On-Demand Service Agreement
BY REGISTERING OR USING ETOUCH SYSTEMS ONLINE SERVICE (THE "SERVICE" AS DEFINED BELOW), OR CLICKING THE "REGISTER" BUTTON DISPLAYED AS PART OF THE SUBSCRIPTION PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE SERVICE. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND THE TERM "YOU", "YOUR", or "COMPANY" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST CHOOSE THE "CANCEL" OR "BACK" BUTTON AND YOU SHALL NOT USE THE SERVICE.

Welcome
As part of the Service, eTouch Systems will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the eTouch Systems website (www.etouch.net) incorporated by reference herein, including but not limited to eTouch privacy and security policies.

The Service is offered in both commercial and trial versions. This agreement governs the use of the Service under each version. Please refer to our web site for feature and term differences between the various versions.

1. Definitions:
   
   1.1 "Content" shall mean the audio and visual information, documents, software, products and service contained or made available to you in the course of using the Service.

   1.2 "Company's Data" shall mean any data, information or material submitted by the Company to the Service in the course of using the Service;

   1.3 "Initial Term" shall mean the initial period of time in which Company pays to receive the Service and which shall also determine Company's billing frequency.

   1.4 "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Agree" option presented on the screen after this Agreement is displayed or the date you begin using the Service;

   1.5 "License Administrator" shall mean the person that Company designates to purchase usage of the Services by executing Order Form online or in written form and to create accounts for additional Users or otherwise administer the Company's use of the Service.

   1.6 "License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);

   1.7 "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);

   1.8 "Service(s)" shall mean the providing of access via the Internet to a specific edition of eTouch Systems software, any applicable eTouch Systems Technology and other associated services identified during the ordering process which are developed, operated, and maintained by eTouch Systems.

   1.9 "eTouch Systems Technology" shall mean all of the eTouch Systems's proprietary technology (including, but not limited to, hardware, software, documents, processes, algorithms, user interfaces, and know-how) and services made available by providing the Service to Company.

   1.10 "eTouch Systems Intellectual Property" shall mean any of eTouch Systems's inventions, patents and applications therefore, copyrights, trademarks, service marks, trade names, domain name rights, and other trade secret rights, and all other intellectual property rights.

   1.11 "User(s)" shall mean Company's employees, consultants, contractors or agents authorized by the License Administrator to use the Service.

2. License Grant:
   
   Subject to the terms and conditions of this Agreement, eTouch Systems hereby grants Company a non-exclusive, non-transferable, right to use the Service and eTouch Systems Technology for the term of this Agreement, solely for Company's own internal business purposes. All rights not expressly granted to Company are reserved by eTouch Systems and its licensors.
3. Restrictions:
   
   Company shall not, directly or indirectly, (i) sublicense, resell, rent, lease, distribute, or otherwise transfer rights or usage to the Service or eTouch Systems Technology for any purpose including timesharing or service bureau purposes; (ii) modify or make derivative work based on the Service (iii) create Internet links to the Service, (iv) "frame", "fork" or "mirror" any eTouch Systems Technology on any other device; or (v) reverse engineer the eTouch Systems Technology or access the Service or copy any ideas, features, functions or graphics of the Service for any purpose other than what is contemplated in this Agreement.
4. Company's Responsibilities and Data:
   4.1 Company's Responsibilities: You are solely responsible for all activity occurring under your User accounts and are solely responsible for compliance with all applicable local, state, national and foreign laws, treaties and regulations relating to your use of the Service, including those related to the protection of intellectual property, data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify eTouch Systems immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to eTouch Systems immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you.

   You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, Internet browsers operating system, networking, web servers, long distance and local telephone service, but excluding the Service itself (collectively, "Equipment"). You shall be responsible for ensuring that such Equipment is compatible with the Service. You shall also be responsible for the use, and maintaining the security, of the Equipment.

   As a condition to your use of the Service, you agree not to:

   1. upload, store, post, link to, email or otherwise transmit, distribute, publish or disseminate any Information, Content or other materials (i) that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, objectionable or libelous, or promotes such activity; (ii) that (or the transmission, distribution, publication or dissemination of which) infringes any patent, trademark, trade secret, copyright, or other rights or proprietary rights of any party, violates any contractual or fiduciary relationships (such as inside, proprietary or confidential information); (iii) that is harmful to minors; or (iv) that contains software viruses, trojan horses, worms, time bombs, cancelbots or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or circumvent any "copy-protect" devices, any other harmful or disruptive program, or any warez, cracks, hacks, associated utilities or other piracy related information;
      
   2. provide inaccurate, incomplete, outdated or misleading Registration Information or e-mail addresses, create a false identity or manipulate identifiers to mislead or to disguise the origin of any information transmitted through the Services, or impersonate or otherwise misrepresent any affiliation with any person or entity;
      
   3. modify, use, download, publish, upload, post, transmit, transfer, sell, reproduce, create new or derivative works from, license, distribute, perform, display, broadcast, exploit or otherwise copy any portion of the Services, Service Name, or any Content, or any products or other services (including software) obtained there from, or permit access to the same by any unauthorized person or entity;
      
   4. use any manual or automated software, devices, or other processes to "crawl," "spider" or "screen scrape" any web pages contained in this web site or the Service;
      
   5. reverse engineer, decompile or disassemble any of the software used to provide this web site or the Service;
      
   6. interfere with or disrupt any links or click-through URLs provided through the Services, or servers or networks connected to the Services, or violate the regulations, policies or procedures of such servers or networks, or interfere with another subscribing Company use and enjoyment of the Services;
      
   7. attempt to gain unauthorized access to the Services, Content, other Company's Sites, Registration Information, Site Information or Personal Information, or other computer systems, servers or networks connected to the Services; or
      
   8. violate (intentionally or unintentionally ) any applicable local, state, national or international law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any securities exchange of any jurisdiction, laws regarding the transmission through the Services of technical data or software exported from the United States and/or the country(ies) in which the Company and/or its members reside, and laws and regulations regarding online conduct and acceptable content of the subscribing Company's and its members' transmissions, site and site information.
      

   eTouch Systems reserves the right to investigate and prosecute violations of any of the above to the fullest extent of the law. eTouch Systems may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. You acknowledge that eTouch Systems has no obligation to pre-screen or monitor your access to or use of the Service or any information, materials or other content provided or made available through this web site, but has the right to do so for the purpose of operating the Service, to ensure your compliance with this Agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. You hereby agree that eTouch Systems may, in the exercise of eTouch System's sole discretion, remove or delete any postings, information, materials or other content that violates this Agreement or that is otherwise objectionable.
   

   4.2 User Accounts: Company shall designate a License Administrator and notify eTouch Systems of the identity and contact information for said License Administrator. The License Administrator may add Users to the Service by placing an order with eTouch Systems. Company is responsible for all activity occurring under Company's User's accounts. Company shall notify eTouch Systems immediately of any unauthorized use of any password, account, copying or distribution of the eTouch Systems Technology. User accounts cannot be shared or used by more than one individual User but may be reassigned to new Users replacing former Users.
   

   4.3 Company's Data: eTouch Systems does not own any data, information or material that Company submits to the Service in the course of using the Service. Company is solely responsible for the accuracy, integrity, and legality, reliability, appropriateness, and intellectual property ownership or right to use of all Company's Data. eTouch Systems shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Company's Data. In the event this Agreement is terminated (other than by reason of your breach), eTouch Systems will make available Company's Data within 30 days of termination if you so request at the time of termination. eTouch Systems reserves the right to withhold, remove and/or discard Company's Data without notice for any breach, including, without limitation, Company's non-payment. Upon termination for cause, your right to access or use Company's Data immediately ceases, and eTouch Systems shall have no obligation to maintain or forward any Company's Data.
5. eTouch Systems Responsibilities
   
   5.1 Availability
   1. eTouch Systems would make all reasonable efforts to maintain an uptime of 98 % or higher (which implies a maximum downtime of up to 7.3 days in a calendar year) for its Service. It should be noted that Service Uptime may not directly translate to Service Availability since Service Availability also depends on other factors like network availability, load on the Internet which may be beyond our control.
   2. Planned downtimes for applying system patches and software upgrades will be restricted to the Scheduled Maintenance Window as published on the eTouch Systems support site.
   
   
   5.2 Security
   eTouch Systems would make all reasonable efforts to ensure the security of Company Data.

   This would include:

   1. Hosting the servers in a secure data center that would ensure physical security of the servers and the resident Company Data. The security features in the data center would typically include 24x7 monitoring, video surveillance, biometric security systems , keycard entries etc
   2. Securing the infrastructure behind firewalls to protect against viruses, DOS attacks etc
   3. Restricting access to the servers including the file-system/database where the Company Data resides only to authorized personnel within the eTouch Systems support team to facilitate software upgrades, patches, backups etc.
   4. Restricting access to the Company Data though the Service interface
      1. only to authorized personnel within the support team
      2. only in case of support emergencies reported by the Company and
      3. only after obtaining verbal or written consent from the Company
   
   
   eTouch Systems will not be responsible for any breach of security that happens due to any negligence by the Company or its Users including but not limited to :
   1. Incorrect access configuration for the Domain/Projects within the Service
   2. Intentionally or unintentionally emailing or forwarding links or content from the Service to anyone including the support team.
   3. Intentionally or unintentionally sharing passwords with anyone including the support team or leaving passwords or sessions unattended.
   
   
   5.3 Privacy
   eTouch Systems would make all reasonable efforts to ensure the privacy of Company Data and abide by the Privacy Statement as published on the eTouch Website.
   
   
   5.4 Backups
   eTouch Systems would be taking daily backups of the entire system (database, file systems) and would make all reasonable efforts to restore the Company Data (as of 24 hours earlier) in case of any database or disk failure.
6. Intellectual Property Ownership:
   eTouch Systems and its licensors own all right, title and interest to the eTouch Systems Intellectual Property, the eTouch Systems Technology, the Service and any modifications, ideas, or recommendations provided by Company. This Agreement does not convey or transfer any ownership rights in the Service, eTouch Systems Technology or eTouch Systems Intellectual Property. The eTouch Systems name, logo, and trade names are trademarks of eTouch Systems and no right is granted to use them except as granted herein.
7. Payment Terms:
   7.1 Fees: Company shall pay all fees or charges associated with providing the Service in accordance with the fees, charges, and billing terms in effect at the time a charge is due and payable. The initial charges shall be based on the total number of Users at the time of signing up in accordance with the Service prices at the time of ordering the Service. Company shall pay for all User fees ordered for an entire term, whether or not all Users use the Service. Company shall make future fee payments for renewal annually or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. All payment obligations are non-cancelable and all amounts paid are non-refundable. Company must provide eTouch Systems with a valid credit card or approved purchase order prior to receiving the Service. Company shall make fee payments for added Users during any term of this Agreement. Additional User fees shall be assessed at the then current rate and, if added in the middle of a billing cycle, charged for a full cycle. eTouch Systems reserves the right to modify its fees upon 30 day prior written notice which may be provided by e-mail. eTouch Systems will automatically bill Company's credit card or issue an invoice to Company in the billing frequency established by the length of Company's Initial Term. The renewal charge will be based on the number of Users in accordance with then current Service prices. Company agrees to provide eTouch Systems with complete and accurate billing and contact information. eTouch Systems may terminate the Service if the billing or contact information is false or fraudulent.

   7.2 Non-Payment: eTouch Systems may terminate this Agreement and Company's access to the Service for Company's non-payment of fees. eTouch Systems has no obligation to retain any of Company's Data which may be irretrievably deleted if Company's account is delinquent by more than 30 days. Company agrees that eTouch Systems may charge unpaid fees to Company's credit card or otherwise bill Company for unpaid fees.

8. Term and Termination:
   8.1 Term: This Agreement shall commence on the Effective Date. For Personal Edition licenses, the term is indefinite and may be terminated at any time in eTouch's sole discretion. The Initial Term will be for the period of time the Company elects during the subscription process and shall commence on the day the Company pays for the Service. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at eTouch Systems's then current fees. In case of Users who are authorized and added after the beginning of the Initial Term, the term of their usage of the Service shall be coterminous with the preexisting term. Company may request Company's Data upon termination or expiration of this Agreement and eTouch Systems will make available to Company Company's Data within 30 days. Company agrees that eTouch Systems has no obligation to retain Company's Data, and may delete Company's Data, more than 30 days after termination. eTouch Systems shall have no obligation to maintain or forward any of Company's Data if eTouch Systems terminates this Agreement for cause.
   
   
   8.2 Termination: Company may terminate this Agreement or reduce its number of Users at the end of a term by notifying eTouch Systems in writing at least ten (10) business days prior to the end of a term. eTouch Systems may terminate this Agreement without cause or reduce the number of Users at any time by notifying Company in writing at least thirty (30) days prior to such termination. eTouch Systems may terminate Company's use of the Service if, in eTouch Systems's sole discretion, Company breaches or otherwise fails to comply with this Agreement. Company agrees that eTouch Systems has no obligation to retain Company's Data, and may delete Company's Data, if Company has breached this Agreement and such breach is not cured within 30 days of notice of such breach. Company's obligation to make a payment of any outstanding, unpaid fees shall survive termination of this Agreement.
9. Representations & Warranties:
   eTouch Systems will provide the Service in a manner consistent with general industry standards and the Service will perform substantially in accordance with any documentation provided by eTouch Systems. If any portion of the eTouch Systems Technology is held to infringe any third party intellectual property rights, then eTouch Systems will, at its expense and option: (i) obtain the right for Company to continue to use the Service; (ii) modify the software so that it is non-infringing; or (iii) replace the infringing component with a non-infringing component.
10. Disclaimer of Warranties:
    THE SERVICE AND THE ETOUCH SYSTEMS TECHNOLOGY IS PROVIDED TO COMPANY STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ETOUCH SYSTEMS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) THE SERVICE OR ETOUCH SYSTEMS TECHNOLOGY WILL MEET COMPANY'S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICE OR ETOUCH SYSTEMS TECHNOLOGY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ETOUCH SYSTEMS'S SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND ETOUCH SYSTEMS IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
11. Limitation of Liability:
    NEITHER PARTY SHALL BE IN BREACH OF THIS AGREEMENT DUE TO FAILURE OF PERFORMANCE THAT ARISES OUT OF CAUSES BEYOND ITS REASONABLE CONTROL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ETOUCH SYSTEMS BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR ETOUCH SYSTEMS'S PERFORMANCE INCLUDING WITHOUT LIMITATION (A) THE ETOUCH SYSTEMS TECHNOLOGY OR THE SERVICES, (B) ANY INTERRUPTION OF USE OF THE ETOUCH SYSTEMS TECHNOLOGY OR THE SERVICE OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF COMPANY DATA, EVEN IF ETOUCH SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ETOUCH SYSTEMS'S LIABILITY HEREUNDER EXCEED THE AMOUNT THAT COMPANY PAID TO ETOUCH SYSTEMS UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE MONTHS.
12. General:
    12.1 Assignment. Company may not assign this Agreement or any rights or obligations herein.
    
    
    12.2 Modifications. eTouch Systems reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on its website. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
    
    
    12.3 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
    
    
    12.4 Governing Law. This Agreement shall be governed by the laws of the State of California without regards to its conflicts of law provisions. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Santa Clara County, California, and each party hereby submits to the personal jurisdiction of such courts.
    
    
    12.5.Force Majeure. Except for Your obligation to pay for the Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
    
    
    12.6 U.S. Export Law. You acknowledge that the Services are subject to U.S. export control laws and regulations. You represent that you are not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. You will not use, export or allow a third party to use or export the Services in any manner that would violate applicable law, including but not limited to applicable export control laws and regulations.
    
    
    12.7 Complete Understanding. This Agreement, together with any applicable Order Form, constitutes the complete understanding of the parties, and supersedes all prior or contemporaneous agreements, negotiations, proposals, and understandings between the parties.
    
    
    12.8 Notice. Notices regarding this Agreement shall be in writing and addressed to Company at the address Company provides, or, in the case of eTouch Systems, when addressed to eTouch Systems, Inc., Attn. Legal Counsel, 6627 Dumbarton Circle, Fremont, CA 94555, USA.