Jammber is now Mozaic

Subscription Agreement
Terms And Conditions

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

This Mozaic™ Services Agreement (“Agreement”) is a legal agreement with 8th Stage, Inc. (“Mozaic”, “Jammber” “us”, or “we”) and Subscriber (“subscriber”, “you”, “your”, or “user”) to receive certain payment processing (split royalty payments), data, reporting, technology and analytics services, and other business services that may be offered by Mozaic™ (a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services.

You may not access or use any Services unless you agree to abide by all of the terms and conditions in this Agreement.

GENERAL TERMS

This Agreement provides a general description of the Services that Stripe may provide to you, including those that allow you to accept payments from purchasers of your goods or services or donors to your organization (your “Customers”). We provide you with a more detailed description of the Services through published software libraries and application programming interfaces that may be used to access the Services (the “API”) and additional resources we make available to you on our website.

Before using the Services, you must register with Stripe and create an account (a “Stripe Account”).

Section A describes the process of registering for and using your Stripe Account.
Section B describes your use of the API and the Services.
Section C describes the Payment Processing Services, which are one type of Service provided by Stripe.
Section D describes proper handling, management, and use of data generated during your use of the Services, including your Customers’ data.
Finally, Section E describes your liability to Stripe for all losses connected with your Stripe Account, your agreement to resolve all disputes with Stripe by arbitration and not in a lawsuit, and other legal terms that apply to you.

1. DEFINITIONS

1.1. “Authorized User(s)”

Means employees of Subscriber who are authorized by Subscriber to access and use the Solution for Subscriber’s internal business use purposes.

1.2. “Confidential Information”

Means any and all proprietary or confidential information and materials, including without limitation, trade secrets, ideas, improvements, processes, concepts, research, current and anticipated customer requirements, pricing, market studies, customer lists, data, know-how, products, services, suppliers, business plans, prices and costs, the terms of this Agreement, and all other information that by its nature or the nature of its disclosure reasonably should be considered confidential, that is disclosed by one Party to the other Party, either directly or indirectly, during the Term of this Agreement (whether in writing or in oral, graphic, electronic, or any other form). “Confidential Information” also includes, without limitation (i) third-party confidential information that the Disclosing Party is obligated to keep confidential, and (ii) all information which contains or otherwise reflects or is derived, directly or indirectly, from any information described in this paragraph, including all notes, analyses, compilations, studies, or other documents prepared by the Disclosing Party that contain or otherwise reflect or are derived, directly or indirectly, from such Confidential Information. Company’s Confidential Information includes Resultant Data and De-Identified Data, and Subscriber’s Confidential Information includes Subscriber Data.

1.3. “Documentation”

Means the user manuals or help guides for the Solution, either in printed or electronic form, generally provided or made available by Company to its customers.

1.4. “Fees”

Means, if any, the fees payable by Subscriber for access to and use of the Solution and receipt of any Services set forth on the applicable Order Form.

1.5. “First Productive Use”

Means the first use of the Solution in either a test or production environment.

1.6. “Mozaic Order Summary”

Means a document, substantially in the form of the cover page of this Agreement or as otherwise executed by the Parties, through which Subscriber orders the Solution, Services, and any additional software, product, or services from Company. Each Order Form shall reference the Effective Date of this Agreement and forms a part of this Agreement. No Order Form shall be binding on either Party until accepted in writing by an authorized representative of such Party.

1.7. “Platform”

Means Subscriber’s digital distribution platform for sound recordings.

1.8. “Residuals”

Means any information of general applicability to the Solution or Services or any other information in intangible form retained in the memory of persons employed or retained by Company who have performed Services, including without limitation, any ideas, concepts, know-how, and techniques contained therein or derived therefrom.

1.9. “Resultant Data”

Means any data or information provided by, or submitted, inputted, or entered by any Subscriber Users, including without limitation any derivative data thereof.

1.10. “Services”

Means any maintenance and support services for the Solution performed or provided by Company or a third party acting on its behalf for Subscriber under this Agreement.

1.11. “Solution”

Means the Company’s proprietary software and related products and features that are accessible via the Internet or Company’s mobile application for the purposes of allowing Subscriber Users to split royalty payments for the digital distribution of sound recordings among two or more collaborators, confirm the identity of collaborators, and track payouts to collaborators for taxation purposes.

1.12. “Subscriber Data”

Means any data or information provided by, or submitted, inputted, or entered by Subscriber or its Authorized Users.

1.13. “Subscriber Users”

Mean artists and collaborators who access and use the Platform and who elect to use the Solution through the Platform by agreeing to the Terms of Use.

1.14. “Terms of Use”

Means those certain Terms of Use that govern a Subscriber User’s access to and use of the Solution.

2. SUBSCRIPTION

2.1. Subscription Right.

Subject to the terms and conditions of this Agreement, Company hereby grants (i) Subscriber and its Authorized Users a limited, revocable, non-exclusive, non-transferable right during the Term to access and use the Solution and Documentation; and (ii) Subscriber a limited, revocable, non-exclusive, non-transferable right during the Term to market, promote, and display the Solution under Subscriber’s trademarks solely in accordance with the terms and conditions of this Agreement. Subscriber acknowledges and agrees that the implementation of the Solution and performance of the Services shall not commence until Subscriber provides to Company any and all Subscriber Data required for Company to provide the Solution, including without limitation the first and last name and email address of proposed Subscriber Users, and any percentages owned by each such proposed Subscriber User, and that Company shall not be responsible for any delays in providing access to and use of the Solution to the extent resulting from Subscriber’s failure to provide such Subscriber Data. In the event that Subscriber fails to provide such Subscriber Data within thirty (30) days of the Effective Date of the Agreement and thereafter throughout the Term when required for the operation of the Solution, then Company may terminate this Agreement upon written notice to Subscriber, and shall retain all fees paid by Subscriber to Company as of the effective date of termination and any amounts that would have been paid to Company by Subscriber under this Agreement but for Subscriber’s breach.

2.2. White Label Program.

From time to time, Subscriber may elect to provide access to and use of the Solution to Subscriber Users through the Platform using Subscriber Marks (as defined in this Agreement); provided, that Company shall have no obligation to provide access to or use of the Solution to any Subscriber User unless and until such Subscriber User agrees to the Terms of Use. The Parties agree that Subscriber may market and promote the Solution under Subscriber Marks; provided, that no Company proprietary notices on the Solution may be removed, obscured, or modified and that Subscriber displays all Company Marks (as defined in this Agreement) in accordance with any trademark usage guidelines provided by Company to Subscriber from time to time. Except as otherwise expressly provided in this Agreement, Subscriber shall be solely responsible for providing the Solution to Subscriber Users and managing the relationship therewith.

2.3. Restrictions.

Subscriber shall not, and shall not permit any third-party to: (i) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works based on the Solution; (ii) reverse engineer the Solution or any portion thereof; (iii) rent, lease, sublicense, assign, distribute, or otherwise make available the Solution to any third party; (iv) attempt to probe, scan, or test the vulnerability of the Solution or breach any security or authentication measures; or (v) access or use the Solution or any Company Confidential Information in order to (A) build a competitive product or service, or (B) copy any idea, features, or functions thereof. Subscriber shall not, and shall not permit any third party to post, upload, publish, submit, or transmit any content that: (1) infringes, misappropriates, or violates a third party’s intellectual property rights; (2) violates any applicable law or regulation; (3) is defamatory, obscene, vulgar, or offensive; or (4) promotes illegal or harmful activities or substances. Subscriber shall ensure that its Authorized Users maintain strict confidentiality of any user credentials (including passwords) required to access the Solution and that Authorized Users do not allow another person to use their credentials. Subscriber shall be responsible for any and all damages or losses that may be incurred as a result of any activities that occur under an Authorized User’s Credentials.

2.4. Reservation of Rights.

As between Company and Subscriber, Company retains sole and exclusive ownership of, and all rights, title, and interests in and to: (i) the Solution, the Services, the Documentation, and all enhancements, modifications, or derivative works (regardless of who developed the enhancements, modifications, or derivative works and the source of inspiration for any such enhancements, modifications, or derivative works), and all inventions or discoveries embodied within the Solution; and (ii) all deliverables or work product provided in connection with this Agreement, including without limitation any customizations or modifications to the Solution provided in connection with this Agreement and/or Services Agreement (as defined in this Agreement). Except for the limited right expressly granted in Section 2.1, no other rights or licenses in or to the intellectual property of Company, including without limitation in and to the Solution, are granted to Subscriber under this Agreement.

2.5. Residuals.

Company shall be free to use any and all Residuals resulting from the performance of Services hereunder for any purpose. Nothing in this Agreement shall be deemed to prevent Company from using any Residuals in any manner, including without limitation to develop for itself or others any services and/or materials.

2.6. Suggestions.

Company shall have, and Subscriber hereby grants, a perpetual, worldwide, transferable, sublicensable, irrevocable, royalty-free right and license to use, modify or incorporate into the Solution or the Services any ideas, suggestions, enhancements, recommendations or other feedback provided by or on behalf of Subscriber, including by Authorized Users.

2.7. Service Levels; Connectivity.

Company shall provide access to the Solution in accordance with the service levels set forth on Schedule A, attached hereto. Notwithstanding the foregoing, Subscriber is solely responsible for providing, maintaining, and furnishing to Authorized Users all equipment necessary for attaining, maintaining, and ensuring any and all connections to the Internet to facilitate access to and use of the Solution. Company shall have no responsibility to ensure Subscriber acquires or maintains Internet connectivity.

2.8. Use of Subscriber Marks; Promotion.

Subscriber hereby grants Company a limited, royalty-free, and non-exclusive license to use during the Term Subscriber’s trademarks, service marks, logos, designs, and any other indicia of origin (the “Subscriber Marks”) for the purpose of providing the Solution and performing the Services. Company shall also have the right to use Subscriber Marks to promote the Solution in advertising, media, or other marketing materials. No rights, title, or interests in any such Subscriber Marks are intended to be given to or acquired
by Company, and Company shall not use the Subscriber Marks for any purpose or activity except as expressly authorized in this Agreement or in writing by Subscriber. All goodwill arising from Company’s use of the Subscriber Marks shall inure to the benefit of Subscriber. All use of the Subscriber Marks shall be in accordance with any trademark usage guidelines provided by Subscriber to Company from time to time.

2.9. Use of Company Marks.

Company hereby grants Subscriber a limited, royalty-free, and non-exclusive license to use during the Term Company’s trademarks, service marks, logos, designs, and any other indicia of origin (the “Company Marks”) for the purpose of marketing and promoting the availability and use of the Solution (including through the Platform) to current and potential Subscriber Users and in advertising, media, or other marketing materials. No rights, title, or interests in any such Company Marks are intended to be given to or acquired by Company, and Subscriber shall not use the Company Marks for any purpose or activity except as expressly authorized in this Agreement or in writing by Company. All goodwill arising from Subscriber’s use of the Company Marks shall inure to the benefit of Company. All use of the Company Marks shall be in accordance with any trademark usage guidelines provided by Company to Subscriber from time to time.

2.10. Additional Services.

Other than the Services, any services provided by Company or a third party acting on its behalf for Subscriber shall be set forth in, and governed and controlled by, that certain Professional Services Agreement between the Parties (the “Services Agreement”). Promptly following execution of this Agreement, and to the extent Subscriber requires any customizations, integrations, implementation, training, or other professional services other than the Services, the Parties shall negotiate and enter into the Services Agreement. To the extent the terms and conditions in the Services Agreement or any Order Form are inconsistent with the terms of this Agreement, the Services Agreement or Order Form shall control if the Services Agreement or Order Form references the applicable section of this Agreement and expressly states that such section shall supersede the terms of this Agreement.

2.11. Collaboration.

The Parties acknowledge and agree that the success of the relationship established by this Agreement requires the commercially reasonable efforts of each Party to implement, market, and promote the Solution and use thereof by artists and collaborators who may access and use the Platform. Subscriber shall make the Solution available to such artists and collaborators through the Platform, and each of the Parties agrees to dedicate sufficient personnel and resources in order to achieve the foregoing purpose in accordance with the terms set forth in this Agreement.

3. PAYMENT TERMS

3.1. Fees.

Subscriber shall pay Company the Fees set forth on the applicable Order Form, if any. Such Fees shall be in addition to any charges to Subscriber Users. Except as otherwise set forth in an Order Form, the Fees are due no later than thirty (30) days after the date of an invoice. Subscriber shall pay interest on all amounts not paid when due at a rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less, from the due date until paid in full. Company may suspend Subscriber’s and/or its Authorized Users’ or Subscriber Users’ access to the Solution for so long as any undisputed amounts due are delinquent.

3.2. Expenses.

Subscriber shall reimburse Company for all customary travel and living expenses incurred by Company personnel in performing Services, if any, in accordance with Subscriber’s travel policy provided to Company in advance.

3.3. Taxes.

Subscriber shall be solely responsible for the payment of any and all taxes arising out of this Agreement, including any sales, use, cloud or hosted, and property taxes, and any taxes that may be determined to be due and owing by Subscriber at a future date. To the extent Subscriber is exempt from such taxes for the purchase of any products or services under this Agreement, Subscriber first shall provide Company with a signed original certificate of exemption and, in such event, this Section shall not apply to Subscriber.

3.4. Payments to Subscriber Users.

Subscriber acknowledges and agrees that, in the event any Subscriber User disputes any amounts paid or payable to such Subscriber User through the Solution, Subscriber shall be solely responsible for resolving such dispute. Company will provide Subscriber reasonable assistance to substantiate such amounts. Subscriber understands and agrees that in no event shall Company determine whether any Resultant Data provided by Subscriber Users is valid and/or accurate. Any payments made by Company on behalf of Subscriber to Subscriber Users through the Solution will be based solely on any Resultant Data provided by Subscriber Users to Company. The Solution is merely a conduit for any such payments made through the Solution. Subscriber shall resolve all disputes regarding the accuracy or amounts of any payments made to a Subscriber User through the Solution with the applicable Subscriber User. COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE VALIDITY OR ACCURACY OF ANY PAYMENTS MADE TO SUBSCRIBER USERS THROUGH THE SOLUTION.

4. CONFIDENTIALITY

4.1. Confidential Information.

“Confidential Information” shall not include information that can be shown through written documentation to be: (1) in the public domain through no breach of this Agreement by the receiving Party or a third party acting on its behalf; (2) known to the receiving Party from a third-party source without violation of any obligation of confidentiality to the disclosing Party; or (3) lawfully known by the receiving Party prior to disclosure of such information by the disclosing Party. Notwithstanding any other provision of this Agreement, the receiving Party may disclose Confidential Information pursuant to any governmental or judicial order applicable to the receiving Party, provided that the receiving Party first notifies the disclosing Party sufficiently in advance of such order and provides the disclosing Party with reasonable assistance at the disclosing Party’s expense so that the disclosing Party may object to such order or make such disclosure subject to a protective order or confidentiality agreement.

4.2. General Obligations.

Each Party receiving Confidential Information under this Agreement shall: (i) not disclose any Confidential Information of the disclosing Party to third parties and hold all Confidential Information in strict confidence; (ii) take commercially reasonable precautions to keep the Confidential Information secret and avoid disclosure, loss, or misuse of the Confidential Information; and (iii) not use or permit any person to use any of the Confidential Information for any purpose except as provided in this Agreement. The receiving Party may disclose Confidential Information to personnel of the receiving Party with: (a) a valid need to know such Confidential Information and (b) that have signed a written agreement with the receiving Party containing confidentiality and non-use restrictions equivalent to this Agreement. The receiving Party shall be responsible for any act or omission of its personnel that would be a breach of this Agreement if by the receiving Party.

4.3. Injunctive Relief.

The receiving Party acknowledges that the remedy at law for any breach or threatened breach of Sections 2.3 or 4 shall be inadequate and that the disclosing Party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it.

4.4. Return of Confidential Information.

The receiving Party shall promptly destroy or return all tangible and intangible material in its possession or control embodying the disclosing Party’s Confidential Information (in any form and including, without limitation, all summaries, copies, and excerpts of Confidential Information) promptly after the disclosing Party makes a written request therefore. Within thirty (30) days after the disclosing Party has requested the return or destruction of the Confidential Information, the receiving Party shall certify in writing to the disclosing Party that all such Confidential Information has been returned and/or permanently destroyed.

4.5. Subscriber Data.

The Parties agree that all proprietary information and data of Subscriber provided to or accessed by Company under this Agreement, is and shall remain proprietary to and owned by Subscriber. During the Term, Subscriber shall provide Subscriber Data to Company in a format reasonably requested by Company at a frequency mutually agreed upon by the Parties. The Parties acknowledge and agree that Company shall have the right to compile, extract, combine, modify, and aggregate any such data in order to create de-identified data that cannot be used to identify Subscriber or any individual person (“Aggregated Data”), which may be used by Company for: (i) improving its products and services; and (ii) creating and distributing statistical and benchmarking and other products and services. Company shall own all right, title, and interest in and to such Aggregated Data. In furtherance of the foregoing, Subscriber hereby unconditionally and irrevocably assigns to Company all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. Notwithstanding anything to the contrary in this Agreement, Subscriber acknowledges and agrees that Company has the right to use the Resultant Data solely for its internal purposes and in all cases in accordance with the written instructions of Subscriber Users or Company.

4.6. Prohibited Data.

Subscriber acknowledges that the Solution is not designed with security and access management for processing the following categories of information: (a) nonpublic personal information as defined under the Gramm-Leach-Bliley Act, and protected health information as defined under the Health and Insurance Portability and Accountability Act of 1996; (b) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or
defense services; (d) ITAR (International Traffic in Arms Regulations) related data; and (e) any similar information that is regulated under any applicable law (each of the foregoing, “Prohibited Data”). Subscriber shall not, and shall not permit any Authorized User and/or Subscriber User to, provide any Prohibited Data to, or process any Prohibited Data through, the Solution. Customer is solely responsible for reviewing all Subscriber Data and shall ensure that no Subscriber Data constitutes or contains any Prohibited Data.

4.7. Survival.

In the event this Agreement expires or is terminated for any reason Section 4 will survive and continue in full force and effect.

5. WARRANTIES; DISCLAIMER

5.1. Mutual Warranties.

Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) any individual executing the Agreement on its behalf is duly authorized and empowered to execute and deliver the Agreement; (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; (iv) it has the full legal right and corporate power and authority to enter into and perform all of its obligations under the Agreement, and to comply with all terms and conditions thereof; and (v) it shall comply with all laws, rules, and regulations applicable to such Party, including without limitation, by complying with data subject requests pursuant to applicable data protection laws and as otherwise requested by Company.

5.2. Company Warranties.

Subject to the payment of the applicable Fees, Company warrants that it shall use commercially reasonable efforts to ensure the Solution performs materially in accordance with the Documentation. Subscriber’s sole and exclusive remedy for any breach of the foregoing warranty shall be, in the discretion of Company, for Company to use reasonable efforts to repair or replace the Solution. THE FOREGOING STATES COMPANY’S ONLY OBLIGATIONS (AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY) FOR ANY BREACH OF THE FOREGOING WARRANTY.

5.3. Subscriber Warranties.

Subscriber represents, warrants, and covenants to Company that: (i) Subscriber owns or otherwise has and will have the necessary rights, consents, and authorizations in and relating to the Subscriber Data so that, as received by Company and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; and (ii) Subscriber shall comply with all applicable laws, rules, and regulations applicable to the marketing and promotion of the Solution to current and potential Subscriber Users, including without limitation through any verbal, written, or electronic communications, whether by telephone, text message, email, or any other similar method.

5.4. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOLUTION AND SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES AGREE THAT, AS BETWEEN SUBSCRIBER AND COMPANY, SUBSCRIBER IS RESPONSIBLE FOR THE ACCURACY AND QUALITY OF SUBSCRIBER DATA AS INPUT IN THE SOLUTION. NO EMPLOYEE, AGENT, REPRESENTATIVE, OR AFFILIATE OF SUBSCRIBER HAS AUTHORITY TO BIND COMPANY TO ANY ORAL REPRESENTATIONS OR WARRANTIES CONCERNING THE SOLUTION. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT SHALL NOT BE ENFORCEABLE. SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ALL BACKUP AND PROTECTION OF ANY DATA AND INFORMATION THAT MAY BE LOST THROUGH TERMINATION OF SUBSCRIBER’S ACCESS TO THE SOLUTION. IN NO EVENT SHALL COMPANY BE RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SOFTWARE, SERVICE, OR COMPONENT THAT INTERACTS WITH THE SOLUTION AND ANY FAILURE OR UNAVAILABILITY OF SUCH THIRD-PARTY SOFTWARE, SERVICE, OR COMPONENT.

6. INDEMNIFICATION

6.1. Indemnification by Subscriber.

Subscriber shall indemnify, defend, and hold harmless Company from and against any third-party claims (each, a “Claim”) and all resulting losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses incidental thereto) arising out of or resulting from: (i) Subscriber’s use of the Solution in breach of this Agreement; (ii) the gross negligence or willful misconduct of Subscriber or its personnel; or (iii) the accuracy or validity of any payments made to Subscriber Users through the Solution.

6.2. Indemnification by Company.

Company shall indemnify, defend, and hold harmless Subscriber from and against any Claim and all resulting losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses incidental thereto) arising out of or resulting from: (i) any allegation that the Solution infringes or misappropriates any U.S. patent that has been issued as of the Effective Date, copyright, trademark, or trade secret of a third-party; or (ii) the gross negligence or willful misconduct of Company or its personnel. If a Claim alleging infringement or misappropriation of the Solution is or may be brought, Company may, at its sole option and expense: (a) obtain for Subscriber the right to continue to use the Solution consistent with this Agreement; (b) modify the Solution so that it is non-infringing and in compliance with this Agreement; or (c) replace the Solution with a non-infringing alternative with equivalent functionality. If none of the foregoing is reasonably possible, Company in its sole discretion may terminate this Agreement. Notwithstanding the foregoing, Company shall have no indemnification obligation for Claims related to (1) the combination or use of the Solution with any software, hardware, and/or processes not provided by Company; (2) Subscriber’s failure to comply with this Agreement and/or all Documentation; and/or (3) Subscriber’s modification of the Solution or use in breach of this Agreement. This Section 6.2 sets forth Company’s exclusive liability, and Subscriber’s sole remedy, for claims of intellectual property infringement.

6.3. Indemnification Process.

If any Party is entitled to indemnification under this Section 6, the Party seeking such indemnification (the “Indemnified Party”) shall: (i) promptly notify the Party obligated to provide indemnification (the “Indemnitor”) of the existence of the Claim (together with copies of any applicable documents or other relevant information); (ii) provide Indemnitor with reasonable assistance and cooperation in connection with the defense of the Claim, in each case at the Indemnitor’s sole expense; and (iii) allow Indemnitor to control defense of the Claim and any related settlement negotiations; provided that the Indemnified Party shall have the right to participate in such Claim or settlement negotiations with counsel at its selection and at its sole expense. The Indemnitor may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Indemnified Party or diminishes the Indemnified Party’s rights without first obtaining the Indemnified Party’s express written consent.

7. LIMITATIONS ON LIABILITY

IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA OR USE, OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER TO COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8. TERM AND TERMINATION

8.1. Term.

The Term of this Agreement shall commence on the Effective Date and continue for the Term set forth on the applicable Order Form.

8.2. Termination.

Either Party may terminate this Agreement in the event the other Party materially breaches this Agreement and fails to cure the breach within one hundred eighty (180) days following receipt of written notice from the non-breaching Party. To the extent that the Subscriber terminates the Agreement pursuant this Section, the Subscriber shall pay all Fees due and owing to the Company in respect to Services provided as of the effective date of termination. This Agreement also may be terminated immediately by Company in the event Subscriber breaches Sections 2.3, 3, or 4. To the extent Company terminates this Agreement pursuant to this Section, then Company shall retain all Fees paid by Subscriber to Company as of the effective date of termination, and Subscriber shall remain obligated to pay to Company any amounts that would have been due and payable during the remainder of the then-current term.

8.3. Effect of Termination.

Upon expiration or termination of this Agreement: (i) Company shall immediately terminate Subscriber’s access to the Solution; (ii) Subscriber and its Authorized Users shall cease all use of the Solution; and (iii) to the extent Subscriber has a copy of the Solution in its possession or control, Subscriber shall destroy all instances of the Solution in its possession or control and shall certify in writing to Company that all instances of the Solution have been permanently destroyed. Subscriber shall pay Company for all work performed up to the effective date of termination and all other unpaid amounts. In addition, Subscriber immediately shall return to Company or permanently destroy all Confidential Information of Company and copies of the Solution in Subscriber’s control or possession. Within thirty (30) days of the termination or expiration of this Agreement, Subscriber shall certify in writing to Company that all such Confidential Information has been returned and/or permanently destroyed. The following provisions shall survive termination or expiration of this Agreement: Sections 1, 2.3 – 2.6, 3, 4, 5.4, 6, 7, 8.3, 10, and 12.

9. EXPORT CONTROLS

The export of the Solution or their content may be subject to restrictions under United States and foreign laws. Subscriber shall not export the Solution, in whole or in part, to any country outside the United States, whether in tangible or electronic form, via access through some telecommunications method (such as through the Internet or via a dedicated dial-up line accessible from a country outside of the United States), or by disclosing the Solution to a foreign national, without the prior written consent of Company and then only in compliance with all applicable United States and foreign laws and regulations.

10. GOVERNING LAW; ARBITRATION

This Agreement shall be governed by and construed under the laws of the State of Illinois and the United States of America without regard to any conflicts of laws principles that would require the application of any other law. The Parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement. Subject to Section 4.3, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined exclusively by binding arbitration administered by (i) if Subscriber is a United States-based entity, the American Arbitration Association in accordance with its rules; and (ii) if Subscriber is a non-United States based entity, the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. All disputes shall be heard by a panel of three arbitrators. The place of arbitration shall be Chicago, Illinois, United States of America. The language of the arbitration shall be English. The arbitrators shall be experienced in disputes related to business acquisition transactions. Except as may be required by applicable law, no party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

11. FORCE MAJEURE

“Force Majeure Event” means any act or event that (a) prevents a Party (the “Non-performing Party”) from performing its obligations or satisfying a condition to the other Party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Non-performing Party, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, or any epidemic or pandemic, and (c) the Non-performing Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Non-performing Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other Party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event but excluding either Party’s payment obligations. When the Non-performing Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Non-performing Party shall immediately resume performance under this Agreement. Both parties shall work cooperatively in good faith to minimize any delays related to any Force Majeure Event using commercially reasonable efforts. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.

12. GENERAL PROVISIONS

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Except as otherwise expressly set forth herein, this Agreement is entered into for the benefit of the Parties only. In any action to enforce any of the terms, or on account of a breach, of this Agreement, the prevailing Party shall be entitled to recover its reasonable expenses, including reasonable attorneys’ fees. If any provision in this Agreement is found by a court of competent jurisdiction to be invalid, the Parties agree that the court shall give effect to the Parties’ intentions as reflected in the provision, and the other provisions shall remain in full force and effect. Neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations, directly or indirectly, including by operation of law, change of control, or otherwise, without the prior written consent of the other party; provided, that either Party may assign or transfer this Agreement: (i) to an affiliate, or (ii) pursuant to a change of control, reorganization, merger, or consolidation, by operation of law, or in connection with the sale of all or substantially all of its business or assets. Any assignment or transfer in violation of this Agreement shall be null and void. All communications required or otherwise provided under this
Agreement shall be in writing and shall be deemed received and effective (x) upon delivery if by hand; (y) on the date of receipt or refusal of receipt if by certified mail, postage prepaid, return receipt requested; or (z) on the first business day following deposit if by a nationally recognized
overnight courier. The sender shall address all notices, requests, demands, or other communications to the recipient at the address listed on the Order Form or as may be otherwise communicated in writing to the other Party. This Agreement, together with all Order Forms and the Services Agreement (to the extent entered into), constitutes the entire agreement between the Parties and supersedes any and all oral and/or prior written agreements between the Parties with respect to its subject matter. This Agreement may not be amended, modified, or altered, and no provision of this Agreement may be waived, except by a written instrument executed by authorized representatives of both Parties. This Agreement may be executed in several counterparts (.pdf or otherwise), all of which taken together shall constitute the entire agreement between the Parties hereto. If either Party executes this Agreement through electronic signature, such electronic signature shall have the same force and effect as an ink signature.