Infrared5 End User License Agreement

BY SELECTING "I AGREE" DURING INSTALLATION OF THE SOFTWARE,
OR BY DOWNLOADING, INSTALLING, COPYING, OR USING SOFTWARE
PROVIDED BY INFRARED5, OR BY OTHERWISE SIGNIFYING YOUR ACCEPTANCE
OF THIS EULA, YOU ACKNOWLEDGE AND AGREE: (1) THAT YOU HAVE READ
AND UNDERSTAND THIS AGREEMENT; (2) THAT YOU AGREE TO BE BOUND BY
EACH AND EVERY TERM OF THIS EULA; AND (3) IF YOU ARE ENTERING INTO
THIS AGREEMENT ON BEHALF OF A COMPANY, THAT YOU HAVE THE POWER AND AUTHORITY TO DO SO AND TO BIND SUCH COMPANY.

IF YOU DO NOT AGREE TO EACH AND EVERY TERM AND CONDITION OF
THIS EULA, YOU MAY NOT USE ANY SOFTWARE PROVIDED BY INFRARED5. If you
do not agree with each and every of the terms and conditions of this EULA, do not click
"I ACCEPT" or otherwise take any action that signifies your agreement to this EULA and
return the software to Infrared5 immediately. Infrared5 will gladly provide you with a refund
of any license fees paid if you have not installed or used the software provided by
Infrared5.

Although this EULA contains specific terms and conditions for how Infrared5 may update or modify this EULA, the most current version of license agreements for Infrared5 software are available on www.red5pro.com. If you have questions about this EULA or in the future would like to request a copy of the license agreement that you entered into, please email info@red5pro.com.

THIS EULA IS AN AGREEMENT TO LICENSE SOFTWARE, NOT AN AGREEMENT FOR THE SALE OF SOFTWARE.

1. DEFINITIONS.
1.1 "Additional Terms" means those terms and conditions referred to herein, such as terms and conditions on the Website.
1.2 "Concurrent Connections" means the total number of simultaneous connections to the Software.
1.3 "Content" means any video, audio, data, and other input to or output from the Software.
1.4 "EULA" means this End User License Agreement, including any Additional Terms.
1.5 "Infrared5 Trademarks" mean all names, trademarks, service marks, trade names, logos, designs, trade dress, domain names, and other brand designations used, registered, owned, or licensed by Infrared5 in connection with its products and services.
1.6 "Instance" means one unique installation of the Software on a Server.
1.7 "Sample Code" means sample code or scripts distributed by Infrared5 from time to time and identified as such when provided to you.
1.8 "Server" means a single physical computer running no more than one (1) unique copy of an operating system. Multiple Servers include: (i) multiple computers that share processing power or operate in a networked configuration as a single logical computer, such as a "server farm," "cluster," or similar arrangement; and (ii) multiple virtual machines within a technical environment that partitions a physical computer into multiple virtual machines such that each virtual machine has the appearance and capability of running on its own dedicated machine.
1.9 "Services" means maintenance and support services, and includes Support, Updates, and Upgrades.
1.10 "Services Period" means the period(s) of time during which you have purchased the right to obtain the Services.
1.11 "Software" means software products owned or distributed by Infrared5 known as "red5pro" that are licensed to you under this EULA including, but not limited to, any related components, application programming interfaces, software development kits (SDKs), associated media, printed materials, online or electronic documentation, and any updates, maintenance releases, bug fixes, corrections, enhancements, or other modifications thereto.
1.12 "Support" means the provision of technical assistance by Infrared5 to you according to Infrared5's then-current policies. Support includes, at a minimum, technical support related to the Software provided by email communication with an Infrared5 representative.
1.13 "Total Number of Instances" means the maximum concurrent number of Instances you are using or have used during any billing period, as calculated by Infrared5 according to its then-current policies and procedures.
1.14 "Upgrade" means newer versions of the Software that may utilize a distinct installer package, commonly referred to as a "full version" or "dot" release.
1.15 "Update" means updates, fixes, or other relatively minor modifications to the Software, which are applied through Infrared5's update process.
1.16 "Infrared5 Trademarks" mean all names, trademarks, service marks, trade names, logos, designs, trade dress, domain names, and other brand designations used, registered, owned, or licensed by Infrared5 in connection with its products and services.
1.17 "Website" means www.Infrared5.com, www.red5pro.com, their constituent pages, and other websites owned, managed, or operated by Infrared5.
1.18 "You" or "you" means, and references to "Your" or "your" shall be deemed references to: (i) the natural person, the legal entity, or both, that is or are agreeing to this EULA by downloading, installing, copying, or using the Software; (ii) your employees and third party contractors or the employees and third party contractors employed or engaged by the legal entity agreeing to this EULA; (iii) your customers who use the Software; and (iv) any other third party that uses or gains access to the Software, whether with your permission or otherwise.
1.19 "Your Email Address" or "your Email Address" means the electronic mail (commonly referred to as "email") address you provided Infrared5, either when you downloaded the Software from the Website or at some other time. In the event you have provided multiple electronic mail addresses to Infrared5, Infrared5 may use the electronic mail address of its choosing for purposes of communication regarding the Software or Services, or for communications required or permitted by this EULA, unless you have explicitly notified Infrared5 that a specific electronic mail address should be removed from Infrared5's records.

2. LICENSE GRANTS; TITLE; USAGE BY THIRD PARTIES.
2.1 Software Licensed, Not Sold. The Software is licensed, not sold. This EULA does not transfer or modify any ownership rights related to the Software, which are exclusively held by Infrared5 and its licensors.
2.2 License Grant to the Software. Subject to the terms of this EULA, Infrared5 hereby grants you a limited, world-wide, non-exclusive, non-transferable, revocable license, without rights to sublicense, to download and install the Software on one (1) Server, and to use the Software for the purposes set forth in the applicable Software documentation, to the extent permitted by your payment of applicable fees and the specifications of your specific license grant and license type, as further described herein. Source Code, from which the Software object code is derived (except for source code contained in any Sample Code), is not being provided or licensed to you and is a valuable trade secret of Infrared5 and its licensors.
2.3 Sample Code. You may download, install, use, copy, and modify Sample Code provided to you by Infrared5, if any. If any such Sample Code is subject to the terms and conditions of any other license, the terms and conditions of such license shall govern such code.  Sample Code is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
2.4 Title. Infrared5 retains all right, title, and interest in and to the Software, copies of the Software, and Sample Code, and in and to all related copyrights, trade secrets, patents, trademarks, service marks, domain names, and other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.
2.5 Rights Reserved. Any and all rights not expressly granted to you by this EULA are reserved in all respects by Infrared5.
2.6 Usage by Others. You agree to reasonably communicate the terms and conditions of this EULA to anyone who may or will come into contact with the Software and other intellectual property of Infrared5, including without limitation, your customers, employees, and contractors. You agree to use best efforts to ensure their compliance with the terms and conditions of this EULA and you agree to be solely responsible for any failure by a third party to comply with this EULA.

3. LICENSE RESTRICTIONS. In addition to the other restrictions herein, you shall not:
3.1 copy the Software except for a reasonable number of machine-readable copies of the Software for backup or archival purposes only;
3.2 remove, alter, or obfuscate any titles, Infrared5 Trademarks, trademarks, service marks, trade names, copyright notices, legends, watermarks, or other proprietary markings on or in the Software or Sample Code;
3.3 sell, lease, license, sublicense, rent, assign, distribute, or otherwise transfer or share, in whole or in part, the Software or your rights in or to the same, to another party, including rights on a membership, subscription, or hosted basis;
3.4 modify or create derivative works based upon the Software;
3.5 decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part;
3.6 unbundle, break apart or repackage the Software or any of its component parts for any reason whatsoever;
3.7 bundle or distribute the Software in any manner whatsoever;
3.8 provide use of the Software in a third party outsourcing facility, on a service or service bureau arrangement, or on a rental, application service provider, or timesharing basis;
3.9 use the Software to transmit, reproduce, store, or share Content that you do not have the right to transmit, reproduce, store, or share;
3.10 at any time provide an evaluation license to the Software to any other person or entity, or otherwise permit any other person or entity to evaluate the Software;
3.11 make any changes, modifications, or alterations to this EULA;
3.12 make any statements, warranties, or representations concerning the Software or Sample Code that exceed or are inconsistent with the documentation provided by Infrared5;
3.13 export or re-export the Software except in compliance with applicable law, including, without limitation, the applicable provisions of the United States Export Administration Act and its related rules and regulations, along with applicable international export laws, rules, and regulations; or
3.14 assist, encourage, or permit any other person or entity to do anything prohibited or not permitted by this EULA.

4. LICENSE TYPES AND ADDITIONAL LICENSE RESTRICTIONS. The Software is licensed under various types of licenses.
4.1 Trial License Types. This section applies only if you have obtained a free Trial License to the Software. In addition to the other terms contained herein, for each separate, unique, and valid Trial License:
4.1.1 your license to the Software is limited to one (1) Instance of the Software on one (1) Server;
4.1.2 you shall not use the Software for any commercial purposes whatsoever or in any manner intended to benefit, aid, or assist a third party;
4.1.3 your license to the Software is limited to a maximum number of ten (10) Concurrent Connections;
4.1.4 you shall not apply clustering, load balancing, or other operational performance improvements to any Server on which the Software is installed, used, or accessed; and
4.1.5 your license to the Software may also include feature limitations as more fully described in the applicable documentation for the Software or on the Website.
4.2 Subscription License Types. This section applies only if you have paid for a valid Infrared5 Subscription Software License. Subscription Software Licenses means Developer Pro, Startup Pro and Growth Pro licenses described in the applicable documentation for the Software or on the Website. In addition to the other terms contained herein, for each separate, unique, and valid Infrared5 Subscription Software License:
4.2.1 notwithstanding Section 2 (License Grant), your license to the Software allows you to use that number of Instances of the Software on that number of Servers as currently permitted by Infrared5 and described in the applicable documentation for the Software or on the Website;
4.2.2 notwithstanding Section 3 (License Restrictions), you have the right to lease, sublicense, and rent to another party your rights to use the Software, solely for the purposes of use in a membership, subscription, or hosted service arrangement, and in any event subject to the terms of this EULA;
4.2.3 notwithstanding Section 3 (License Restrictions), you have the right to provide use of the Software in a third party outsourcing facility on a service or service bureau arrangement, or on a time-sharing basis, subject to the terms of this EULA;
4.2.4 Infrared5 shall use the Total Number of Instances to calculate your monthly or daily fee, as set forth on the Website. You shall pay the monthly or daily fee in U.S. dollars according to the payment policies set forth on the Website. The monthly or daily fee shall be a net amount, exclusive of all taxes, and is not subject to offset or reductions because of any costs, expenses, disputes, or liabilities incurred by you or imposed on you;
4.2.5 Infrared5 reserves the right to change the monthly and daily fees to be paid by you, as set forth on the Website, at any time and in Infrared5's sole discretion; changes in license fees will be posted on the Website and may additionally be provided to you by email to your Email Address;
4.2.6 in the event Infrared5 does not receive your monthly or daily fee by the due date for any reason, or your payment is declined, reversed, refused, charged back, or dishonored, Infrared5 shall have the right to immediately terminate your license to the Software without further notice to you;
4.2.7 in the event any overdue amount owed by you is not paid following ten (10) days notice from Infrared5 to your Email Address, then in addition to the amount due, Infrared5 may impose and you shall pay a late payment charge in addition to the overdue amount at the rate of one percent (1%) per month on such overdue amount, or the highest amount allowable by applicable law, whichever is higher;
4.2.8 Infrared5 may, in its sole discretion, discontinue or limit the supply or availability of the Software at any time;
4.2.9 in the event this EULA is terminated for any reason, your obligation to pay the monthly or daily fees accrued prior to the date of termination shall survive termination of this EULA;
4.2.10 you agree to keep a valid form of payment on file with and available to Infrared5, in the system or systems dictated by Infrared5, at all times; and
4.2.11 in addition to the foregoing subsections in Section 4.2, the following provisions apply to Developer Pro Licenses: (a) your license to the Software is limited to a maximum number of one hundred (100) Concurrent Connections; and (b) you shall not apply clustering, load balancing, or other operational performance improvements to any Server on which the Developer Software is installed, used, or accessed.
4.3 Software Development Kit License Types.  This section applies only if you have obtained a Software Development Kit License. In addition to the other terms contained herein, for each separate, unique, and valid Software Development Kit License:
4.3.1  notwithstanding Section 2 (License Grant), subject to the payment of the then current fee therefor, you are hereby granted a nonexclusive, worldwide, non transferable license to use the SDK and Documentation for your internal use only and for the sole purpose of creating applications utilizing the Infrared5 server during the term of this Agreement and according to the terms and conditions hereof;
4.3.2 further the license to use the SDK is limited to creating one application (which may be deployed on multiple operating systems); and
4.3.3 if you intend to private label the SDK or use the SDK as an OEM, then you must enter into a different license agreement with Infrared5 as such use is not permitted under this EULA.

5. MAINTENANCE AND SUPPORT. Infrared5 offers the Services during applicable Services Periods. Additional terms and conditions regarding the Services may be posted on the Website or communicated to you by Infrared5 from time to time.
5.1 Services Provided Per-License. The Services are provided on a per-license basis, and not on a per-customer or per-company basis. Each license has an individual Services Period that begins on the date you obtained such License from Infrared5 or purchased an additional Services Period for such license from Infrared5.You agree to only access or obtain the benefit of the Services for the specific license provided to Infrared5 when requesting such Services and you agree to not use the
Services, including Updates and Upgrades, for the benefit of any license not then entitled to the Services.
5.2 Services Periods. Services are only provided during the Services Period. Services Periods vary by license type. License types are more fully described in Section 4, above.
5.2.1 The Services Period for Developer license type begins on the date you obtain the Software from Infrared5 and end at the expiration of such license.
5.2.2 The Services Period for subscription license type is the term of such subscription license for the Software.
5.2.3 If you obtained your Software from a party other than Infrared5 (such as a Infrared5 authorized reseller or OEM partner), your Services Period may differ from those described herein.
5.3 The Services. Subject to the terms of this EULA and other terms and conditions on the Website and provided to you from time to time, Infrared5 will provide the Services to you during the Services Period for each individual License.
5.3.1 Infrared5 will not provide Services related to: (i) prior versions of the Software; (ii) improper installation or use of the Software; (iii) software or other products or services not offered, licensed, and provided to you by Infrared5, and the implementation or use of the Software with any of the foregoing; (iv) modified code; (v) other things not specifically described herein as within the scope of the Services.
5.3.2 In the event a Services Period expires for a given License and you elect to not purchase additional Services Periods but later wish to receive Services from Infrared5 related to such license, Infrared5 may, in its sole discretion, require you to purchase Services Periods retroactively to the date on which the relevant Services Period previously lapsed, pay a reinstatement fee, or both.
5.3.3 Infrared5 may suspend or terminate the Services without owing a refund to you if your use of the Services is determined by Infrared5, in its sole and reasonable discretion, to be excessive or improper.
5.3.4 The Services will be provided within the timeframes described on the Website or in other documentation provided by Infrared5. No failure to meet a timeframe to provide Services shall be deemed a breach of this EULA or any obligation of Infrared5.

6. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY.
6.1 The Software is a valuable trade secret and the confidential and proprietary information of Infrared5.
6.2 The Software and any copies thereof are the exclusive intellectual property of Infrared5 and protected by copyright laws and international treaties as well as other intellectual property laws and treaties. The structure and organization of the Software, along with its source code and object code, are confidential information and valuable trade secrets of Infrared5. You agree that any disclosure by you of Infrared5's confidential information will cause immediate, irreparable harm to Infrared5 for which a court of competent jurisdiction may award equitable remedies, as well as any other available legal remedies. Except as expressly stated herein, Infrared5 does not grant you any intellectual property rights in or to the Software. Infrared5 reserves all rights not expressly granted herein.
6.3 You hereby agree to maintain the confidentiality of the Software and other intellectual property of Infrared5 using your best efforts, and in no case less than reasonably prudent care for extremely sensitive and proprietary confidential information. You agree to reasonably communicate the terms and conditions of this EULA to those persons employed or engaged by you, or who otherwise come into contact with the Software and other intellectual property of Infrared5, and to use best efforts to ensure their compliance with the terms and conditions of this Section 6, including, without limitation, not permitting such persons to use any portion of the Software and other intellectual property of Infrared5 for the purpose of deriving the source code of the Software.
6.4 You are granted no right, title, license to, or interest in the Infrared5 Trademarks, and you hereby agree to not use the Infrared5 Trademarks without Infrared5's prior written consent. Notwithstanding the foregoing, you agree that any use of the Infrared5 Trademarks, whether permitted or otherwise, shall inure to the sole benefit of Infrared5. You agree to not: (i) file or prepare any application for registration of any of the Infrared5 Trademarks; (ii) assert any right, title, license to, or interest in the Infrared5 Trademarks; (iii) adopt, use, file for registration, or register any trademark, service mark, trade name, logo, or domain name which may be, in Infrared5's sole discretion, either an infringement of a Infrared5 Trademark or Infrared5 domain name, or may result in a likelihood of confusion with a Infrared5 Trademark or Infrared5 domain name; or (iv) encourage, assist, or permit any other person or entity to do anything prohibited by this Section. Notwithstanding the foregoing, you are permitted to identify the Software as "Infrared5". Please contact sales@Infrared5.com if you are interested in obtaining additional rights related to Infrared5 Trademarks.
6.5 You agree that Infrared5 may use your name, organization name, logos, and other identifying information to identify you as an Infrared5 customer in marketing and similar efforts, such as marketing collateral, trade show signage, and website content. You agree that such use of your name shall be without royalty or other obligation to you by Infrared5.
6.6 From time to time you may provide Infrared5 with feedback, suggestions, or ideas for changes to the Software (collectively, "Ideas"). Regardless of how Infrared5 receives or becomes aware of them, all Ideas are the exclusive property of Infrared5, are confidential information, and may be used in any manner and for any purpose by Infrared5 without obligation of any kind to you.

7. TERMINATION.
7.1 Termination. Infrared5 may terminate this EULA immediately and without notice if you fail to comply with any term of this EULA or fail to timely pay any amounts due Infrared5. Infrared5 may terminate this EULA for any reason or no reason upon thirty (30) days advance notice to your Email Address.
7.2 Effect of Termination. In the event of termination, you must immediately and completely cease using the Software in any way, and destroy all copies of the Software in your possession or under your control licensed under this EULA. In addition, you must remove the Software and all copies thereof, including all backup copies, from all Servers, computers, and other media on which it is installed, stored, or archived. If requested by Infrared5, you shall provide Infrared5 with written certification that you have complied with these requirements within three (3) business days of such request.

8. INDEMNIFICATION BY YOU.
8.1 Generally. You will indemnify, defend, and hold harmless Infrared5 and its affiliates, and each of their respective officers, directors, shareholders, employees, agents, advisors, and representatives (collectively, the "Indemnified Parties") against all liabilities, obligations, losses, costs, damages, and other expenses and attorneys" fees (collectively, "Indemnified Costs") arising out of or relating to your breach of this EULA or any other of your acts, omissions, or representations. Without limiting the foregoing, your indemnification under this paragraph shall include, without limitation, indemnification for Indemnified Costs incurred by the Indemnified Parties caused by or related to: (i) the Content; (ii) your violation of applicable law or regulation; or (iii) your provision of services to any third party utilizing the Software; (iv) any failure to pay required taxes or other amounts due to third parties related to the Software or this EULA.
8.2 Intellectual Property Indemnification. You will indemnify, defend, and hold harmless the Indemnified Parties against all Indemnified Costs arising out of or relating to a claim that any of the following infringes any patent, trademark, copyright, trade secret, or other IP right: (i) your modification of the Software; (ii) your use of the Software in combination with any products or services not provided by Infrared5; (iii) your use of a version of the Software other than the most current or immediately preceding version; (iv) information, design, specification, instruction or other material provided by you; or (v) your use of the Software other than in accordance with this EULA and other applicable documentation, instructions, and information provided by Infrared5 or its representatives.

9. LIMITED WARRANTY AND LIMITATION OF LIABILITY.
9.1 Limited Warranty. Infrared5 warrants that the Software will substantially conform to the description contained in the applicable end user documentation for a period of 90 days after the date you downloaded the Software. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
INFRARED5 PROVIDES THE SOFTWARE AND SERVICES WITHOUT ANY
WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER
PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND INFRARED5
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INFRARED5
DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL MEET YOUR
NEEDS OR THAT THE SOFTWARE OR SERVICES WILL BE OR PROVIDE FOR ERROR FREE OPERATION OR OPERATION WITHOUT INTERRUPTION. IN THE
EVENT YOU OBTAINED THIS LICENSE FROM A RESELLER, DISTRIBUTOR, OR
OTHER THIRD PARTY, INFRARED5 SHALL HAVE NO OBLIGATION TO YOU UNDER
ANY WARRANTY GIVEN BY SUCH RESELLER, DISTRIBUTOR, OR THIRD PARTY, OR THEIR RESPECTIVE AGENTS OR EMPLOYEES.
9.1.1 The exclusive remedy for breach of the preceding warranty with regard to the Software is, at Infrared5's sole discretion and subject to Infrared5's limitation of liability, to either: (i) repair the Software; (ii) replace the Software; or (iii) terminate the license to the Software granted to you and provide you with a pro-rata refund of the fees paid by you for the Software for the period of time, if any, that you were prevented from using the Software.
9.1.2 The exclusive remedy for breach of any warranty with regard to the Services is, subject to Infrared5's limitation of liability, to re-perform the Services in a commercially reasonable manner.
9.2 Limitation of Liability.
9.2.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INFRARED5 BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE RELATED TO THE SOFTWARE, SERVICES, OR OTHER SUBJECT MATTER HEREOF. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.
9.2.2 INFRARED5'S LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID BY YOU IN THE TWELVE MONTHS PRIOR TO ANY CLAIM FOR THE SOFTWARE AND SERVICES LICENSED TO YOU UNDER THIS EULA. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER INFRARED5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU AND INFRARED5 AGREE THAT, GIVEN THE PRICE OF THE SOFTWARE AND THE NATURE OF THE CIRCUMSTANCES, THE PRECEDING LIMITATIONS ARE FAIR AND REASONABLE.

10. TAXES.
10.1 You shall be solely responsible for, and shall pay directly, all taxes, duties, and charges incurred related to this EULA or the Software or Services, including, without limitation, sales and use taxes, withholding taxes, duties and charges imposed by federal, state or local governmental authorities in the United States or elsewhere. This Section 10.1 shall not apply to taxes levied against the income or capital of Infrared5 or upon Infrared5 as employer of Infrared5's employees.
10.2 You shall collect, report, and pay to the relevant taxing authority, and indemnify Infrared5 for, any liability relating to applicable excise, property, sales and use, value-added (VAT), or similar taxes, along with any withholding requirement in addition to or in lieu thereof, and any customs, import, export or other duties, levies, tariffs, taxes, or other similar charges that are imposed by any jurisdiction for any and all services provided to any third party as permitted by this EULA.

11. GENERAL.
11.1 Entire Agreement. This EULA, including the Additional Terms, sets forth Infrared5's entire liability and your exclusive remedy with respect to the Software, Services, and other subject matter hereof, and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software, Services, and other subject matter hereof. You acknowledge that this EULA, including Additional Terms, is a complete statement of the agreement between you and Infrared5 with respect to the Software, Services, and other subject matter hereof, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software, Services, and other subject matter hereof. Additional Terms referenced herein are deemed incorporated herein by reference. ANY PURCHASE ORDER OR OTHER DOCUMENT PROVIDED BY OR RECEIVED FROM YOU SHALL BE FOR YOUR INTERNAL USE ONLY AND SHALL NOT BE APPLICABLE TO INFRARED5 NOR SHALL IT MODIFY THE TERMS OF THIS EULA OR GOVERN YOUR USE OF THE SOFTWARE. INFRARED5 REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS.
11.2 Headings and Interpretation. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA. References herein to the singular include the plural, and vice versa. Infrared5 and You agree that, if an ambiguity or question of intent or meaning arises with respect to any provision of this EULA, this EULA will be construed as being drafted jointly by Infrared5 and you, and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this EULA.
11.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. Infrared5 may modify this EULA from time to time by one of three methods: (i) posting the changes on the Website; (ii) providing notice of such changes to your Email Address; or (iii) signing a written agreement with you specifying changes to this EULA. You agree to be bound by such changes if you continue using the Software following the effective date of any such change to this EULA. Changes to this EULA are effective upon the earlier of: (i) Infrared5 posting notice of such changes on the Website; (ii) Infrared5 providing notice to your Email Address of such changes; or (iii) the signing of a written amendment modifying this EULA by both you and Infrared5. Other than as provided in this Section 11.3, this EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
11.4 Supersession. This EULA, Additional Terms, or both may be superseded by a subsequent version of this EULA or Additional Terms, as the case may be. Such supersession may occur if you download, install, or use Software or Software upgrades or updates. This EULA supersedes prior EULA versions under which the Software was licensed to you.
11.5 Assignment. You may not assign this EULA or any interest in this EULA without the prior written approval of Infrared5.
11.6 Notices. Notices required by or related to this EULA from you must be sent via U.S. Mail or reputable overnight carrier, return receipt requested, to the attention of "Legal Department" at Infrared5's then-current mailing address, which is presently 500 Amory St., Suite 2, Jamaica Plain, MA 02130 USA. Infrared5 may provide notices required by or related to this EULA to you at your Email Address.
11.7 Severability. If a provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
11.8 Relationship of You and Infrared5. This EULA shall not be construed to create any employment, partnership, joint venture, franchise, or agency relationship between you and Infrared5, or to authorize either party to enter into any commitment or agreement binding on the other party.
11.9 No Responsibility for Content. You acknowledge and understand that the Content is entirely your responsibility. You acknowledge, agree, and agree to assert and acknowledge in legal proceedings that Infrared5 exercises no control whatsoever over the Content and that Infrared5 will not be liable for Content.
11.10 Representations. You represent and warrant that you are authorized to enter into this EULA and comply with its terms, and are of legal age to do the same. Furthermore, you represent and warrant that you will at all times meet your obligations hereunder, and comply with all laws, regulations, and policies that apply to use of the Software. If you are entering into this EULA on behalf of an entity or organization, you represent and warrant that you have full authority to do so and to bind that entity or organization.
11.11 Force Majeure. Neither party shall be in default by reason of any failure in performance of this EULA, except for an obligation to pay money, if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, terrorist act, United States of foreign governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic, restriction, strikes, or freight embargos.
11.12 Governing Law. This EULA will be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law principles. Except as provided in the following Section 11.13, you and Infrared5 hereby agree to submit to the exclusive jurisdiction and venue of the courts of Suffolk County, Commonwealth of Massachusetts for any dispute arising out of or related to this EULA or any of the subject matter hereof. The United Nations Convention for the International Sale of Goods shall not apply to this EULA or the Software.
11.13 ARBITRATION FOR NON-U.S. LICENSEES. IF YOU RESIDE (IF YOU ARE AN INDIVIDUAL) OR ARE DOMICILED (IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF AN ENTITY) OUTSIDE OF THE UNITED STATES, ANY CLAIM OR DISPUTE BROUGHT BY YOU AND ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE SHALL BE SUBMITTED TO BINDING ARBITRATION IN BOSTON, MASSACHUSETTS, USA UNLESS INFRARED5 AGREES IN WRITING TO WAIVE SUCH REQUIREMENT. Such arbitration shall be before an arbitrator-member of the American Arbitration Association ("AAA") to be mutually agreed to by the parties, or, in the event the parties cannot agree on a single such arbitrator-member, to a panel of three arbitrator-members selected in accordance with the rules of the AAA. The dispute shall be settled in accordance with the Commercial Arbitration Rules of the AAA and the decision of the arbitrator(s) shall be final and binding upon the parties and judgment may be obtained thereon in a court of competent jurisdiction. The prevailing party shall be entitled to recover from the other party the fees and expenses of the arbitration as well as reasonable attorneys' fees, costs and expenses incurred by the prevailing party. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards shall apply to this EULA if you reside or are domiciled outside of the United States.
11.14 Contact Information. If you have any questions about this EULA, please contact Infrared5 at info@Infrared5.com.
11.15 Survival of Terms. The following terms shall survive termination of this EULA: Sections 1, 2.4, 2.5, 6, 7.2, 8, 9, 10, and 11.

12. NOTICE TO U.S. GOVERNMENT END USERS.
12.1 Commercial Items. The Software, including all related documentation, are "Commercial Item(s)," as that term is defined at 48 C.F.R. Section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12.2 U.S. Government Licensing of Infrared5 Software. You agree that when licensing the Software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, Infrared5 agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.