HotChalk, Inc. Standard Terms and Conditions of Purchase

Purchaser and Seller agree to be bound by the following Standard Terms and Conditions:

1. Purchaser’s Authorization. Purchaser represents and warrants that it has met all requirements necessary and is authorized to enter into the execution of Purchase Agreements with Seller and that the Purchaser’s signatory is authorized to sign on behalf of and contractually bind the Purchaser.
2. Terms of Use. Purchaser agrees that it and its designated end users will abide by Seller’s Terms of Use, incorporated herein by reference and posted at http://www.hotchalk.com
3. Support and/or Training. Seller shall provide user support and/or training for Seller’s Products as elected and purchased by Purchaser.
4. Limited Warranty. Warranties for Seller’s Products purchased under Purchase Agreement shall be as referenced in the Seller’s promotional documentation regarding the Products. Seller makes no other warranties with respect to its Products, either express or implied. Seller provides no representations or warranties that the Purchaser’s hardware or software environments and configuration are compatible or suitable for the operation of Seller’s Products  Seller specifically and expressly disclaims any and all other warranties, including but not limited to the implied warranties of merchantability or fitness for a particular purpose.
5. Seller’s Product Rights; Confidential and Proprietary Information. The intellectual property contained in Seller’s Products are considered Confidential and Proprietary Information and may contain information protected by copyright and other intellectual property laws. Confidential and Proprietary Information shall mean the source and object code, trade secrets, data, know-how, software, technology, intellectual property, methodologies, processes, content and other materials found in Seller’s Products. Neither party shall disclose the Confidential and Proprietary Information and the contents and terms of this Purchase Agreement without permission except that Seller may include the Purchaser as part of any general press release or other promotional or marketing materials about Seller’s business or where such disclosure is required by law.
6. Indemnification. Purchaser agrees to indemnify, defend and hold harmless Seller, its parent companies, subsidiaries, affiliates, directors, officers and employees from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner from a breach of the Purchase Agreement or from improper or unauthorized distribution or use of the Seller’s Products. Seller agrees to indemnify, defend and hold harmless Purchaser, its parent companies, subsidiaries, affiliates, directors, officers and employees from any claims, actions, damages, liabilities costs and expenses that arise from a claim of intellectual property infringement in connection with the Seller’s Products.
7. Limitation of Liability. In no event shall either party be liable for incidental, consequential, indirect or special damages including, without limitation, loss of profits or revenue.
8. Assignment. Purchaser may not assign, whether voluntarily or involuntarily, the Purchase Agreement or any of its rights or obligations to any third party without the prior written consent of Seller.
9. Default. In the event of any material breach of this Agreement by either Purchaser or Seller, each reserves the right to seek remedies in law and/or in equity.
10. Severability and Non-Waiver. In the event that any of the provisions of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. The waiver of any default or failure of performance hereunder shall not waive any subsequent defaults or failures whether of the same or different kind.
11. Termination of Agreement; Survival. Upon termination, Purchaser agrees to cease use of any and all of Seller’s Products. Sections 4, 5, 6, 7, 8, 10, 11, and 14 shall survive termination.
12. Paragraph Headings. The paragraph headings contained herein are for reference only and shall not be considered as substantive parts of this Agreement.
13. Referral Support. Purchaser agrees to be a referral for Seller. Purchaser also agrees to participate, if requested by Seller, in a White Paper, Press Release and/or research study to determine effectiveness of Seller’s Products.
14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California, and any action brought to enforce the provisions of this Agreement shall be brought in a court of competent jurisdiction in the County of Santa Clara, California. Purchaser agrees to the jurisdiction of state courts located in the County of Santa Clara, California, and to the federal court located in San Jose, California, without regard to conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for International Sale of Goods which shall not apply to this Agreement. Except for claims related to infringement or misappropriation of intellectual property rights, any other dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination or validity of this Agreement will be submitted to arbitration as prescribed herein. The parties understand and agree to select and mutually agree upon a single arbitrator engaged in the practice of law within thirty (30) days of receipt of a notice of intent to arbitrate. Such arbitrator will be knowledgeable about the computer software industry and computer software and will conduct the arbitration under the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitrator will be selected in accordance with AAA procedures from a list of qualified people maintained by the AAA. The arbitration will be conducted in the County of Santa Clara, California. The arbitrator’s decision and award will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereon. Any duty to arbitrate under this Agreement will remain in effect and enforceable after termination of this Agreement for any reason. The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses, including attorney’s fees. Any action or claim against Seller must be filed within one year of the date such claim arose.

Purchaser and Seller agree to abide by the foregoing Standard Terms and Conditions of Purchase, as they may be amended by Seller from time to time in its sole discretion.