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(k) "Surge Capacity Plan" means an optional emergency response program which permits Licensee to increase the number of Users to support response to or recovery from an incident declared a disaster by a state or federal government agency. (1) "Term" means the period of years for which Licensee has elected to license the Software. (m) "User" means any person to whom Licensee has provided a user account for the Software. 3 Ownership and Licensing Authority. (a) Ownership of, and title to, the Software and Documentation shall be held by ESi and its licensor(s) and is protected by United States law and applicable international laws, treaties and conventions regarding intellectual property. ESi warrants that it has the power and authority to grant the license described herein. ESi and its licensor(s) shall retain all rights, title and ownership not granted herein to all copies of the Software and Documentation licensed under this Agreement. (b) ESi represents and warrants that it is authorized to redistribute and license any third party software delivered with the Software and Documentation provided under this Agreement. The owner of such third party software shall have the right to enforce this Agreement to the extent permitted by applicable law. 4 Grant of License. ESi grants to Licensee, and Licensee accepts, subject to the following terms and conditions and payment of the applicable license fee, a limited non-exclusive, non -transferable, and non-sublicensable right, revocable according to the terms stated herein, to use the Software and Documentation for the stated Term. 5 Permitted Uses. (a) Licensee may install and use one (1) Instance of the Software on one (1) Machine. As used herein, Machine means a single laptop, personal computer or web server, or a combined web and database server or multiple load -balanced web servers, configured to point to a single database and database server that is used operationally or "in production" ("Instance"). (i) Licensee may use the Software and Documentation solely for Licensee's internal business purposes. (ii) Licensee also may make one (1) copy of the Software for back-up or archival purposes. (iii) License also may install the Software to support "non -production" software development cycle activities as set forth in Exhibit A to this Agreement (iv) If Licensee requires or desires operational use of more than one Instance of the Software, an additional License(s) shall be required. (b) The Software is licensed on a named and active user baser. Each User shall have a unique user account. User accounts shall not be shared. Licensee may provide access to the number of Administrators and Users set forth in Exhibit A to this Agreement. User counts are based on the average number of unique log -ins each month. ESi shall have the right to conduct regular audits of Licensee compliance with the number of Users permitted under this Agreement. Licensee agrees to provide ESi with the information required to complete such audits. Such audits shall be conducted at ESi expense, except that Licensee shall be responsible for reimbursing ESi for all reasonable audit expenses if Licensee shall be found in violation of the User limits set forth in this Agreement. Licensee shall be in violation of User Rev 01/13/2014