Vitally Software as a Service Agreement

This SOFTWARE AS A SERVICE AGREEMENT (this “Agreement”) governs your use of the Subscription Services (as defined below) and any related services provided by Vitally, Inc., a Delaware corporation with its principal place of business at 303 Spring Street, New York, NY 10013 (“Vendor”). By using the Subscription Services, clicking “I agree”, or taking any other affirmative action indicating your acceptance of this Agreement, you (the “Customer”) agree to be bound by the terms contained herein. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to Vendor that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use the Subscription Services.

1. Definitions.

The following capitalized terms shall have the following meanings whenever used in this Agreement.

1.1. “Aggregate Content” means any data that is derived or aggregated in deidentified form from (i) any Customer Content; or (ii) Customer’s and/or its Authorized Users’ use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.

1.2. “AUP” means Vendor’s acceptable use policy as set forth in Vendor’s Terms of Service made available on www.vitally.io.

1.3. “Authorized User” means any individual whom Customer has authorized to use the Subscription Services. For the avoidance of doubt, it is expressly prohibited for Customer to share its accounts or passwords with Authorized Users who are not employees, officers, or directors of Customer.

1.4. “Customer Content” means content in any form or medium that is inputted, collected, or otherwise provided by or on behalf of Customer through the Subscription Services or to Vendor in connection with Customer’s use of the Subscription Services, but excluding, for clarity, any information, data, data models, content or materials owned or controlled by Vendor and made available through or in connection with the Subscription Services.

1.5. “Documentation” means Vendor’s documentation related to use of the Subscription Services as provided via the Subscription Services.

1.6. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.7. “Order” means an order for access to the Subscription Services, as submitted by Customer via the Subscription Services.

1.8. “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

1.9. “Privacy Policy” means Vendor’s privacy policy made available on the Subscription Services.

1.10. “Subscription Services” means Vendor’s customer success subscription service, which is accessible at www.vitally.io, including any updates, patches, bug fixes and upgrades that may be provided by Vendor.

1.11. “Term” is defined in Section 12.1 below.

1.12. “Vendor IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

1.13. “Volume Limits” means the limits, volume or other measurement or conditions of permitted use for the Subscription Services as set forth in the applicable Order, including any limits on the number of Authorized Users permitted to use the Subscription Services based on Customer’s subscription tier.

2. The Subscription Services.

2.1. Use of the Subscription Services. Subject to the terms and conditions of this Agreement, Vendor hereby grants Customer a limited, non-exclusive, non-transferable right to access the Subscription Services during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Volume Limits.

2.2. Customer Access. Customer will be given access to the Subscription Services in accordance with the terms set forth in the Order and upon Customer’s acceptance of this Agreement.

2.3. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Authorized Users’ use of the Subscription Services.

2.4. Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. Vendor does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.

3. Subscription Services Fees and Payment.

3.1. Subscription Services Interface Fees and Payments. If Customer makes payments via the Subscription Services, Customer is subject to the terms in this Section 3.1.

(a) Subscriptions. Our Subscription Services are available through paid subscriptions (each, a “Subscription”). BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE VENDOR TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If Customer purchase a Subscription, we (or our third-party payment processor) will automatically charge Customer the Subscription fee posted on the Subscription Services, plus any applicable taxes, and other charges (the “Subscription Fee”) at the beginning of Customer’s Subscription, and then at the frequency thereafter that is indicated on the Subscription Services at the then-current Subscription Fee, using the Payment Information (defined below in Section 3.1(b)) Customer has provided until Customer cancels its Subscription. By agreeing to this Agreement and electing to purchase a Subscription, Customer acknowledge that Customer’s Subscription has recurring payment features and Customer accepts responsibility for all recurring payment obligations prior to cancellation of Customer’s Subscription by Customer or Vendor. Customer’s Subscription continues until cancelled by Customer or we terminate Customer’s access to or use of the Subscription Services in accordance with this Agreement. Customer may cancel its Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. Customer can cancel its Subscription through Customer’s account or by emailing [email protected]. Customer will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If Customer cancels, Customer’s right to use the Subscription Services will continue until the end of Customer’s then current Subscription period and will then terminate without further charges.

(b) Payments. Customer agrees to the pricing, payment and billing policies applicable to such fees and charges, as posted on the Subscription Services or otherwise communicated to Customer, and Customer authorizes Vendor (or Vendor’s third-party payment processor) to charge Customer for payment of Subscription Fees (“Payment”). We may ask Customer to supply additional information relevant to Customer’s Payment, including Customer’s credit card number, the expiration date of Customer’s credit card and Customer’s email and postal addresses for billing and notification (such information, “Payment Information”). Customer represents and warrants that it has the legal right to use all payment method(s) represented by any such Payment Information. All Payments are non-refundable and non-transferable except as expressly provided in this Agreement. Vendor reserves the right to cancel Customer’s Payment for any reason; if we cancel Customer’s Payment, we’ll refund any amount Customer has already remitted to Vendor for such Payment. Fees stated are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any Payment to Vendor be subject to withholding tax by any government, Customer will reimburse Vendor for such withholding tax. All fees are stated and payable in United States dollars.

3.2. Order Fees and Payment. If Customer executes an Order, Customer is subject to the terms in this Section 3.2 and will pay all fees set forth in such Order in accordance with the terms therein. Unless otherwise provided in an Order, Vendor reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Term upon sixty (60) days’ prior notice to Customer (which may be sent by email). Payments due to Vendor under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Vendor or such other payment method mutually agreed by the parties. All payments are non-refundable and neither party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Vendor may suspend Customer’s access and use of the Subscription Services until all payments are made in full. Customer will reimburse Vendor for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. The fees described in the Order are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay all such taxes (excluding U.S. taxes based on Vendor’s net income).

4. Customer Content & Privacy.

4.1. Use of Customer Content. Vendor acknowledges that, as between Customer and Vendor and except as set forth in the next sentence, Customer owns and retains all right, title and interest in and to all Customer Content. Customer hereby grants Vendor a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Content solely for the purpose of hosting, operating, improving and providing the Subscription Services and Vendor’s other related products, services and technologies during the Term.

4.2. Privacy Policy. The Privacy Policy applies only to the Subscription Services and does not apply to any third-party website or service linked to the Subscription Services or recommended or referred to through the Subscription Services or by Vendor’s staff.

4.3. Risk of Exposure. Customer recognizes and agrees that hosting content online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Subscription Services, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Content will not be exposed or disclosed through errors or the actions of third parties and is not liable for such third parties, including without limitation host providers.

4.4. Content Accuracy. Vendor shall have no responsibility or liability for the accuracy of content uploaded to the Subscription Services by Customer including, without limitation, Customer Content and any other content uploaded by Authorized Users.

4.5. Content Deletion. Unless otherwise provided in an Order, Vendor may permanently erase Customer Content if Customer’s account is delinquent, suspended, or terminated for thirty (30) days or more.

4.6. Excluded Content. Customer represents and warrants that Customer Content does not and will not include, and Customer has not and shall not upload or transmit to Vendor’s computers or other media, any content that is prohibited in the AUP including, without limitation, any content that may infringe on any third party Intellectual Property Rights.

4.7. Aggregate & De-identified Content. Notwithstanding the provisions above in this Section 4, Vendor may perpetually use, reproduce, sell, share, publicize, or otherwise exploit Aggregate Content in any way, in its sole discretion.

4.8. Publicity. Customer hereby grants Vendor a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) Vendor’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Vendor and case studies. All goodwill and improved reputation generated by Vendor’s use of the Customer Marks inures to the exclusive benefit of Customer. Vendor will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

4.9. Customer’s Representations and Warranties. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Content (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Vendor’s use of the Customer Content in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

5. Customer’s Responsibilities & Use Restrictions.

5.1. Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other Person, or otherwise allow any Person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Vendor for use expressly for such purposes; or (viii) use the Subscription Services, Documentation or any other Vendor Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with Subscription Services.

5.2. Authorized Users. Customer will not allow any Person other than Authorized Users to use the Subscription Services. Customer may permit Authorized Users to use the Subscription Services, provided that (i) the use, including the number of Authorized Users, does not exceed the Volume Limits; and (ii) Customer ensures each Authorized User complies with the AUP and applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Vendor if Customer knows or reasonably suspects that any user name and/or password has been compromised.

5.3. Compliance with Laws. In its use of the Subscription Services, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Content.

6. IP & Feedback.

6.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, Vendor reserves and, as between the parties will solely own, the Vendor IP and all rights, title and interest in and to the Vendor IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

6.2. Feedback. From time to time Customer or its employees, contractors, or representatives may provide Vendor with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants Vendor a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Vendor’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.

7. Confidential Information.

7.1. Definition. As used herein, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of Vendor. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

7.2. Nondisclosure. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Vendor may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Content. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each party but may be disclosed on a confidential basis to a party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

8. Representations & Warranties.

Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party.

9. Warranty Disclaimers.

Except to the extent set forth in Section 8, THE SUBSCRIPTION SERVICES AND OTHER VENDOR IP ARE PROVIDED “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING; (I) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (II) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER CONTENT WILL REMAIN PRIVATE OR SECURE.

10. Indemnification.

10.1. Customer Indemnification. Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any claim, suit or proceeding brought by a third party (“Indemnified Claim”) arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Subscription Services, including without limitation: (i) claims by Authorized Users or by Customer’s employees, as well as by Customer’s own customers; (ii) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Content; (iii) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Subscription Services through Customer’s account, including without limitation by Customer Content; and (iv) claims that use of the Subscription Services through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Customer’s obligations set forth in this Section 10 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

10.2. Vendor Indemnification. Vendor shall defend Customer and the Customer Associates (as defined below) against any Indemnified Claim arising out of or related to claims against Customer that the Subscription Services violates any third-party intellectual property rights. Vendor’s obligations set forth in this Section 10 include retention and payment of reasonable outside attorneys and payment of court costs, as well as settlement at Vendor’s expense and payment of judgments. (The “Customer Associates” are Customer’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

10.3. Exclusions. Vendor’s obligations under Section 10.2 will not apply if the Indemnified Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Content; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Vendor; (iv) modifications to the Subscription Services by anyone other than Vendor; or (v) combinations of the Subscription Services with software, data or materials not provided by Vendor.

10.4. IP Remedies. If Vendor reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights and Vendor is obligated to indemnify Customer, Vendor may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; (ii) procure the right for Customer to continue use. If Vendor determines that neither alternative is commercially practicable, Vendor may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.

10.5. Exclusive Remedy. The rights and remedies set forth in this Section 10 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.

10.6. Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Indemnified Claim) notify the other party (the “Indemnifying Party”) of the Indemnified Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Indemnified Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Indemnified Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Indemnified Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

11. Limitation of Liability.

11.1. Dollar Cap. IN NO EVENT WILL VENDOR’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE VENDOR IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO VENDOR IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT VENDOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

11.2. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT THE VENDOR IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

11.3. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN VENDOR AND CUSTOMER AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

12. Term & Termination.

12.1. Term. The term of this Agreement (the “Term”) shall commence and continue for the period set forth in the Order or, if Customer has not executed an Order, for the period Customer has an active Subscription, unless terminated earlier pursuant to this Agreement (the “Term”).

12.2. Termination for Breach. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

12.3. Termination for Convenience. Vendor may terminate this Agreement at any time for any reason by deactivating the Customer’s account via the Subscription Services. In the event of such termination by Vendor, Customer will be given a prorated refund for any prepaid fees.

12.4. Survival. This Section 12.4 and Sections 1, 3, 4.1, 4.7, 4.9, 5.1, 5.2, 6, 7, 8, 9, 10, 11, 12.5 and 13 survive any termination or expiration of this Agreement.

12.5. Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2 will terminate; (ii) Customer will return or destroy, at Vendor’s sole option, all Vendor Confidential Information in its possession or control, including permanent removal of such Vendor Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Vendor’s request, certify in writing to Vendor that the Vendor Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted; and (iii) Customer will pay to Vendor all accrued but unpaid amounts due under Section 3.1 immediately.

13. Miscellaneous.

13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent.

13.2. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 48 hours after they are sent. Customer may send notices pursuant to this Agreement to Vendor’s email contact points provided by Vendor, and such notices will be deemed received 48 hours after they are sent.

13.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

13.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Notwithstanding the foregoing, either party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

13.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

13.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

13.7. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of New York, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. The parties irrevocably consent to the personal jurisdiction and venue of the federal and state courts of New York County, NY.

13.8. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.

13.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

13.10. Technology Export. Customer shall not: (i) permit any third party to access or use the Subscription Services in violation of any U.S. law or regulation; or (ii) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Subscription Services in, or export such software to, a country subject to a United States embargo.

13.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

13.12. Amendment. This Agreement may not be amended in any way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 13.12, Vendor may revise the Privacy Policy and AUP at any time by posting a new version of either on the Subscription Services, and such new version will become effective on the date it is posted.

13.13. Equitable Relief. Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Customer, Section 5.1, would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

13.14. No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties and their respective successors and assigns.

13.15. Subcontracting. Vendor may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Vendor remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Vendor will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Vendor.

13.16. U.S. Government End Authorized Users. The Subscription Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.

13.17. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.