMINAL ACTIVITY INVOLVING EQUIPMENT ON WHICH THE ON-PREM SOFTWARE OR CLOUD SERVICES ARE INSTALLED, EXCEPT TO THE EXTENT SUCH LIABILITY CANNOT BE DISCLAIMED UNDER APPLICABLE LAW 

9. Confidentiality. 

9.1 Confidentiality. The Receiving Party agrees to use the Trade Secrets and Confidential Information of the Disclosing Party solely for purposes of performing its obligations or exercising its rights under this Agreement. The Receiving Party agrees to discuss the Trade Secrets and Confidential information of the Disclosing Party only with, and to transmit the Trade Secrets and Confidential Information only to, those officers, employees and consultants of the Receiving Party who have a need to know the Trade Secrets or Confidential Information for the purposes set forth herein and who have agreed in writing to treat such information as confidential on terms no less restrictive than as set forth in this Agreement. You and NHA acknowledge and agree that the terms of any previously executed confidentiality or nondisclosure agreements shall remain in effect with respect to the information exchanged thereunder. 

9.2 Security Precautions. The Receiving Party shall take commercially reasonable security precautions to prevent unauthorized use and disclosure of the Trade Secrets and Confidential Information of the Disclosing Party and shall use at least the same degree of care the Receiving Party employs with respect to its own Trade Secrets and Confidential Information, but in no event less than a reasonable standard of care. The Receiving Party shall not permit unauthorized access to the Trade Secrets or Confidential Information of the Disclosing Party. 

9.3 Duration and Exceptions. With regard to Confidential Information, the obligations in this Section 9 shall continue for the Term and for a period of five (5) years thereafter. With regard to Trade Secrets, the obligations in this Section 9 shall continue for so long as such information constitutes a trade secret under applicable law, but in no event less than the Term and for a period of five (5) years thereafter. The Receiving Party’s obligations with respect to Trade Secrets and Confidential Information of the Disclosing Party shall not apply to the extent such Trade Secrets or Confidential Information: (a) are previously known to the Receiving Party without restriction on disclosure; (b) cease to be secret or confidential except by reason of a breach of this Agreement by the Receiving Party; (c) are independently developed by the Receiving Party without reference to the Trade Secrets or Confidential Information of the Disclosing Party; or (d) were received from a third party without obligations of confidence and without breach of this Agreement. In addition, the Receiving Party may disclose Trade Secrets and Confidential Information of the Disclosing Party to the extent such disclosure is required by applicable law or by any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable legal requirements before such disclosure occurs so as to enable the Disclosing Party to obtain such protection as may be available to preserve the confidentiality of such information. 

10. Intellectual Property Rights. 

10.1 NHA’s Intellectual Property. NHA (or its licensors) retains title to the On-Prem Software, Cloud Services, System, and Documentation, and all modifications, alterations, derivative works, and enhancements thereto, and all copies thereof and Intellectual Property Rights therein. For clarity, any customization, configuration, implementation deliverable, integration, interface, report, script, workflow, enhancement, derivative work, professional services output, or other work product created by or on behalf of NHA in connection with the On-Prem Software or Cloud Services shall be owned exclusively by NHA unless expressly agreed otherwise in writing. Except as specified herein, you do not acquire any rights, express or implied, in the On-Prem Software, Cloud Services, System, or Documentation, and have no right to commercialize or transfer the On-Prem Software, Cloud Services, System, or Documentation, in whole or in part. No license, right or Intellectual Property Right in any NHA trademark, trade name or service mark is granted pursuant to this Agreement. 

10.2 Client Data. As between NHA and you, you shall own all Client Data. You shall have sole responsibility for the accuracy, completeness, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership and right to use all Client Data, and NHA shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Client Data for any reason. NHA does not warrant the correctness, completeness, merchantability or fitness for a particular purpose of any Client Data, and you shall hold NHA harmless from any and all third party claims arising out of your use or dissemination of any such Client Data. NHA reserves the right to purge and delete Client Data in its possession, if any, upon termination of this Agreement. 

10.3 License to Client Data. You hereby grant to NHA the non-exclusive right and license to (a) receive, retrieve, process, use and transmit any Client Data necessary or reasonably desirable to enable and perform the On-Prem Software and the Cloud Services or other services; (b) use, copy, manipulate and store any Client Data that will be archived, stored or otherwise transmitted in connection with the On-Prem Software, Cloud Services or other services; and (c) to aggregate Client Data and data with content and data from other clients (“Data Aggregations”) for purposes including, without limitation, product and service development and commercialization and quality improvement initiatives. NHA will redact Client Data in such a way as to not divulge your Confidential Information or Trade Secrets. All Data Aggregations will be the sole and exclusive property of NHA. 

10.4 License to the Marks. You hereby grant to NHA the worldwide, non-exclusive limited right and license during the Term to use the Marks in connection with performance of the On-Prem Software and Cloud Services and its other obligations under this Agreement. 

11. Limitation on Liability. 

11.1 EXCLUSION OF DAMAGES. IN NO EVENT SHALL NHA OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), EVEN IF NHA HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. 

11.2 LIMITATION OF LIABILITY. NHA TOTAL AGGREGATE LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU TO NHA DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR FIRST CLAIM. 

11.3 EXCEPTIONS. THE FOREGOING LIMITATIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. 

12. Miscellaneous. 

12.1 Dispute Resolution; Governing Law. The laws of the State of Texas shall govern this Agreement, without reference to conflicts of law rules or principles. Both you and NHA specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement. You hereby consent and submit to the exclusive jurisdiction and venue over any action, suit or other legal proceeding that may arise out of or in connection with this Agreement, by any state or federal court located within or about Dallas, Texas, USA. You shall bring any action, suit or other legal proceeding to enforce, directly or indirectly, this Agreement or any right based upon it exclusively in such courts. 

12.2 Attorneys’ Fees. If you breach any of the terms of this Agreement, then you shall pay to NHA NHA’s reasonable costs and expenses, including attorneys’ fees, incurred by NHA in enforcing the terms of this Agreement. 

12.3 Force Majeure. NHA will not be liable for any loss, damage or delay resulting from any event beyond NHA’s reasonable control (a “Force Majeure Event”), and delivery and performance dates will be extended to the extent of any delays resulting from any such Force Majeure Event. NHA will promptly notify you upon becoming aware that a Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. 

12.4 Assignment. Neither party (whether such party is you or NHA) shall assign, transfer, or otherwise delegate any of its rights, duties, or obligations under this Agreement in whole or in part to any individual, firm or corporation without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any attempted assignment (whether by operation of law or otherwise) shall be null and void; except that NHA may delegate any of its rights, duties, or obligations under this Agreement to one or more of its affiliates. Notwithstanding the foregoing, NHA may assign its rights, duties, and obligations hereunder, without your approval, to a party that succeeds to all or substantially all of NHA’s assets or business (whether by sale, merger, operation of law or otherwise), so long as the assignee agrees in writing to be bound by the terms and conditions of this Agreement. This Agreement shall be binding upon and shall inure to your and NHA’s benefit and to your and NHA’s successors and permitted assigns. 

12.5 Injunctive Relief. You understand and agree that in the event of a breach or threatened breach of any of the covenants or promises contained in this Agreement, NHA will suffer irreparable injury for which there is no adequate remedy at law and NHA may seek injunctive relief enjoining said breach or threatened breach. You further acknowledge, however, that NHA shall have the right to seek a remedy at law as well as or in lieu of equitable relief in the event of any such breach. 

12.6 Independent Contractors. Nothing in this Agreement shall be construed to create an agency, joint venture, partnership or other form of business association between you and NHA. You do not have the right or authority to make any contract, representation or binding promise of any nature on behalf of NHA and you shall not hold yourself out as having such right or authority. 

12.7 No Waiver. The failure on either your part or on NHA’s part to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. 

12.8 Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby. 

12.9 Notices. Any notices or other communications required or permitted to be given or delivered by NHA under this Agreement shall be undertaken by NHA by any means NHA determines in its discretion to be reasonable including, but not limited to, sending you an email notification (in which case the notice or other communication shall be deemed to be given when it is sent) or posting the notices or other communications on NHA’s website (in which case the notice or other communication shall be deemed to be given when posted on NHA’s website). Any notices or other communications required or permitted to be given or delivered by you under this Agreement shall be in writing and shall be sufficiently given if delivered personally or if delivered by overnight commercial courier or by registered or certified mail, postage prepaid, return receipt requested, to NHA at the following address: Nautilus Hyosung America, Inc., 225 E. John Carpenter Freeway, STE 1000, Irving, TX 75062. Any notice or other communication by you shall be deemed to be given when it is personally delivered or as of the date it is delivered by the commercial courier or five (5) days after being mailed by registered or certified mail, as the case may be, as herein specified. Any change of address shall be served by notice pursuant to this Section 12.9. 

12.10 Marketing. You agree that NHA may reference your execution of this Agreement and your status as a user of the On-Prem Software and Cloud Services in marketing materials and in sales presentations. NHA may use your Marks in connection with such usage both during and after the Term. 

12.11 Entire Agreement. This Agreement (including any Orders, and attachments, which are hereby incorporated herein by reference) constitute the final and entire agreement between you and NHA, and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.