Master Services Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement (this “Agreement“) is by and between AUTOQUOTES, LLC a Delaware limited liability company with offices located at 8800 W Baymeadows Way, Suite 500, Jacksonville, FL 32256 (“Provider“) and [CUSTOMER NAME], a [State/Legal Entity Type]with offices located at [ADDRESS], acting on behalf of itself and its Affiliates, (collectively, “Customer“). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”  The effective date of the Agreement is the date when both Parties have signed the Agreement (¨Effective Date¨).

WHEREAS, Provider provides subscription-based access to the Services to its customers; and

WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.
   • “Affiliate” means with respect to a party, any legal entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that party. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, organization or body, whether through the ownership of voting securities or otherwise.
   • “Authorized User” means Customer and its employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom a unique id and password to access to the Services has been provisioned per the terms and conditions of this Agreement.
   • “Customer Data” means, all information, data, in any form or medium, that is: (i) submitted or otherwise transmitted by or on behalf of Customer or an Authorized User to the Provider; (ii) generated or processed by Provider as a result of the Services, including output from the Services; or (iii) derived from the data covered by clause (i) or (ii). For clarity, “Customer Data” includes, but is not limited to, any and all information financial information, Customer-specific prices, rates and discounts, sales commissions, customer lists, vendors lists, project information, that is, in each case, provided by or on behalf of Customer.
   • “Catalog”means the proprietary digital catalog service administered and provided by Provider on a subscription basis which publishes the Catalog Data to Authorized Users.
   • “Catalog Data” means data published by Provider either electronically or in hard copy form which may be accessed by Customer.
   • “Derivative Works” shall mean a revision, enhancement, modification, translation, abridgment, condensation or expansion of any Provider IP.
   • “Non-Identifiable Aggregated Data” means data derived from Customer Data that has been: (i) processed to remove all information that is identifiable to a particular individual or business entity (including but not limited to:geographic location, brand name, consultant, dealer, market segment, operator, end user, customer, zip code, state, competitor name) and is not capable of being re-identified; and (ii) aggregated with anonymized generic information of Provider’s other customers.
   • “Provider IP” means the Services, the Catalog, the Catalog Data, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, including any use by Customer of the Catalog Data, provided that it does not include any Customer Data.
   • “Services” shall mean those services as agreed to between the Parties and set forth in the Service Addenda, and includes the Subscription Services, Catalog, Catalog Data and any software used by Provider to provide the Services.
   • “Service Addenda” shall mean, individual or collectively, the Subscription Services Addendum, and other addenda that are attached to this Agreement and made a part hereof from time to time.
   • “Subscription Services”shall have the meaning set forth in the Subscription Services Addendum.
2. Access and Use.
   • Provision of Access.
     • Subject to the terms and conditions of this Agreement, Provider shall provide the Services to Customer, and hereby grants to Customer’s Authorized Users a non-exclusive, non-transferable (except in compliance with Section 12(e)) right to access and use, the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
     • Provider shall provide Authorized Users the necessary passwords and network links or connections to allow Authorized Users to access the Services.
     • The total number of Authorized Users will not exceed the number set forth in the Service Addenda, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. Authorized User ids cannot be shared or used by more than one Authorized User; no user id sharing is allowed.
     • In Schedule A attached hereto, Customer shall provide (and continue to update) the legal entity name(s) of any Affiliates which are likely to have Authorized Users under this Agreement.

• Catalog Data License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer and its Authorized Users a non-exclusive, royalty-free, non-sublicenseable, non-transferable (except in compliance with Section 12(e)) license to use the Catalog and Catalog Dataduring the Term solely for Customer’s internal business purposes in connection with its use of the Services.
• Use Restrictions.Customer shall not use the Services or Catalog Data for any purposes beyond the scope of the access granted in this Agreement. Except as permitted in this Agreement, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Catalog Data, in whole or in part in any manner except in furtherance of its legitimate business interests and such use by Customer is not done to permit or allow the Customer or any third party the ability to reverse engineer or utilize the Services or Catalog Data that is or could be detrimental or adverse to the interests (including financial interests) of Provider; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Catalog Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Catalog Data; or (v) use the Services or Catalog Data 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. For clarity, nothing in this Agreement shall restrict Customer from using any data that is similar to the Catalog Data that Customer receive from third party sources having permission to do so (e.g., manufacturers) provided that the third party has valid rights to provide such data.
• Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
• Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (F) a user of the Provider IP is suspected to not be an Authorized User or if an Authorized User has shared credentials or allowed access to the system by a non-Authorized User; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured by the Customer. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
• Use of Non-Identifiable Aggregated Data.  Customer acknowledges Provider has the right to  use Non-Identifiable Aggregated Data for Provider’s reasonable business purposes, including without limitation for analyzing customer needs and improving the Services.  Customer agrees that Provider may (i) make Non-Identifiable Aggregated Data publicly available in compliance with applicable law, and (ii) use Non-Identifiable Aggregated Data to the extent and in the manner permitted under applicable law

3. Customer Responsibilities.

General. Customer is responsible and liable for all uses of the Services, Catalog and Catalog Data resulting from access provided by Customer or provided to parties at Customer’s direction, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.For avoidance of doubt, any Terms of Use or End User License Agreement displayed in connection with the Services (collectively, “EULA”) shall not apply to Customer or its Authorized Users, even if such EULA is accepted by an Authorized User.  This Agreement shall supersede and control over any EULA and such EULA will be null and void with regard to Customer and its Authorized Users.

4. Service Levels and Support.
   • Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts make the Services available in accordance with the service levels set out in the Service Addenda.
   • Support. The access rights granted hereunder entitles Customer to the support services described in the Service Addendafor so long as Customer is subscribing to the Services pursuant to this Agreement and so long as Customer is not in breach of this Agreement.
5. Fees and Payment.
   • Fees. Customer shall pay Provider the fees (“Fees“) as set forth in the applicable Sales Order Form in accordance with the Service Addenda without offset or deduction. Provider reserves the right to change pricing levels, discounts or fee structures subject to providing reasonable advance notice to Customer prior to the beginning of any Renewal Term. Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for three (3) days or more Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
   • Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
   • Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records of Customer’s use during the Term and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, annually inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds ten percent (10%) for any year. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of one year after the termination or expiration of this Agreement.
6. Confidential Information.

(a)  Definition of Confidential Information.  From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, that is marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain (other than as a result of a breach of this Section 8); (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. Notwithstanding the foregoing exceptions, Customer Data shall always be considered Confidential Information of Customer, subject to Provider’s rights in Section 2(f).

(b) Protection of Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, agents, consultants, lawyers, and advisors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder, and provided that any third parties are bound by written confidentiality obligations or professional rules requiring the confidential treatment of such information. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(c)Protection of Customer Data.  Without limiting the above, Provider shall maintain a commercially reasonable information security program that is designed to protect Customer Data through use of administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data consistent with prevailing industry practices. Provider will not (i) modify Customer Data, (ii) disclose Customer Data except as compelled by law in accordance with Section 6(b) or as expressly permitted in writing by Customer or this Agreement, or (iii) access Customer Data except to provide the Services or prevent or address service or technical problems, improve the functionality of our Services, to generate Non-Identifiable Aggregated Data as defined in Section 2(f), or at Customer request in connection with customer support matters.

7. Intellectual Property Ownership; Feedback.
   • Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP, Non-Identifiable Aggregated Data and Catalog Data. For purposes of this Agreement, all Provider IP shall be deemed to be Confidential Information of Provider, subject to the exceptions in Section 6(a). Provider shall be the owner of any and all right, title and interest (including without limitation, all Provider IP) in, of and to any Derivative Works.
   • Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Customer’s Confidential Information. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data solely to the extent necessary for Provider to provide the Services to Customer in accordance with this Agreement, subject to Provider’s right to use Non-Identifiable Aggregated Data as set forth in Section 2(f). For purposes of this Agreement, all Customer Data shall be deemed to be the Confidential Information of Customer, subject to the exceptions in Section 6(a).  Except as expressly permitted in this Agreement, in no event may Provider copy, modify, or create derivative works of Customer Data, in whole or in part in any manner except in furtherance of its legitimate business interests and such use by Provider is not done to permit or allow Provider or any third party the ability to reverse engineer or utilize the Customer Data that is or could be detrimental or adverse to the interests (including financial interests) of Customer.
   • Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features, corrections, modifications or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback, unless Customer informs Provider that such Feedback includes any Customer Confidential Information or Customer Data and Customer requests such information be removed from the Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Warranty Disclaimer
   • Provider represents, warrants and covenants that: the Services will substantially conform to the associated user documentation provided to Customer by Provider and the terms of this Agreement; (ii) it has sufficient right, title, interest and consents to grant all licenses and perform its obligations in accordance with this Agreement; and (iii) it will comply with all laws, rules and regulations applicable to Provider in the performance of its obligations under this Agreement. In the event of an undisputed breach solely caused by Provider of the warranty set forth in clause (a) of this Section 8, Provider shall at its option and expense, promptly: (x) correct the deficiencies in the Services (or portion thereof) resulting in the non-conformity, or (y) provide functionally-equivalent substitute Service reasonably suitable to Customer.
   • EXCEPT AS EXPRESSLY PROVIDED HEREIN, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
   • Provider Indemnification.
     • Provider shall indemnify, and hold harmless Customer, Authorized Users and their respective directors, officers, agents, employees (collectively, “Customer Indemnitees”) from, and at the Customer Indemnitee’s sole option, defend them against any and all losses, damages, liabilities, costs, fines, penalties, expenses (including reasonable attorneys’ fees) (“Losses“) incurred by the Customer Indemnitee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Services, Catalog, Catalog Data, Provider IP or any use of the foregoing in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, and allows Provider sole authority to control the defense and settlement of such claim. Notwithstanding the foregoing, Provider may not settle any Third-Party Claim against a Customer Indemnitee without Provider’s prior consent to such settlement, unless such settlement: (x) is solely for monetary damages for which Provider is fully indemnified hereunder (y) fully releases Customer Indemnitees from all liability under such Third Party Claim; and (z) does not include an admission of wrongdoing, and further provided that Customer Indemnitees will provide the Provider with all reasonable information and assistance (at the Provider´s sole cost and expense).
     • If such Third-Party Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing without material degradation of the functionality, performance or quality of the Services, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and provide a refund of unamortized Fees paid by Customer.
     • This Section 9(a)will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized or recommended by Provider in writing, or where Provider know of such combination and did not object; (B) modifications to the Services not made by or authorized by Provider; or (C) Customer Data in the form and format provided by Customer.
   • Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Provider promptly notifies Customer in writing of the claim and allows Customer sole authority to control the defense and settlement of such claim. Notwithstanding the foregoing, Customer may not settle any Third-Party Claim against Provider without Provider’s prior consent to such settlement, unless such settlement: (x) is solely for monetary damages for which Provider is fully indemnified hereunder (y) fully releases Provider from all liability under such Third Party Claim; and (z) does not include an admission of wrongdoing, and further provided that Provider will provide the Customer with all reasonable information and assistance (at the Customer´s sole cost and expense) .
10. Limitations of Liability.
    • EXCEPT FOR LOSSES ARISING OUT FROM (i) EITHER PARTY´S INDEMNIFICATION OBLIGATIONS, (ii) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (iii) PROVIDER’S MISUSE OF CUSTOMER DATA; (iv) CUSTOMER’S BREACH OF SECTION 2(c), AND (iv) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (¨EXCLUDED CLAIMS¨), EACH PARTY HEREBY AGREES THAT IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
    • EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED ONE (1) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    • FOR EXCLUDED CLAIMS, IN NO EVENT WILL PROVIDER´S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED THREE (3) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    • THESE LIMITATION OF LIABILITY PROVISIONS DO NOT APPLY TO A CUSTOMER´S OBLIGATION TO PAY FEES OWED PURSUANT TO THIS AGREEMENT.
11. Term and Termination.
    • Term.

The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect through twelve (12) months from the Effective Date (the “InitialTerm“).  This Agreement will automatically renew for twelve (12) months unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“); however,for those Customers who had accounts with Provider prior to this Agreement, the annual anniversary date of the Customer’s account with Provider will be the measuring date for annual renewal invoices and notices of non-renewal.

• Termination. In addition to any other express termination right set forth in this Agreement:
  • Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
  • 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: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  • either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
• Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, each Party shall immediately discontinue use of the other Party’s Confidential Information and, without limiting either Party’s obligations under Section 6, each Party shall delete, destroy, or return all copies of the other Party’s Confidential Information and certify in writing that such Confidential Information has been deleted or destroyed. No expiration or termination will affect either Party’s obligation to pay or refund Fees that may have become due before such expiration or termination.
• Refund or Payment upon Termination. If this Agreement is terminated for cause by Customer in accordance with the “Termination” section above, Provider will refund Customer any prepaid fees covering the remainder of the term of all Sales Order Forms after the effective date of termination.  If this Agreement is terminated by Provider in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Sales Order Forms to the extent permitted by applicable law.   In no event will termination relieve Customer of its obligation to pay any fees payable to Provider for the period prior to the effective date of termination.
• Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12. Miscellaneous.
    • Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Addenda to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    • Force Majeure. Neither Party will be held liable, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority outside of the ordinary course, including imposing an embargo, provided that (i) the non-performing Party is without fault in causing or failing to prevent the occurrence of such event, (ii) and such occurrence could not have been prevented or circumvented by reasonable precautions or work-around plans reasonably available to the non-performing Party (each a “Force Majeure Event”).
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No “click-wrap”, “shrink-wrap” or other agreement, notice or terms that accompany the Services shall be effective, nor shall Customer’s or Authorized Users’ consent to any such click-wrap, shrink-wrap or other agreement be required for Customer or Authorized Users to use or receive the Services. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Disputes; Mediation; Binding Arbitration; Governing Law; Emergency Relief. All claims and disputes arising under or relating to this Agreement between the parties shall first be resolved by mediation with written notice to the other party of its intent to mediate. In the event that mediation does not resolve the dispute within forty-five (45) days of said notice, all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration under Delaware law in Duval County, Florida unless another location is mutually agreeable to the parties.  The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association (AAA).  Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees.  Any such arbitration shall be conducted by an arbitrator experienced in cloud-based web services and shall include a written record of the arbitration hearing.  The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity.  Judgment upon the award of arbitration may be entered in any court of competent jurisdiction. For emergency or interim relief, the parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.
    • Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, except that a Customer may assign its rights and obligations under this Agreement without such consent [but with timely written notice] as a whole as part of the sale or transfer of all or substantially all of its assets and business, including by merger or consolidation. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
    • US Government Rights. Each of the Catalog Data and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software Catalog Data” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Catalog Data as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to 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.
    • 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.
    • All costs and expenses incurred in connection with this Agreement and each other agreement, document and instrument contemplated by this Agreement and the transactions contemplated hereby and thereby shall be paid by the party incurring such costs and expenses.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.  BY SIGNING BELOW,   THE SIGNATORY REPRESENTS AND WARRANTS THAT THEY HAVE THE CORPORATE POWER AND AUTHORITY TO BIND SUCH ADDITIONAL ENTITIES.

Schedule A:  Customer Affiliate Names

Customer shall provide (and continue to update) the legal entity name(s) of any Affiliates which are likely to have Authorized Users under this Agreement.  Customer agrees to update this list upon annual renewal of the Agreement.

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SUBSCRIPTION SERVICES ADDENDUM

This Subscription Services Addendum (“Addendum”) is by and between the Customer and Provider pursuant to the attached Master Services Agreement by and between the parties (“Agreement”).  This Addendum is effective as of Effective Date and is governed by the terms and conditions of the Agreement. Capitalized terms used but not defined herein shall have the meanings accorded to them in the Agreement.

1. USE OF SERVICES: Provider has developed and maintains certain software and data products collectively known as “Subscription Services.” Authorized Users will be provided access to the Subscription Services either through downloadable software or via a hosted web server. In all cases, the Authorized User is responsible for establishing internet connection to use the Subscription Services. Provider shall provide the Subscription Services as described in this Subscription Services Addendum, or as described in a sales order accepted by Customer (“Sales Order Form”).

1. FEES: Customer shall pay fees based on the Subscription Fee Schedule either contained herein or as amended via a Sales Order Form or renewal invoice which may be updated by Provider from time to time and become effective for Customer upon renewal of this Subscription Services Addendum. All fees are due in accordance with Section 5(a) and Section 11(a) of the Agreement. In the event of a conflict between a Sales Order Form or renewal invoice and the Agreement, the terms of the Agreement will control such conflict.
2. SERVICE LEVEL AGREEMENT: Provider shall make commercially reasonable efforts to maintain Subscription Services availability and to provide advanced notification of any known service periods that require Subscription Services to be unavailable. Provider may provide Customer access to on-line support and training tools as well as live support via telephone or other means Monday through Friday from 8am to 5pm Eastern Standard Time, excluding major holidays. Emergency on call support is available from 5pm to 8pm Monday through Friday and 8am to 8pm on Saturdays and Sundays.  Product defects reported by Customer or detected by Provider will be evaluated by severity and ability to make alterations to the Software Services. Provider shall determine what, if any, alterations shall be made to the Software Services and timing of those changes.

ADDITIONAL TERMS AND CONDITIONS:  Customer is responsible for compliance by its Authorized Users of the terms and conditions of the Agreement and agrees to make each Authorized User aware of the restrictions set forth in the Agreement and this Addendum.

IN WITNESS WHEREOF, the Parties hereto have executed this Subscription Services Addendum to be coterminous with the underlying Master Services Agreement.  BY SIGNING BELOW, THE SIGNATORY REPRESENTS AND WARRANTS THAT THEY HAVE THE CORPORATE POWER AND AUTHORITY TO BIND SUCH ADDITIONAL ENTITIES.