Terms and Service

Last Updated: October 7, 2022 (see previous versions: December 2021 and October 2020). 1. DEFINITIONS 

1.1 Defined Terms. Defined terms have the meanings set forth in this Section 1 (Definitions) and  elsewhere in this Agreement when capitalized, and may be read in singular, plural or an alternative  tense as the context requires. 

1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under  common control with the subject entity. For purposes of this definition, “control” means direct or  indirect ownership or control of more than 50% of the outstanding voting interests of the subject entity. 

1.3 “Agreement” means this Master Subscription Agreement and applicable Statements of Work  and Order Forms executed between Customer and Company. 

1.4 “Beta Services” “means products, data cuts, services, integrations, or other features that  Company makes available to Customer to try at Customer’s option, at no additional charge, and are  designated as beta, limited release, preview, non-production, or other similar description. 

1.5 “Company” means RFPIO, Inc. a Delaware corporation with an office located at 4145 SW  Watson Ave. Suite 450, Beaverton, OR 97005 and its Affiliates. 

1.6 “Confidential Information” means information which is proprietary to or confidential to the  Disclosing Party (as defined in Section 5.1) or its Affiliates, including, without limitation, information  relating to the Disclosing Party’s business, marketing plans, financial affairs and product development  efforts, patents, patent applications, research, product plans, products, developments, inventions,  processes, designs, drawings, engineering, formulae, markets, software (including source and object  code), hardware configuration, computer programs, algorithms, business plans, agreements with third  parties, services, strategy, trade secrets, know-how, technical information, specifications, past, present  and future operations, partner, client, and supplier identities, and other non-public information,  whether tangible, intangible, visual, electronic or otherwise, together with notes, analysis, compilations,  projections, and/or other documents prepared by either party, their directors, officers, employees,  agents and representatives, based upon, containing or otherwise reflecting such information. 

1.7 “Customer” means the entity identified on the Order Form or SOW (by its legal name or its  other assumed, trade, or ‘doing business as’ name) that purchased Company’s Software or Services  pursuant to an Order Form or SOW, or such company’s permitted Affiliates, successors or assigns. 

1.8 “Customer Data” means all information Customer, or its Users loads into the Software or  otherwise provides to Company to enable the provision of the Software and Services (or provides to Company for loading or inputting into the Software on Customer’s behalf), and any information  provided by Customer relating to its use of Professional Services. 

1.9 “Customer Input” means any information or feedback Customer provides or has provided to  Company as an idea, feature request, enhancement, or bug-fix in respect to the Software, Services, or  other product offerings of Company.

1.10 “Documentation” means the applicable training materials, user guides, publicly available  marketing and/or proposal materials, and other similar information, or other documents disseminated  under or governed by confidentiality obligations which pertain to the Software or Services provided by  Company, which may be updated by Company at any time without notice to include information about  new features and incorporate feedback to help Company’s customers understand how to use the  Software and Services. 

1.11 “Effective Date” means the date the Agreement becomes effective when duly executed by  both Parties or as otherwise described in an applicable Order Form. 

1.12 “Fee(s)” means any and all charges due and owing pursuant to this Agreement including any  applicable Order Form or SOW, and any charges due and owing pursuant to Software, Services or Professional Services. 

1.13 “Initial Term” has the meaning set out in the Order Form. 

1.14 “Indemnified Party” means the Party seeking indemnification under Section 10. 1.15 “Indemnifying Party” means the Party from whom indemnification is sought under Section 10. 

1.16 “Intellectual Property Rights” or “IP” means all intellectual and industrial property rights,  whether now existing or existing in the future, including without limitation, (i) all patent rights, including  any rights in pending patent applications and any related rights; (ii) all copyrights and other related  rights throughout the world in works of authorship, including all registrations and applications therefor;  (iii) all trademarks, service marks, trade dress or other proprietary trade designations, including all  registrations and applications therefor (iv) all rights throughout the world to proprietary know-how,  trade secrets and other confidential information, whether arising by law or pursuant to any contractual  obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property  recognized in any jurisdiction. 

1.17 “Order Form” means Company’s standard ordering document that identifies the Software and  Services purchased by Customer and incorporates this Agreement by reference. 

1.18 “Party” or “Parties” means Customer and Company, collectively. 

1.19 “Personal Health Information” means individually identifiable information relating to the past,  present, or future health status of an individual that is created, collected, or transmitted, or maintained  by a HIPAA-covered entity in relation to the provision of healthcare, payment for healthcare services, or  use in healthcare operations. 

1.20 “Personal Information” means any information relating to natural persons who can be  identified or who are identifiable, directly from the information in question; or who can be indirectly  identified from that information in combination with other information or as may otherwise be specified  in applicable Privacy Laws. For example: names, social security number, email address, and inferences  from other personal information that could create a profile about your preferences and characteristics. 

1.21 “Privacy Laws” means any and/or all domestic and foreign laws, rules, directives and  regulations, on any local, provincial, state, federal or national level that deal with the data privacy, data 

security and/or the regulating, storing, and using of Personal Information and/or Personal Health  Information. 

1.22 “Professional Services” means non-standard onboarding, customized training, best practices  review, professional services hours, development support and other services related to the Software or  Services and identified in an SOW, but not otherwise provided as part of the standard Software or  Services. 

1.23 “Renewal Term” has meaning set out in Section 7.1 

1.24 “Service Data” means aggregated data and other information about Customer’s use of the  Software and Services (e.g., the number of projects, the frequency of logins, and User behavioral data),  but does not include identifiable Customer Data loaded into the Software. 

1.25 “Services” means standard onboarding, implementation services, technical support services  and other services provided by Company and as described in an Order Form or this Agreement but shall  exclude all Professional Services. 

1.26 “Statement of Work” or “SOW” means Company’s standard ordering document that identifies  the Professional Services purchased by Customer and references this Agreement. 

1.27 “Software” means the proprietary products provided by Company or its licensors identified on  an Order Form and subsequently made available to Customer by Company in accordance with an Order  Form or this Agreement. 

1.28 “Subscription Term” means the duration of Customer’s subscription to the Software or Services  as set forth in each applicable Order Form or SOW and all Renewal Terms. 

1.29 “Updates” means any error correction, bug fix, patch, enhancement, improvement, update,  upgrade, new version, release, revision or other modification to the Software or Services provided or  made available by Company pursuant to this Agreement, including without limitation, any update  designed, intended or necessary to make the Software, Services or Customer’s use thereof comply with  applicable law. 

1.30 “User” means Customer’s and its Affiliates’ employees, representatives, partners and  contractors and consultants that are authorized by Customer to use and access the Software and  Services through Customer’s Account (defined in Section 2.2 below). 

2. SOFTWARE AND SUPPORT 

2.1 Subject to the terms of this Agreement, Company will provide Customer with a non-exclusive,  non-transferable, revocable license (which may only be revoked in the case of uncured material breach  of this Agreement) to use the Software and Services in accordance with the Documentation. Company  

shall exclusively own and retain all rights, title and interest in and to the Software, Services, and  Documentation, including all related Company Intellectual Property Rights or other similar rights, which  shall not include Customer Data. Company’s Intellectual Property Rights shall extend to all Updates,  customizations or other changes to the user interface, functionality, compatibility, capabilities,  performance, efficiency, or quality of Software and Services developed by Company at any time.

2.2 During the Subscription Term, Company will provide Customer access to, and use of, the  Software, Services, and Documentation by enabling an account for Customer to access through a web  browser (herein “Account”). Customer will designate individuals authorized by Customer to manage,  use, and support the Account, including, the creation of usernames and passwords for Users. Customer  is solely responsible for maintaining the status of its Users and the confidentiality of all usernames,  passwords, and other Account access information under its control. Customer will contact Company  promptly if Account information is lost, stolen, or disclosed to an unauthorized person or any other  breach of security in relation to its passwords, usernames, or other Account access information that may  have occurred or is likely to occur. 

2.3 The Software is not designed to host, process, or store sensitive Personal Information and/or  Personal Health Information. Customer is responsible for ensuring that the use of the Software and  provision of any such Personal Information is in compliance with applicable Privacy Laws. Customer  represents that it has obtained all necessary notice, consents, and authority to upload any such Personal  Information into the Software. 

2.4 Customer understands that any Personal Information will be treated in accordance with  Company’s Privacy Policy, accessible via http://www.rfpio.com/privacy-policy/ (the “Privacy Policy”).  Company reserves the right to update the Privacy Policy and shall provide notice to the Customer of any  material changes to the Privacy Policy. 

2.5 Company may make Beta Services available to Customer. Customer may choose to try such  Beta Services in its sole discretion. Beta Services are intended for evaluation purposes only and not for  production use, are not fully supported by this Agreement, and may be subject to additional terms. Beta  Services are not considered Software or Services under this Agreement, but all restrictions, reservation  of rights, Customer’s obligations concerning the Software and Services, and rights granted by Customer  to Company regarding Customer Data will apply equally to Customer’s use of Beta Services. Company  may discontinue Beta Services at any time in its sole discretion and may never make them generally  available. Unless otherwise agreed by the Parties, Customer’s use of Beta Services shall expire on either  (a) the date a version of such Beta Services becomes generally available as Software and Services  without the applicable Beta Services designation; or (b) the date that the Company discontinues such  Beta Services. Beta Services are provided “AS IS” and Company will have no liability for any harm or  damage arising out of Beta Services. 

2.6 Company shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable,  perpetual license to use or incorporate any Customer Input into the Software or Services. Company shall  have no obligation to use or incorporate Customer Input into the Software or Services. Customer shall  have no obligation to provide Customer Input. In the event that Company utilizes any Customer Input in  the creation of any product feature, enhancement or otherwise, at no time shall such product contain or  reference any Customer Data or Customer Confidential Information. 

2.7 Company will provide technical support to Customer via telephone and electronic mail Monday  – Friday, twenty-four (24) hours each day, with the exclusion of nationally recognized holidays (“Support  Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling 971-470-3112 or any  time by emailing [email protected] .

2.8 Company will provide the Service in accordance with the Company’s Service Level Agreement,  accessible via https://www.rfpio.com/sla (“SLA). The SLA shall only apply to Customer when Software  and Services are purchased by Customer and identified in an Order Form or SOW. Company will make  improvements to the Software and Services and make Updates to the Software and Services as deemed  appropriate by Company. 

2.9 All Order Forms are subject to the terms and conditions of this Agreement. The terms of an  Order Form, including the terms of this Agreement, and any exhibits hereto, supersede any and all pre printed or standard terms that may appear on any other documents. 

2.10 From time to time, Customer may request that Company provide Professional Services in  connection with the Software or Services in accordance with terms mutually agreed upon in the  applicable SOW and as otherwise set forth in this Agreement. Unless otherwise agreed, Company shall  provide such Professional Services on an hourly basis at the hourly rate specified in the applicable SOW.  Company shall provide an estimate of the charges for any Professional Services. With respect to any  deliverables (which shall be defined in the applicable SOW) associated with the Professional Services,  Customer shall have a license to access and use such deliverables concurrently with the access and use  of the Software and Services during the Subscription Term. All title, ownership rights and world-wide  Intellectual Property Rights in and to any scripts, software, documentation, materials, methodologies,  knowhow or other such information or materials that are developed or provided by Company in the  course of delivering the Professional Services, is and will remain the exclusive property of Company (or  its Affiliates and/or licensors as applicable). Customer may, subject to payment of all Fees due under this  Agreement, retain any deliverables provided to it under a SOW and may use such deliverables for its  own internal purposes to the extent that such retention and use does not violate the terms of this  Agreement. This Agreement does not contemplate any customized products, services, work-for-hire, or  code developed exclusively for Customer. In the event the Parties agree that Company shall provide  such non-standard Professional Services, the description of the services and applicable ownership rights  with respect to such Professional Services will be set forth in a separately executed Professional Services  Agreement (“Professional Services Agreement”). This Agreement does not contemplate any IP rights  beyond the terms provided herein. 

3. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS 

3.1 Customer shall be responsible for obtaining and maintaining any equipment and ancillary  services needed to connect to, access or otherwise use the Software and Services, including, without  limitation, modems, hardware, servers, software, operating systems, networking, and web servers  (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the  Equipment, Customer Accounts, passwords (including but not limited to administrative and user  passwords) and files, and for all uses of Customer Accounts or the Equipment. 

3.2 Except as expressly authorized in this Agreement, Customer and its Users shall not, directly or  indirectly: (i) sublicense, rent, lease, sell, loan, transfer, distribute, translate, reverse engineer,  decompile, or disassemble or otherwise obtain or attempt to create, derive, or obtain the source code  of the Software or Services; (ii) modify, enhance or otherwise change the Software or Services or  prepare derivative works based on the Software or Services; (iii) copy or otherwise reproduce any  features, functions, integrations, interfaces or graphics of the Software, Services or Documentation; (iv)  remove, obscure, or alter any notice of copyright, trademark or other proprietary right appearing in or 

on any item included with the Software, Services or Documentation; (v) circumvent or attempt to  circumvent any methods employed by Company to control access to the components, features or  functions of the Software or Services, or to prevent unauthorized use of the Software or Services; (vi)  use or otherwise exploit the Software or Services for any purpose, commercial or otherwise, other than  the intended purpose; or (vii) use the Software or Services for purposes of competitive analysis or the  development of a competing software product. 

3.3 Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all  Customer Data; and (b) preserve and maintain the login credentials for the access to, or use of the  Software and Services and notify Company promptly of any such unauthorized access or use caused  from the failure to preserve and maintain such login credentials. Customer shall not: (i) use the Service  in violation of applicable laws; (ii) in connection with the Software and Services, send or store infringing,  obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy  rights; (iii) send or store malicious code in connection with the Software and Services; (iv) interfere with  or disrupt performance of the Software and Services or the data contained therein; or (v) attempt to  gain access to the Software or Services or its related systems or networks in a manner not set forth in  the Documentation. Customer shall be liable for the acts and omissions of all Users and Customer  Affiliates relating to this Agreement. 

3.4 Customer shall not store, or process Personal Information under applicable Privacy Laws in the  Software, including but not limited to Personal Health Information, social insurance, social security or  credit card numbers. 

4. COMPANY OBLIGATIONS 

4.1 Company will at all times comply with all applicable laws and industry standards in the  performance of its obligations under this Agreement and shall obtain all rights and licenses required  from third parties to operate, use, license and provide the Software and Services, and otherwise  perform its obligations under this Agreement. 

4.2 Company will provide the Software and Services using technology at a level current with the  technology that Company implements for all of its customers and at least comparable to the level of  technology generally adopted in the applicable industry for provision of similar services. 

4.3 Company shall implement and maintain an information security program appropriate for  development or provisioning of the Software or Services (“Information Security Program”). The  Information Security Program will provide for effective administrative, physical, and/or technical  safeguards sufficient to protect Customer’s Confidential Information and Customer Data from  unauthorized access, acquisition, or disclosure, destruction, alteration, misuse, or damage, and include  as applicable, corresponding policies, procedures, and risk assessments that are reviewed at least  annually. The Information Security Program shall be consistent with applicable best practices in the  industry. The Information Security Program shall, at a minimum: (i) limit access to Customer Confidential  Information and Customer Data to personnel who have a need to know or otherwise access it in order  to fulfill Company’s obligations under this Agreement; (ii) secure business facilities, data centers, paper  files, servers, backup systems, and computing equipment with information storage capability; (iii)  implement network, system, application, and database security; (iv) secure information transmission,  storage, and disposal; (v) implement authentication and access controls within media, applications, 

operating systems, and equipment; (vi) logically segregate Customer Confidential Information and  Customer Data from information of Customer or its other client so that it is not commingled with any  other types of information; (vii) conduct risk assessments, penetration testing, and vulnerability scans  and implementing, on a risk-based approach, corrective action plans to correct any issues identified as a  result of any of the foregoing; (viii) implement appropriate personnel security and integrity procedures  and practices, including conducting background checks consistent with applicable law; and (ix) provide  appropriate privacy and information security training to Company’s employees. Company shall maintain  a disciplinary process to address any unauthorized access, use, or disclosure of Customer Confidential  Information or Customer Data by any of its officers, partners, principals, employees, agents,  subcontractors, or users. 

4.4. Company’s Data Processing Addendum is accessible via https://www.rfpio.com/dpa (“DPA”)and  is incorporated in the Agreement by reference when the EU and/or UK General Data Protection  Regulation (“GDPR”) or California Consumer Privacy Act (“CCPA”) applies to Customer’s use of the  Software and Services. 

4.5 Company uses sub-processors for various functions and provisioning of the Software and Services  a current list of which is accessible via https://www.rfpio.com/dpa-sub-processor-list. Customer’s use of  the Software and Services, including any features or functions provided by the Services with sub processors is governed solely by this Agreement unless terms are expressly agreed to between  Customer and the sub-processor(s) related to this Agreement. 

5. CONFIDENTIALITY 

5.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has  disclosed or may disclose Confidential Information. Confidential Information of Company includes non public information relating to the Software, Services, Professional Services and Documentation.  Confidential Information of Customer includes all Customer Data and Personal Information. The  Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and  (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any  third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not  apply with respect to any information that the Receiving Party can document (a) is or becomes generally  available to the public through no fault of the Receiving Party, (b) was in its possession or known by it  prior to receipt from the Disclosing Party provided that the source of the information as not known to  be bound by confidentiality obligations, (c) was rightfully disclosed to it without restriction by a third  party, (d) was independently developed without use of any Confidential Information of the Disclosing  Party or (e) is required to be disclosed by law or a governmental authority. If the Receiving Party is  required by law or court order to disclose Confidential Information, then the Receiving Party shall, to the  extent legally permitted, provide the Disclosing Party with advance written notification and cooperate in  any effort to obtain confidential treatment of the Confidential Information. 

5.2 Customer shall own all right, title and interest in and to the Customer Data and Customer  Confidential Information. Company shall own and retain all right, title and interest, including Intellectual  Property Rights, in and to the Software, Services, Professional Services, Documentation and all Updates,  inventions, or other technology developed related thereto and Company Confidential Information. No  rights or licenses are granted to Customer except as expressly set forth herein.

5.3 Company has exclusive rights to use the Service Data. Nothing herein shall be construed as  prohibiting Company from utilizing the Service Data for purposes of operating Company’s business. In no  event shall Company obtain any right, title or interest in or to any personally identifiable information  contained in the Service Data. 

6. PAYMENT OF FEES 

6.1 Customer will pay Company the applicable Fees described in the Order Form or SOW in  accordance with the terms therein. Except as otherwise stated in an Order Form or SOW, all Fees are  quoted and payable in USD and are based on Software and Service rights acquired, not actual usage.  Company represents that it shall not change, increase, or institute any new charges or Fees for any  Software or Service purchased under any Order Form or SOW during an active Subscription  Term. Notwithstanding the foregoing, Company reserves the right to change the Fees or applicable  charges up to and including new charges and Fees for the upcoming Renewal Term upon thirty (30) days  prior notice to Customer. Company shall not increase the Fees for the same Software or Service by an  amount greater than nine percent (9%) of the Fees payable in the last twelve months of the Initial Term or Renewal Term, as applicable. However, in the event Customer elects to purchase additional products  or services, such prices shall be offered at Company’s then current list price. 

6.2 Fees for all Software and Services will be invoiced in full and in advance annually. Unless  otherwise stated in the Order Form or SOW, invoiced charges are due thirty (30) days after the invoice  date. Customer will provide Company complete and accurate billing and contact information and will  notify Company of any changes to such information. If any invoiced amount is not received by Company  by the due date, then without limiting Company’s rights or remedies, i) those charges may accrue late  interest at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate  permitted by applicable law, whichever is lower, and (ii) Company may suspend Customer’s access to  the Software and Services with notice and shall cease providing any Professional Services. Customer  must contact Company no later than thirty (30) days after the initial billing statement in which any  pricing error occurred, in order to receive an adjustment or credit. Company will not exercise its rights  under this section if Customer is disputing applicable Fees reasonably and in good faith and is  cooperating with Company to diligently resolve the dispute. 

6.3 Except as otherwise stated in an Order Form or SOW, Fees do not include any direct or indirect  local, federal, state, central or foreign taxes, levies, duties, or similar governmental assessments of any  nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Customer is  responsible for paying all Taxes associated with any and all purchases made under this Agreement for  the Software and/or Service, excluding Company income taxes. If Customer has an obligation to  withhold any amounts under any law, Customer shall provide a proof of payment of such amount within  ninety (90) from the day of such payment. 

7. TERM AND TERMINATION 

7.1 This Agreement is valid and binding on the date the Parties fully execute the applicable Order  Form and/or SOW. The Initial Term begins on the Effective Date and will continue throughout the  number of months stated on the Order Form and/or SOW. Upon expiration of the Initial Term and/or  applicable Subscription Term, this Agreement, and any associated Order Form will automatically renew  for the same period with sixty (60) days prior notice (“Renewal Term”) unless either Party provides 

written notice of non-renewal to the other Party at least sixty (60) days before the start of a Renewal  Term. Except as otherwise specified, a SOW shall terminate upon completion of the listed Professional  Services. 

7.2 A party may terminate this Agreement (i) upon thirty (30) days written notice of a material  breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes  the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership,  liquidation, or assignment for the benefit of creditors. 

7.3 Upon expiration or termination of this Agreement, Customer shall immediately discontinue use  of the Software, and Customer shall delete, destroy, or return all copies of the Software or  Documentation provided during the term of this Agreement. Upon termination by Customer solely due  to Company’s material breach, Company will refund to Customer the pro-rata amount of the Fees paid  for the Software and Services solely for the current year of the Agreement immediately prior to such  termination. 

7.4 Upon request by Customer made within one-hundred eighty (180) days after any expiration or  termination of this Agreement, Company shall provide Customer a file of all Customer Data in a mutually  agreeable format. After such one-hundred eighty (180) day period, Company will have no obligation to  maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete, wipe or  otherwise purge all Customer Data. Additionally, during the term of this Agreement, Customers can  extract Customer Data using Company’s standard web services. If Customer requires any other Company  assistance, Customer may acquire Company’s Professional Services at Company’s then-current billing  rates pursuant to a separately executed Professional Services Agreement and SOW. 

7.5 The following Sections, together with any other provision of the Agreement which expressly or  by its nature survives termination or expiration, or which contemplates performance or observance  subsequent to termination or expiration of the Agreement, will survive expiration or termination of the  Agreement for any reason: Section 1 (Definitions), Section 5 (Confidentiality), Section 6 (Fees and  Payment Terms), this Section 7.5 (Survival), Section 9 (Warranties; Disclaimers; Limitation of Liabilities),  Section 10 (Indemnification), Section 11 (Dispute Resolution), Section 12 (Force Majeure), Section 13  (Applicable Law), and Section 14 (General Terms). 

8. CUSTOMER NAME AND LOGOS 

Customer grants Company the right to use Customer name, logo, trademark and trade names  (“Customer Brand”) on Company’s website during the term of this Agreement for sales and marketing  purposes to reference as a customer, in accordance with guidelines provided by Customer. Upon  Customer’s written request, Company will promptly remove Customer’s name or any Customer marks  from Company’s website, and to the extent feasible, Company’s marketing materials. For the avoidance  of doubt, Company will not use Customer Brand for any other purpose without prior written consent  from the Customer. 

9. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY 

Each Party represents and warrants that (i) it has full power and authority to grant the rights granted by  this Agreement, to perform its obligations under this Agreement without the consent of any other  person or entity, and the authority to carry on its business; (ii) the execution, delivery and performance 

of this Agreement have been duly authorized and this Agreement constitutes a valid and binding  agreement, enforceable against each Party in accordance with its terms; (iii) neither party is under any  obligation of a contractual or other nature to any person or entity which is inconsistent or in conflict  with this Agreement or which would prevent, limit or impair in any way the performance of its  obligations under this Agreement. 

9.1 Customer Warranty. Customer is solely responsible for the content of all Customer Data.  Customer will secure and maintain all rights in Customer Data necessary for Company to provide the  Software and Services to Customer without violating the rights of any third party or otherwise obligating  Company to Customer or to any third party. Company does not and will not assume any obligations with  respect to Customer Data or to Customer’s use of the Software and Services other than as expressly set  forth in this Agreement or as required by applicable law 

9.2 Company Warranty. Company represents and warrants the following: (i) the Documentation  sufficiently describes features, functionality, and operation of the Software as applicable; (ii) the  Software, as applicable, conforms to the Documentation and is free from material defects and  workmanship; (iii) the Software does not contain any viruses or other malicious threats, programs,  features, or devices (“Viruses”) that could harm Customer or its Users. Furthermore, consistent with  prevailing industry standards, Company shall maintain the Software in a manner which minimizes errors  and interruptions and shall perform the Services in a professional and workmanlike manner.  Notwithstanding the foregoing, the Software may be temporarily unavailable for scheduled  maintenance or for unscheduled emergency maintenance, either by Company or by third-party  providers, or because of other causes beyond Company’s reasonable control, but Company shall use  reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. 

9.3 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SPECIFICALLY SET FORTH IN THIS  AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND  SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,  INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A  PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICE  WILL BE ERROR FREE OR UNINTERRUPTED OR MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY  BE OBTAINED FROM USE OF THE SOFTWARE AND SERVICES. THE LIMITED WARRANTIES PROVIDED  HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH  THE PROVISION OF THE SOFTWARE AND SERVICES. 

9.4. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR  DEATH OR BODILY INJURY OF A PERSON, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND ANY  BREACH OF ITS CONFIDENTIALITY, INFORMATION SECURITY OR INDEMNIFICATION OBLIGATIONS,  COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY  SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE  RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND  CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER  THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF  DATA OR COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, SERVICES OR TECHNOLOGY OR LOSS OF  BUSINESS WHERE (I) THE PROBLEM IS CAUSED BY CUSTOMER’S NEGLIGENCE, CUSTOMER’S HARDWARE  MALFUNCTION OR OTHER PRODUCTS UTILIZED BY CUSTOMER BEYOND THE REASONABLE CONTROL OF 

COMPANY; (II) THE PROBLEM IS WITH THIRD PARTY SOFTWARE NOT LICENSED THROUGH COMPANY;  OR (III) THE PROBLEM IS WITH THE INTERNET, AN INTERNET PROVIDER, FORCE MAJEURE EVENT, OR A  DESKTOP OR BROWSER SOFTWARE; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR  CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; (D)  CUSTOMER DATA INPUT INTO THE SOFTWARE OR PROVIDED BY CUSTOMER OR ANY AUTHORIZED  AFFILIATE OF CUSTOMER THAT VIOLATES THE RIGHTS OF ANY THIRD PARTY; OR (E) FOR ANY AMOUNTS  THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR  PAYABLE BY CUSTOMER TO COMPANY FOR THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT IN  THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR  NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

EXCEPT FOR DEATH OR BODILY INJURY OF A PERSON, BREACH OF SECTION 3 OR 5 OF THIS AGREEMENT,  GROSS NEGLIGENCE OR WILFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL  CUSTOMER AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE  LIABLE FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,  EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS  AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE,  WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT  SHALL CUSTOMER, ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE  LIABLE FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. 

10. INDEMNIFICATION 

10.1 Company will indemnify, defend, save and hold harmless Customer, its Affiliates and the  respective officers, directors, employees, agents, successors, and assigns of Customer or any affiliate  (“Customer Parties”), against all claims, suits and actions asserted by an unaffiliated third party (“Third Party Claim”) against any of the Customer Parties for liabilities, damages and costs, including reasonable  attorneys’ fees, incurred in the defense of any claim brought against Customer alleging that any  Software or Services infringes or misappropriates a third-party’s U.S. registered patent right, trademark,  or copyright (an “Infringement Claim”). Company’s indemnity obligation under this Section 10.1 shall not  extend to claims that arise from: (a) an unauthorized modification of the Software or Services by  Customer where the Software or Services would not be infringing without such modifications; (b)  customized portions of the Services designed in accordance with written specifications provided by  Customer where the Software or Services would not be infringing but for Company ’s compliance with  such written specifications; (c) the failure of Customer to install an Update to the Software or Services  provided by Company, such Updates which require Customer’s consent or installation permission, that  would have avoided the actual or alleged Infringement Claim; (d) the combined use by Customer of the  Software or Services with other components, products, or services not provided by Company where the  Software or Services would not be infringing but for such combination for such combination is not pre approved by Company and is not provided by Company during the then current Subscription Term; or  (e), analytic applications, algorithms or other applications or programming built by Customer or created  by or on behalf of Customer without Company’s approval. 

10.2 If an Infringement Claim is brought or threatened relating to Company’s infringement of third party rights, Company may, at its sole option and expense, use commercially reasonable efforts either  (a) to procure a license that will protect Customer against such Infringement Claim without cost to 

Customer; (b) to modify or replace all or portions of the Software or Services as needed to avoid  infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a)  and (b) are not commercially feasible, terminate this Agreement and provide to Customer a pro-rata  refund of the Fees paid for the Software and Services under this Agreement based on the terminated  portion of the current year of this Agreement. 

10.3 To the extent permitted by law, Customer shall defend, indemnify, and hold Company harmless  from any Third-Party Claim alleging that the Customer Data infringes the IP rights of a third party,  including through Customer’s use of the Software or Service in breach of Section 3 of this Agreement. 

10.4 A party seeking indemnification will: (a) promptly notify the Indemnifying Party of the Third Party Claim; (b) grant the Indemnifying Party sole and absolute control of the defense and settlement of  the Third-Party Claim; and (c) provide the Indemnifying Party with all reasonable assistance, information  and authority for the defense and settlement of the Third-Party Claim. The Indemnifying Party will not  stipulate, acknowledge, or admit fault or liability on the Indemnified Party’s behalf without the  Indemnified Party’s prior written consent. 

10.5 THE FOREGOING ARE THE PARTIES’ SOLE AND EXCLUSIVE OBLIGATIONS, AND THE PARTIES SOLE  AND EXCLUSIVE REMEDIES, FOR INDEMNIFICATION. 

11. DISPUTE RESOLUTION 

11.1 THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT  PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR  CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING  OUT OF THIS AGREEMENT. 

11.2 In the event of any dispute arising out of or relating to this Agreement, the Parties shall seek to  settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the  Parties agree to first endeavor to settle the dispute via voluntary non-binding mediation, before  resorting to arbitration. A mediator will be selected by voluntary agreement of both Parties, or in the  event both Parties cannot agree on a mediator, a mediator will be selected in accordance with the rules  of the American Arbitration Association. The mediation shall be held at a location mutually agreed to by  the Parties. Each Party shall bear its own costs and expenses and an equal share of the administrative  and other fees associated with the mediation. 

12. FORCE MAJEURE 

Neither Party shall be held responsible for any delay or failure to perform any part of this Agreement to  the extent such delay or failure results from any cause beyond its reasonable control and without the  fault or negligence of the Party claiming excusable delay or failure to perform, such as acts of God, acts  of war or terrorism, storms, floods, epidemics or pandemics, riots, work stoppages, strikes (work  stoppages and/or strikes of any of the Parties to this Agreement are explicitly excluded from the  language of this section), embargoes, government restrictions ( “Force Majeure Event”). Upon an  occurrence of a Force Majeure Event, Company cannot ensure uninterrupted or error free service or  access to the Software or Services and there may be periods where access is delayed, limited or not  available. Company shall use commercially reasonable efforts to provide the Software or Services to 

Customer in accordance with its Business Continuity and Disaster Recovery Plan, a copy of which shall  be provided to Customer upon written request. 

13. APPLICABLE LAW 

This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the  parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of  Delaware, without giving effect to principles of conflicts of law. 

14. GENERAL TERMS 

14.1 This Agreement, including all exhibits and amendments hereto and all Order Forms or SOWs,  constitutes the entire agreement between the Parties with respect to the subject matter hereof. In the  event of a conflict, the provisions of an Order Form or SOW shall take precedence over provisions of the  body of this Agreement and over any other exhibit or attachment. This Agreement supersedes all prior  and contemporaneous agreements, proposals or representations, written or oral, concerning its subject  matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective  unless in writing and signed by the party against whom the modification, amendment or waiver is to be  asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a  Customer purchase order or in any other Customer order documentation shall be incorporated into or  form any part of this Agreement, and all such terms or conditions shall be null and void. 

14.2 Company may use the services of subcontractors and permit them to exercise the rights  granted to Company under this Agreement provided Company remains responsible for (a) compliance of  any such subcontractor with the terms of this Agreement, and (b) the overall performance of the  Software and Services as required under this Agreement. Except as otherwise provided in this  Agreement, there are no third-party beneficiaries under this Agreement. Any claims against Company or  its Affiliates under this Agreement may only be brought by the Customer entity that is a party to this  Agreement. 

14.3 The Parties are independent contractors. This Agreement does not create nor is it intended to  create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between  the Parties. There are no third-party beneficiaries to this Agreement. Neither party has any authority of  any kind to bind the other party in any respect whatsoever. 

14.4 This Agreement is not assignable, transferable or sub licensable by either Party without the  other Parties prior written consent, except as such assignment, transfer or sub license relates to an  Affiliate or is in connection with a merger, acquisition, or similar change of control event. 

14.5 No failure or delay by either party in exercising any right under this Agreement shall constitute  a waiver of that right or any other right. Lists of examples, such as lists following “including,” or “e.g.,”  are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” 

14.6 If one or more provisions of this Agreement are held to be unenforceable under applicable law,  the Parties agree to renegotiate such provision in good faith. In the event that the Parties cannot reach a  mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be  excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such 

provision were so excluded and (c) the balance of this Agreement shall be enforceable in accordance  with its terms 

14.7 All notices under this Agreement will be in writing and will be deemed to have been duly given  when received, if personally delivered; when receipt is electronically confirmed, if transmitted by  facsimile or electronic mail; the day after it is sent, if sent for next day delivery by recognized overnight  delivery service to Customer at the addresses listed on the current Order Form or SOW or to Company  at the address listed herein; Attn: Chief Executive Officer, with a copy to [email protected] ; and  upon receipt, if sent by certified or registered mail, return receipt requested.