These Terms and Conditions (“Terms”) sets forth the terms and conditions that apply to access and use of the Application (asdefined below) of Gamify Software, Inc. (“Provider”) by the customer set forth on an Order Form submitted to Provider(“Customer”). These Terms, together with (i) any order form submitted by Customer and accepted by Provider (“OrderForm”), any statement of work submitted to and accepted by Provider (“SOW”), and (iii) Provider's Privacy Policy found athttps://www.gogamify.com/privacypolicy, constitute the “Agreement.” Provider and Customer may be referred to hereinindividually as a “Party” or collectively as the “Parties.”

This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use theApplication, (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement,or (3) when you enter into an Order Form (“Effective Date”).

BEFORE ACCEPTING THIS AGREEMENT, CUSTOMER IS ADVISED TO CAREFULLY READ THE TERMSOF THIS AGREEMENT AND ANY APPLICABLE DOCUMENTATION. BY CLICKING TO ACCEPT THISAGREEMENT, CUSTOMER (1) AGREES TO BE BOUND BY AND BECOMES A PARTY TO THISAGREEMENT AND (2) CONFIRMS THAT THE INDIVIDUAL ENTERING THIS AGREEMENT HASAUTHORITY TO SO BIND CUSTOMER WITHOUT FURTHER ACTION BY CUSTOMER. IF CUSTOMERDOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT CLICK THE“AGREE” BUTTON AND THE APPLICATION WILL NOT BE USABLE.

WHEREAS, Customer desires to utilize Provider’s Application as described herein and Provider desires to provide Customeraccess to such Application, subject to the terms and conditions set forth in the Agreement;NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein and for other good andvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.
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1.1. “Access Credentials” means any username, identification number, password, license or security key, securitytoken, PIN, or other security code, method, technology, or device used, alone or in combination, to verify anindividual’s identity and authorization to access and use the Application.

1.2. “Application” means the software program provided by Provider named “Gamify” and that is ordered byCustomer through an Order Form and downloaded by You through an Application Store’s account to a Device.

1.3. “Application Store” means the digital distribution service operated and developed by Apple Inc. (Apple AppStore) or Google LLC (Google Play Store) by which the Application has been downloaded to a Device.

1.4. “Authorized Users” means any individuals in relation to Customer’s order of the Application (a) who areauthorized by Customer to access and use the Application in accordance with the Agreement, (b) for whom accessto the Application has been purchased hereunder, and (c) who have accepted and are bound by the EULA.

1.5. “Content” means information, data, and other content, in any form or medium, that is collected, uploaded, orotherwise processed, directly or indirectly by You through the Application. Content may, in some situations,include Authorized Users' Personal Information. Content does not include Resultant Data or Usage Data.

1.6. “Device” means any device that can access the Application such as a computer, a mobile phone, or a digital tablet.

1.7. “Data Protection Laws” mean collectively any applicable data protection, privacy, or similar laws applicable tothe processing of Personal Information in the jurisdiction where Application is accessible or used or applicable tothe Personal Information processed as part of the Application, if any.

1.8. “EULA” means Provider’s end user license agreement to which each Authorized User must agree before accessingthe Application.

1.9. “Family Sharing” or “Family Group” are terms that permit You to share the Application with other familymembers by allowing them to view and download each other’s eligible Applications to their associated Devices.

1.10. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for, or otherwise nowor hereafter in existence under or related to any patent, copyright, trademark, trade secret, data or databaseprotection, or other intellectual property rights Laws and all similar or equivalent rights or forms of protection, inany part of the world.

1.11. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment,decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, orany arbitrator, court, or tribunal of competent jurisdiction. “Law” includes all Data Protection Laws.

1.12. “Personal Information” means information which may be used, alone or in conjunction with any other information, to identify a specific person or to make a specific person identifiable, including, without limitation,any (1) name, social security number, date of birth, official State or government issued driver’s license oridentification number, alien registration number, government passport number, employer or taxpayer identificationnumber; (2) unique biometric data, such as fingerprint, voice print, retina, iris image, or other unique physicalrepresentation; (3) unique electronic identification number, address, or routing code; or (4) telecommunicationidentifying information or access device, in each case to the extent protected under any Data Protection Law.

1.13. “Resultant Data” means data or information related to or derived from Content that is processed by Provider in anaggregate, de-identified, or anonymized manner, including to compile statistical and performance informationrelated to the provision and operation of the Application.

1.14. “Third-Party Services” means any services or content (including data, information, applications, and otherproduct services) provided by a third party that may be displayed, included, or made available by the Application.

1.15. “Usage Data” means any data or other information processed by or on behalf of Provider relating to the provision,access, use, or operation of the Application by You, including any data or other information derived therefrom.

1.16. “You” means Customer or an Authorized User, as applicable.

2. Application; License; Use.

2.1. License and Use of Application. Subject to and conditioned on Customer’s compliance with the terms of theAgreement and the Authorized Users’ compliance with the EULA, Provider grants to Customer a non-exclusive,limited, revocable, non-transferable, and non-sublicensable right to access and use the Application during the Term,solely for use by Customer and its Authorized Users, where applicable, in accordance with the Agreement. Suchuse is limited to Your internal or personal and non-commercial use; provided, however that an Authorized Usermay share the Application in a Family Group. Access Credentials are personal to Customer and each AuthorizedUser and may not be shared with or used by any other party except for those in a Family Group. Customer has andwill retain sole responsibility for all access to and use of the Application by You and will securely administer thedistribution and use of all Access Credentials to protect against any unauthorized access to or use of theApplication. Customer shall not permit Authorized Users in excess of the number allotted on the Order Formunless approved in writing by Provider.

2.2. Use Restrictions. Customer shall not (and shall not allow any Authorized User or third party to): (a) copy, modify, adapt, translate or otherwise create derivative works or improvements of the Application, (b) reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to discover the source code of the Application, in whole or in part, (c) rent, lease, lend, sell, sublicense, assign, distribute, publish or otherwise transfer or make available rights in or to the Application, (d) remove, delete, alter, or obscure any specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Application, including any copy thereof, (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Application, or (f) access or use theApplication in any manner or for any purpose: (i) that infringes, misappropriates, or otherwise violates anyIntellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer); (ii) to gather competitive information or compete directly or indirectly with Provider; or (iii) that violates any applicableLaw. You shall comply with all applicable Laws and regulations in Your use of and access to the Application. Youmay only use the Application on a Device that You own or control and as permitted by the Application Store’sterms and conditions.

2.3. Content Guidelines. The Application may permit You to upload Content in a manner that makes Content publicly available or accessible to other users of the Application. Customer is solely responsible for any Content uploaded to the Application. You shall not use the Application to do any of the following:
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(a) Harass, threaten, disrupt, or defraud other users or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment;
(b) Make unsolicited offers, advertisements, political campaigns, proposals, or send junk mail or “spam” to other users;
(c) Impersonate another person or access another user’s account;
(d) Share Provider-issued passwords with any third party or encourage any other users to do so;
(e) Upload any material that is damaging to computer systems or data of Provider or users of the Application (e.g.viruses, corrupted files, or any other similar software files); and
(f) Upload or post any material that is inappropriately violent, unduly graphic, pornographic, bigoted, derogatory, racist, or offensive, or that violates the Intellectual Property Rights of any third party.

Customer acknowledges that Provider has the right, but no obligation, to monitor any data, information, or other materials that You may upload to the Application. Provider may remove any data, information, or other material that Provider determines, in its sole discretion, violates the foregoing requirements; provided, that Provider takes no responsibility and assumes no liability for any data, information, or other material that is uploaded to theApplication by You.

2.4. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Application that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Application to its customers; (ii)the competitive strength of or market for the Application; or (iii) the Application’s cost efficiency or performance; or (b) to comply with applicable Law. You acknowledge that Provider is not obligated to make any changes, modifications, or updates to the Application.

2.5. Suspension or Termination of Application. Provider may, directly or indirectly, suspend, terminate, or other wise deny Your or any other person’s access to or use of all or any part of the Application, without incurring any resulting obligation or liability, if Provider believes that there has been a material breach of Your obligations under the Agreement, a security breach, a violation of Law, an Authorized User's breach of the EULA, or an AuthorizedUser’s request to opt-out of the Application or exercise of any right under Data Protection Laws. This Section 2.5does not limit any of Provider’s other rights or remedies, whether at Law, in equity, or under the Agreement.

2.6. Electronic Messaging. Provider may include the ability to communicate with Authorized Users using SMS, other text message mechanisms, email, or other electronic messaging platforms (each an “Electronic Message”). To the extent Customer or Authorized Users opt-in to Electronic Messages, Customer shall ensure that all ElectronicMessages comply with applicable Law.

2.7. Promotions. Customer may have the ability to run promotions within the Application for its Authorized Users.Customer is solely responsible for payment or delivery of any promotional prize or giveaway it runs or offers through the Application.

2.8. Technical Support Services; Availability. Provider does not provide any maintenance or support for the download and use of the Application. To the extent any maintenance or support is agreed to separately in writing or is required by Law, Provider (and not the Application Store) will provide such maintenance or support.

2.9. Professional Services. Provider will provide any professional services, including without limitation, customization, implementation, or other services (“Professional Services”) that are described in an applicable SOW that may be executed between the Parties from time to time. Provider will diligently perform the Professional Services in accordance with the applicable SOW, including any specifications in the SOW. Provider will use commercially reasonable efforts to complete the Professional Services.

(a) Non-Exclusivity of Professional Services. Customer acknowledges that Provider may provide services similar to the Professional Services on behalf of other Provider customers. Provider may work for other customers without restriction, even if work is done for a potentially competing company or individual. Nothing in the Agreement may be construed to limit Providers’ business, including the provision of the Application to other Provider customers.
(b) Ownership. Notwithstanding anything to the contrary in the Agreement or any SOW, Provider retains ownership of all of Provider’s Intellectual Property Rights directly or indirectly related to the Application, including all Professional Services performed under any SOW, whether now existing or whether conceived, developed, or reduced to practice, solely or jointly with Customer, in connection with the Professional Services or otherwise related to the Application under this Agreement.

3. Fees and Payment.

Customer shall pay Provider the fees set forth in the Order Form or any applicable SOW, including any costs of the Professional Services and Application that Provider passes through to Customer. Unless otherwise set forth in the Order Form or applicable SOW, invoices are due and payable in United States dollars within thirty (30) day safter the invoice date, without deduction or setoff. Customer shall pay or reimburse Provider for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of or related to the Agreement or the transactions contemplated hereby, other than net income taxes imposed on Provider. Any amount not paid when due is subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is more, determined and compounded daily from the date due until the date paid.

4. Confidentiality.

4.1. Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 4.2,“Confidential Information” means information in any form or medium (whether oral, written, electronic, or other)that the Disclosing Party considers confidential or proprietary, or information that should by its nature be considered confidential, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, the Application and the underlying data (including Resultant Data and Usage Data) are the Confidential Information of Provider andContent is the Confidential Information of Customer.

4.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the ReceivingParty without restriction on use or disclosure prior to such information’s being disclosed or made available to theReceiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not known to the Receiving Party to be under any obligation to maintain its confidentiality; or (d) was or is independently developed by the ReceivingParty without reference to or use of any Confidential Information.

4.3. Protection of Confidential Information. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information except to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section4.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the ConfidentialInformation as the terms set forth in this Section 4. Each Party shall safeguard the other Party’s ConfidentialInformation from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care, shall promptly notify theDisclosing Party of any unauthorized use or disclosure of Confidential Information, and cooperate with theDisclosing Party to prevent further unauthorized use or disclosure.

4.4. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:(a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that theDisclosing Party can seek a protective order or other remedy or waive its rights under Section 4.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 4.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

5. Non-Solicitation.

During the Term and for one (1) year thereafter, neither Party may, and shall not assist any other person to, directly or indirectly recruit, employ, engage as an independent contractor, or solicit for employment or engagement as an independent contractor any person that is, or within the six (6) months prior to such recruitment, hiring, engagement or solicitation, was, employed or engaged as an independent contractor by the other Party; provided, that the foregoing obligation does not apply to a bona fide response to a general job posting or solicitation that was not targeted at a particular employee or contractor.

6. Intellectual Property Rights.

6.1. Application. As between Customer and Provider, Provider is and will remain the sole and exclusive owner of all right, title, and interest in and to the Application and any underlying data (excluding Content, but includingResultant Data and Usage Data), including all Intellectual Property Rights therein, and with respect to third-party materials, the applicable third-party providers own all right, title and interest, including all Intellectual PropertyRights, in and to such third-party materials. Customer has no right, license, or authorization with respect to any of the Application or underlying data (other than the Content) except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to any restrictions in the Agreement (or such third-party license, as applicable). Provider expressly reserves all other rights in and to the Application. To the extent Customer has any right, title or interest in the Resultant Data or Usage Data, Customer hereby assigns all such right, title, and interest in and to such Resultant Data and Usage Data, including in each case, all Intellectual Property Rights relating thereto. Customer hereby grants to Provider a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets of the business unit operating the Application or equity, or operation of law),sub licensable license to use, copy, modify, or distribute, including by incorporating into the Application, any suggestions, enhancement requests, recommendations or other feedback provided by You, relating to the operation of the Application. Included in such license is the right to (i) identify or reference Customer as a user ofApplication and a right to use Customer’s logo in connection therewith, and (ii) perform and make public a case study with respect to Customer and its use of the Application and results of the Application.

6.2. Content. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Content, including all Intellectual Property Rights embodied therein, subject to the rights and permissions granted in this Section 6.2. Customer hereby grants to Provider a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, sub licensable and transferable license to (i) use, copy, process, transmit, store, host, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the Content in connection with the Application, and (ii) otherwise access, use or make reference to any Intellectual Property Rights in the Content: (a) to provide the Application including to enable You access and use the Application; (b) for diagnostic purposes; (c) to make any changes or improvements to theApplication, including as set forth in Section 2, whether requested by You or not; (d) to develop other services; and(e) as reasonably required for the performance of Provider’s obligations under the Agreement. For clarity, the foregoing license continues after termination of the Agreement with respect to any Content that You post or otherwise make publicly available through the Application. To the extent any Content constitutes PersonalInformation, the terms of Provider’s Privacy Policy apply.

6.3. Personal Information. Each Party shall use and process any Personal Information that such Party has access to in connection with the Agreement in accordance with applicable Data Protection Laws.

7. Representations, Warranties, and Covenants.

7.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement; and (c) when executed/electronically accepted and delivered by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

7.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants toProvider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to theContent so that, as received by Provider and processed in accordance with the 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. To the extent Customer has access to and utilizes any Authorized Users'Personal Information in the Application, Customer represents and warrants that Customer has secured all permissions necessary to allow Provider to process such Personal Information. Further, Customer represents and warrants that: (a) it is not located in a country that is subject to any United States embargo or that has been designated by the United States government as a “terrorist supporting” country; and (b) it is not on any UnitedStates government list of prohibited or restricted parties.

7.3. Third-Party Services. The Application may contain or require use of Third-Party Services that require notices or additional terms and conditions. Provider will deliver such required third-party notices or additional terms and conditions to Customer from time to time upon written request and are incorporated by reference into theAgreement. By accepting the Agreement, Customer is also accepting the additional terms and conditions, if any, set forth in such third-party notices or terms and conditions. You acknowledge that Provider is not responsible forThird-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, PROVIDER MAKES NO WARRANTIES AND ACCEPTS NO LIABILITY WITH RESPECT TO THIRD-PARTY SERVICES.

7.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES AND COVENANTS SET FORTH IN SECTION 7.1, ALL SERVICES, INCLUDING THE APPLICATION ARE PROVIDED “AS IS” AND“AS AVAILABLE.” PROVIDER DOES NOT WARRANT THAT YOUR USE OR INTEGRATION OF THE APPLICATION WITH CUSTOMER'S PLATFORM OR YOUR DEVICE WILL SATISFY YOUR REQUIREMENTS OR SPECIFICATIONS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

7.5. Product Claims. Except as set forth herein, Provider does not make any warranties concerning the Application. To the extent any Law requires Provider to address any claims related to the Application, including any product liability claims, the Parties shall resolve any such dispute pursuant to Section 11.4.

8. Indemnification.

8.1. Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees (“Losses”) incurred by Customer resulting from any claim or action by a third party that Customer’s use of the Application (excluding Third-Party Services) in accordance with the Agreement infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from (a) modification of theApplication other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance withProvider’s written specification, (b) combination of the Application (or any portion thereof) with any other product or service, (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider, (d) Content, (e) Authorized User Personal Information (unless required by Data Protection Laws), (f) Provider implementing instructions or requests of Customer, or (g) any act, omission, or other matter described in Section 8.2, whether or not the same results in any claim or action against orLosses by any Provider Indemnitee.

8.2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its affiliates and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any claim or action by a third party (other than an affiliate of a Provider Indemnitee) to the extent that such Losses arise out o for result from, or are alleged to arise out of or result from (a) Customer’s use of the Application, (b) Content, including any processing of Content by or on behalf of Provider in accordance with the Agreement, (c) any other materials or information (including any documents, data, specifications, content, or technology) provided by or on behalf of You, (d) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the Agreement, or (e) negligence or more culpable act or omission(including recklessness or willful misconduct) by Customer or any third party on behalf of Customer, in connection with the Agreement. Customer shall also indemnify, defend, and hold harmless any Provider Indemnitee from any claim or Losses arising out of or related to Customer’s offer of a promotion as described in Section 2. The foregoing obligation does not apply to the extent that the alleged Losses arise from any act or other matter described in Section 8.1 to the extent Provider is indemnifying Customer for such act or other matter.

8.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any claim or action for which such Party believes it is entitled to be indemnified. The Party seeking indemnification shall cooperate with the other Party at the indemnitor’s sole cost and expense. The indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the indemnitor’s sole cost and expense. The Party seeking indemnification may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The indemnitor shall not settle any claim or action in any manner that adversely affects the rights of the Party seeking indemnification without that Party’s prior written consent, whichshall not be unreasonably withheld or delayed. If the indemnitor fails or refuses to assume control of the defense of such claim or action, the Party seeking indemnification may, but has no obligation, to defend against such claim or action, including settling such claim or action after giving notice to the indemnitor, in each case in such manner and on such terms as the Party seeking indemnification may deem appropriate. The Party seeking indemnification’s failure to perform any obligations under this Section 8.3 will not relieve the indemnitor of its obligations under thisSection 8, except to the extent that the indemnitor can demonstrate that it has been prejudiced as a result of such failure.

8.4. Mitigation. If the Application is, or in Provider’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Your use of the Application is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense (a) obtain the right for Customer to ontinue to use the Application materially as contemplated by the Agreement, (b) modify or replace theApplication, in whole or in part, to seek to make the Application (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Application, as applicable, under the Agreement, or (c) by written notice to Customer, terminate thisAgreement with respect to the Application and require Customer to immediately cease any use of the Application or any specified part or feature thereof, provided that if such termination occurs prior to the first anniversary of theEffective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 10.3,Customer will be entitled to a pro rata refund.

8.5. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE APPLICATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES,OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY

9. Limitations of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER WILL NOT BE LIABLE FOR CUSTOMER’S LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF PROVIDER OR ITS AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. PROVIDER’S (AND ITS AFFILIATES’) TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER BY CUSTOMER UNDER THIS AGREEMENT INTHE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. Term and Termination.
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10.1. Term. The Agreement commences as of the Effective Date and will continue in effect for twelve (12) months from such date (the “Initial Term”), unless earlier terminated by a Party in accordance with the terms of this Agreement.Following the Initial Term, this Agreement automatically renews for successive twelve (12) month terms (each, a“Renewal Term” and together with the Initial Term, the “Term”) unless either Party provides notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current Term.

10.2. Termination.
(a) Notwithstanding anything to the contrary in the Agreement, Provider may terminate an Order Form, any SOW, or the Agreement generally without cause upon ten (10) days’ prior written notice to Customer.

(b) In addition to any other express termination right set forth elsewhere in this Agreement either Party may terminate the Agreement, effective on written notice to the other Party, if (i) the other Party materially breaches the 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(ii) 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, in each case that is not discharged within sixty (60) days; (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.

10.3. Effect of Termination or Expiration. Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:(a) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate;(b) except as otherwise provided in this Agreement, each Party shall immediately cease all use of any ConfidentialInformation of the other Party and (i) promptly return or destroy, at the Receiving Party’s election and subject to applicable Law, all documents and tangible materials containing, reflecting, incorporating, or based onConfidential Information; and (ii) permanently erase all Confidential Information from all systems theReceiving Party directly or indirectly controls, provided that, for clarity, Provider’s obligations under thisSection 10.3 do not apply to any Resultant Data or Usage Data; and(c) notwithstanding anything to the contrary in the Agreement, the Receiving Party may retain ConfidentialInformation (i) to the extent and for so long as required by applicable Law and (ii) in the Receiving Party’s backups, archives, and disaster recovery systems until such Confidential Information is deleted in the ordinary course. For the avoidance of doubt, all information and materials described in this Section 10.3(c) will remain subject to all confidentiality, security, and other applicable requirements of the Agreement.

11. Miscellaneous.

11.1. Force Majeure. Provider is excused from performance of the Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.

11.2. Entire Agreement. This Agreement (including any modification hereof in accordance with Section 11.6), together with the Order Form, any SOW, and Provider’s Privacy Policy, represents the sole and complete agreement between Customer and Provider concerning its subject matter, and supersedes all prior agreements (both written and oral) between the Parties with respect thereto.

11.3. Severability. If any term or provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of the Agreement will continue in full force and effect.

11.4. Governing Law; Mediation; Arbitration.
(a) Oregon law governs the Agreement without reference to its conflict of law principles.
(b) The Parties shall first attempt to resolve any dispute arising out of or related to the Agreement (“Dispute”)shall first be submitted to the senior management of Provider and Customer for attempted resolution of theDispute. Senior management shall discuss the problem and negotiate in good faith to resolve the Dispute without necessity of any formal proceeding relating thereto. If senior management, within fifteen (15)calendar days of their first communication have not resolved the Dispute, the Parties shall immediately thereafter submit the Dispute to mediation with a mediator mutually chosen by the Parties.
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(c) If the chosen mediator is unable to resolve the Dispute within a reasonable time, as determined by the mediator (and not to exceed thirty (30) calendar days after the Parties meet for mediation), the mediator will issue a written statement to the Parties to that effect and the complaining Party may then pursue binding arbitration and the Parties will immediately thereafter submit the Dispute to binding arbitration in accordance with the commercial rules of the American Arbitration Association then in effect (the submission date to be deemed the “Arbitration Date”).
- (i) The Parties shall mutually choose a single commercial arbitrator with substantial experience in resolving complex commercial contract disputes. If the Parties cannot agree upon the arbitrator within fifteen (15) days of the Arbitration Date, then a single arbitrator will be selected in accordance with the rules of theAmerican Arbitration Association.
- (ii) The arbitrator will have the authority to grant specific performance and to allocate between the Partiesthe costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration)in such equitable manner as the arbitrator may determine.
- (iii) The non-prevailing Party in the arbitration shall pay the prevailing Party’s reasonable costs and expenses incurred in connection therewith (including reasonable attorney fees and payment for the arbitrator).
- (iv) Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
- (v) Notwithstanding the foregoing, either Party may institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.

(d) The Parties must institute any permitted legal suit, action, or proceeding arising out of or related to theAgreement exclusively in the federal or state courts in and for Clackamas County, Oregon, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein is effective service of process for any suit, action, or other proceeding brought in any such court. 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 the Agreement or the transactions contemplated hereby.

11.5. Notices. Any notices to Provider or to Customer must be sent to Provider’s or Customer’s, as applicable, address, via personal delivery, registered or certified mail, overnight courier, or email (with confirmation of transmission)and are deemed given (a) if delivered personally, upon receipt; (b) if delivered by registered or certified mail, three business days following deposit with the USPS; (c) if delivered by overnight courier, on the business day following deposit with such courier; and (d) if delivered by email, when sent, if sent during the recipient’s normal business hours, and otherwise on the next business day. Each Party’s address for service of notices is included on the applicable Order Form.

11.6. Amendment; Waiver. No amendment to or modification of the Agreement is effective unless it is in writing, identified as an amendment to the Agreement and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. A waiver of any default is not a waiver of any subsequent default.

11.7. Assignment and Change of Control. Customer may not assign, delegate, or otherwise transfer any of Customer’s rights or obligations in the Agreement without Provider’s prior written consent, and any such attempt is void. No permitted assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under the Agreement. Provider may terminate the Agreement in the event of a merger, reorganization or other transaction resulting in a change of control of the Customer, effective immediately upon notice of such termination to the Customer or to the surviving entity to which the Customer undergoes such change of control.The Agreement is binding upon and inures to the benefit of any respective successors and permitted assigns of theParties hereto.

11.8. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.

11.9. Relationship of the Parties. The relationship between Provider and Customer is one of independent contractors and nothing contained in the Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.

11.10. Survival. Any provision that should by its nature survive the termination or expiration of the Agreement, does survive.

11.11. Equitable Relief. Each Party acknowledges that a breach or threatened breach by such Party of any of its obligations could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and 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.

11.12. Counterparts. The Parties may execute Order Forms and SOWs in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

11.13. Reservation of Rights. Provider reserves for itself any right not expressly set forth in the Agreement.