TERMS OF SERVICE

This Terms of Service is a legal contract between you and innoPath Software, Inc. (“innoPath”) governing your use of mobile or web services and/or mobile or web software (“innoPath Software”) owned, controlled or offered by innoPath (collectively, the ”innoPath Services“). PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY USING THE INNOPATH SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS OF THIS TERMS OF SERVICE. IF YOU DO NOT AGREE TO THIS TERMS OF SERVICE, PLEASE CEASE USING THE INNOPATH SERVICES IMMEDIATELY.

You acknowledge and agree that this contract is only between you and innoPath and not any of innoPath’s partners, distributors, promoters, or service providers (collectively, “Distributors”). Should you have any issue or claim with respect to the innoPath Services, innoPath, and not its Distributors, will be solely responsible for addressing the issue or claim. If you have obtained the innoPath Services from one of innoPath’s Distributors, you agree that any such Distributor will have no obligation or responsibility to provide you any warranty and/or maintenance and support services with respect to the innoPath Services.

1. License Grant

All innoPath Services are licensed to you and not sold. Subject to the terms of this Terms of Service, innoPath grants you a personal, non-exclusive, non-transferable, and non-sublicensable license to use the innoPath Services solely for your personal purposes. With respect to any open source or third party code that may be incorporated in the innoPath Software, such open source or third party code is covered by the applicable open source or third party end user license agreement, if any, authorizing use of such code.

2. Reservation of Rights

The innoPath Services and all content, visual interfaces, information, graphics, design, compilation, computer code, products, software, trademarks, service marks, trade names, and services are the property of innoPath or its subsidiaries or affiliated companies and/or third-party licensors. Except for the express license granted to you, no right, title, interest, or license to the innoPath Services is granted to you, whether by implication, estoppel, or otherwise.

3. Restrictions

You will be unable to install any innoPath Software unless you first agree to these Terms of Service. You acknowledge and agree that you will not: (a) reproduce or attempt to reproduce the innoPath Software; (b) modify, adapt, translate, or create any derivative works of the innoPath Software or attempt to do the foregoing; (c) attempt to circumvent or disable the innoPath Software or any technology, features, or measures in the innoPath Software by any means or in any manner; (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the innoPath Software; (e) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish, or disclose the innoPath Software to any third party; (f) use for a service bureau or otherwise commercialize or attempt to commercialize use of the innoPath Software; or (g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels in or on the innoPath Software or used in connection with the innoPath Software.

4. Modification of This Agreement

innoPath may modify this Terms of Service from time to time. Any and all changes to this Agreement will be posted on the innoPath.com site, and you agree to be bound by any changes to the Terms of Service when you continue to use the innoPath Services after those changes are posted.

5. Usage Rules, Prohibited Conduct and Uses

YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:

a.    Use the innoPath Services for any illegal purpose, or in violation of any laws, including without limitation, laws governing intellectual property, data protection and privacy, and import or export control.

b.    Remove, circumvent, disable, damage, or otherwise interfere with security-related features of the innoPath Services, features that prevent or restrict use or copying of any content accessible through the innoPath Services, or features that enforce limitations on use of the innoPath Services.

c.    Intentionally interfere with or damage operation of the innoPath Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code.

d.    Post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights.

e.    Use any robot, spider, scraper, or other automated means to access the innoPath Services for any purpose without innoPath’s express written permission; or bypass innoPath’s robot exclusion headers or other measures innoPath may use to prevent or restrict access to the innoPath Services; or modify the innoPath Services in any manner or form; nor to use modified versions of the innoPath Services, including without limitation, for the purpose of obtaining unauthorized access to the innoPath Services.

f.     Sell, transfer, or allow another person to access your account password or innoPath Services account.

6. Privacy Policy

a.    innoPath’s Privacy Policy is hereby incorporated into this Terms of Service by reference. Please read this Privacy Policy carefully for disclosures relating to the collection, use, and disclosure of your personal information. By using this innoPath Services, you consent to innoPath’s collection and use of personal data as described in the policy in place at the time when data is collected.

b.    When using any of the innoPath Services, you will be subject to any additional posted guidelines or rules applicable to certain features, which may be posted from time to time (the “Guidelines”), which are also hereby incorporated by reference into this Agreement.

7. Export Control

The innoPath Software originates in the United States, and is subject to United States export laws and regulations. The innoPath Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the innoPath Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to the use of the innoPath Software and the innoPath Services.

8. Consumer Rights

You may have the benefit of consumer guarantees and warranties given under statute (“Mandatory Terms”). Where any statute applies to this Agreement to give you the benefit of Mandatory Terms, and that statute does not permit innoPath to exclude or limit the application of those Mandatory Terms (or would render void any attempt to do so), then those Mandatory Terms apply to this Agreement for your benefit, and nothing in this Agreement excludes or limits those Mandatory Terms or liability for breach of them. This applies to all of the terms of this Agreement, including any terms in relation to DISCLAIMERS AND WARRANTIES, INDEMNIFICATION AND HOLD HARMLESS, AND LIMITATION OF LIABILITY AND DAMAGES.

9. Disclaimers and No Warranties

THE INNOPATH SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH THE INNOPATH SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INNOPATH, AND ITS SUPPLIERS AND PARTNERS, INCLUDING WITHOUT LIMITATION, INNOPATH’S THIRD-PARTY WIRELESS CARRIER PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. INNOPATH AND ITS SUPPLIERS AND PARTNERS, INCLUDING WITHOUT LIMITATION, INNOPATH’S THIRD-PARTY WIRELESS CARRIER PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE INNOPATH SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE INNOPATH SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF HARMFUL COMPONENTS OR THAT THE INNOPATH SERVICES WILL MEET YOUR REQUIREMENTS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR EQUIPMENT OR DEVICE, LOSS OF USE, OR LOSS OF DATA.

10. Indemnification and Hold Harmless

You agree to indemnify, defend, and hold harmless innoPath, its affiliated companies, and its suppliers and partners, including without limitation, innoPath’s wireless carrier partners, from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, arising out of or related to (a) your use or misuse of the innoPath Services, (b) any violation of the rights of any other person or entity by you, or (c) any breach or violation by you of this Agreement. innoPath reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with innoPath’s defense of these claims.

11. Limitation of Liability and Damages

TO THE EXTENT PERMITTED BY APPLICABLE LAW, INNOPATH, ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, INCLUDING WITHOUT LIMITATION INNOPATH’S WIRELESS CARRIER PARTNERS AND SUPPLIERS, WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO: SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATING TO YOUR USE OF THE INNOPATH SERVICES, EVEN IF INNOPATH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

12. Miscellaneous

This Terms of Service constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings. This Agreement may be amended only in writing signed by both parties.

This Agreement will be governed by the laws of the State of California, without regard to conflicts of law provisions, and you consent to the exclusive jurisdiction of the state and federal courts sitting in Santa Clara County, California, USA. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Either innoPath or you may demand that any dispute or claim between innoPath and you about or involving the innoPath Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (“AAA”) in Santa Clara County, California, USA, and, if so demanded by innoPath or you, both parties hereby acknowledge and agree to submit exclusively to the jurisdiction of the AAA in Santa Clara County, California, USA, to resolve the applicable dispute or claim; provided that the foregoing shall not prevent innoPath from seeking injunctive relief in a court of competent jurisdiction.

If any provision of this Agreement should be held invalid or unenforceable by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and other provisions of this Agreement will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by innoPath without restriction. The provisions of this Agreement that require or contemplate performance after the termination of this Agreement and all provisions relating to limitation of liability, disclaimers, and indemnification will be enforceable notwithstanding such termination. Neither party will be in default or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. If any dispute arises under this Agreement, the prevailing party will be reimbursed by the other party for any and all legal fees and costs associated therewith.