Master Subscription Agreement

DESIGNERSAXIS, LLC

STUDIO DESIGNER

MASTER SUBSCRIPTION AGREEMENT

(Electronically Accepted Version)

Top of Form Bottom of Form This Master Subscription Agreement (the “Agreement”) is between DesignersAxis, LLC., a Delaware limited liability company dba Studio Designer, with a principal business address of 1551 S Robertson Blvd Los Angeles, CA 90035 (“SD”); and the Subscriber, as defined below. This Agreement is effective as of the date the Agreement is agreed to by both SD and the Subscriber (the “Effective Date”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, for purposes of this Agreement, unless the context otherwise requires, the following defined terms shall have the meanings set out below:

1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means the direct or indirect power to direct or cause the direction of the management and policies of the subject entity, whether through the ownership of more than fifty percent (50%) of the voting rights of the subject entity, by contract, or otherwise.

1.2 “Application” means the on-line, Web-based Studio Designer application and platform provided by SD to Subscriber and accessed via the SD Website, that is ordered by Subscriber pursuant to an Order Form, including associated Third-Party Applications and Platforms). The term “Application” shall, as applicable to Subscriber, refer to the level (or levels) of Studio Designer that Subscriber has ordered pursuant to an Order Form.

1.3 “Documentation” means the on-line documentation for the Application, accessible by Users at the SD Website, as such Documentation is updated from time to time.

1.4 “Fees” shall mean collectively the Services Fees and Support Fees.

1.5 “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful

or malicious code, files, scripts, agents, applications, or programs.

1.6 “Order Forms” means the ordering documents for purchases of the Services and Support hereunder, including addenda thereto, that are signed by Subscriber and SD or are electronically transmitted or submitted by Subscriber to SD and thereafter agreed to by SD, from time to time. Order Forms shall be deemed incorporated herein by reference.

1.7 “Services” means the Use of the Application and access to the Documentation provided by SD to Subscriber in accordance with the terms and conditions of this Agreement that are ordered by Subscriber pursuant to an Order Form.

1.8 “Services Fees” means the fees Subscriber shall pay to SD for the Services in accordance with this Agreement and any applicable Order Form.

1.9 “Subscriber” means the non-SD party who or which agrees to be bound by this Agreement, and its Affiliates.

1.10 “Subscriber Data” means all information and data concerning Subscriber submitted to or learned by SD in connection with the performance of this Agreement.

1.11 “Support” means the training, consultation, and support provided by SD or its agents in connection with the Use of the Application, that are provided pursuant to Section 3 of this Agreement or are ordered by Subscriber pursuant to an Order Form.

1.12 “Support Fees” means the fees Subscriber shall pay to SD for the Support in accordance with this Agreement and any applicable Order Form.

1.13 “SD Website” means https://www.studiodesigner.com or such other website or websites as may be designated by SD from time to time.

1.14 “Term” means the term of this Agreement as described in Section 10.

1.15 “Third-Party Applications and Platforms” means on-line, Web-based applications, platforms, and on-line or off-line software products that are provided by third parties, and which inter-operate with the Application.

1.16 “Use” means accessing the Application at the SD Website and recording, processing, compiling, manipulating, and displaying certain Subscriber Data which is entered into the Application by Users.

1.17 “Users” means individuals who are designated by Subscriber to Use the Application, for whom Services Fees have been paid by Subscriber with respect to their Use of the Application, and who have been supplied user identification numbers and passwords by Subscriber (or by SD at Subscriber’s request). Users may include, but are not limited to, employees, consultants, contractors, and agents of Subscriber.

2. SERVICES.

2.1 Provision of Services. In consideration of the payment by Subscriber of the Services

Fees in accordance with Section 4 hereof and subject to the terms and conditions of this Agreement, SD shall make the Application and Documentation available to Subscriber via the SD Website for the Term to Use the Application for Subscriber’s internal business use only by such number of designated Users for whom Services Fees have been paid, and to access and refer to the Documentation in accordance with this Agreement and any terms of use as may be provided in the Documentation from time to time. Unless otherwise specified in the applicable Order Form, (i) the Application is purchased as User subscriptions and may be accessed by no more than the specified number of Users for whom Subscriber has subscribed and for whom Services Fees have been paid, (ii) additional subscriptions for additional Users may be added at the same pricing then in effect for the current subscriptions, and (iii) each User subscription for the Application is for a specific designated individual and cannot be shared or used by more than one individual, but may be reassigned to new Users replacing former Users who no longer require ongoing Use of the Application. Subscriber agrees that its subscription(s) for the Applications hereunder and pursuant to an Order Form are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments by SD regarding functionality or features.

2.2 SD Responsibilities. SD shall: (i) provide Support in accordance with Section 3; (ii) use commercially reasonable efforts to make the Application and Documentation available twenty- four (24) hours a day, seven (7) days a week, except for (a) planned downtime to service the platform. We currently intend to provide at least eight (8) hours notice and currently intend to schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific Time Friday to 3:00 a.m. Pacific Time Monday), or (b) any unavailability caused by circumstances beyond SD’s reasonable control, including without limitation, industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SD employees), Internet service provider failures or delays, failure or any other Third-Party Applications and Platforms, or any other cause beyond SD’s reasonable control; and (iii) provide the Application only in accordance with applicable laws and government regulations.

2.3 Subscriber Responsibilities. Subscriber shall: (i) be responsible for Users’ compliance

with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Subscriber Data and of the means by which it acquired Subscriber Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or Use of the Application, and notify SD promptly of any such unauthorized access or Use; and (iv) Use the Application only in accordance with the Documentation and applicable laws and government regulations. Subscriber shall not (a) make the Application and Documentation available to any third party other than Users; (b) Use the Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) intentionally store or transmit Malicious Code in or to the Application, and Subscriber shall use commercially reasonable efforts to ensure that Malicious Code is not inadvertently or unintentionally stored in or transmitted to the Application; (d) interfere with or disrupt the integrity or performance of the Application or third-party data contained therein; or (e) attempt to gain unauthorized access to the Application, the Documentation, SD’s related systems or networks, or any Third- Party Applications or Platforms.

2.4 Limitations on Use. The right to Use the Application provided herein does not permit Subscriber to: (i) copy or reproduce the Application; (ii) copy or reproduce the Documentation; (iii) translate, adapt, vary, or modify the Application or Documentation, other than as necessary to customize reports as permitted by the Application; (iv) disclose the Application or Documentation to any third party other than Users; (v) disassemble, decompile, or reverse engineer the Application or create any derivative works thereof; (vi) provide third-party access, lease, rent, distribute, sell, assign, transfer, or enter into any time share, outsourcing, or service bureau arrangement with respect to the Application or Documentation; and (vii) permit the Use of the Application other than by Subscriber’s Users.

2.5 Subscriber Data. Subscriber shall be solely responsible for ensuring the accuracy of Subscriber Data input into the Application. Subscriber acknowledges and agrees that SD shall be responsible for back-up of any such Subscriber Data.

for the Application: (i) recorded, on-line training sessions in the Use of the Application; and (ii)

written, on-line Documentation in pdf format.

3.2 Additional Support. Personalized telephone and/or on-line training and support for Use of the Application may be available on an as-needed basis for each User for a fee as ordered by Subscriber pursuant to an Order Form. In addition, live training in the Use of the Application may be available on an as-needed basis for each User for a fee as ordered by Subscriber pursuant to an Order Form.

Support Fees for additional support and training will be at SD’s then-listed hourly rate plus expenses, unless otherwise agreed in the applicable Order Form.

4. FEES AND PAYMENT TERMS.

4.1 Fees. Subscriber shall pay all Services Fees for the Application and all Support Fees for the Support as specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) Fees are quoted and payable in United States dollars; (ii) Services Fees are based on the number of subscriptions for the Application purchased for Users and not actual usage; (iii) payment obligations for Support ordered pursuant to Order Forms are non-cancelable and Fees paid are non-refundable; and (iv) additional subscriptions for the Application for additional Users may be added at the same pricing then in effect for the current subscriptions. Services Fees for subscriptions of the Application for Users are on a monthly basis, and fees for User subscriptions added or cancelled in the middle of the month will be pro-rated based on the number of days in that month for which the subscription was active. SD reserves the right to increase Services Fees at least once in each calendar year upon notice provided on the SD Website.

4.2 Invoicing and Payment. Services Fees for the Application will be charged each month in advance on the first day of such month, and shall be paid by charge to Subscriber’s credit card. Subscriber agrees to provide authorization to SD to charge Subscriber’s credit card for Services Fees. Support Fees will be paid in the same manner as described above for Services Fees or will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, all Support Fees and any related costs are due net thirty (30) days from the invoice date. Subscriber is responsible for maintaining complete and accurate billing and contact information in the Application.

4.3 Overdue Charges. If any amounts invoiced hereunder are not received by SD by the due date, then at SD’s discretion, (i) such charges may accrue late interest at the lesser of (a) one and one-half percent (1.5%) per month, or (b) the highest amount permitted by applicable law, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due, from the date such payment was due until the date paid, and/or (ii) SD may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above. Subscriber also agrees to pay all costs of collection of unpaid Fees, costs, and interest, including, but not limited to, reasonable attorneys’ fees. Subscriber also agrees to pay $10 for each denied charge transaction with respect to Subscriber’s payment by credit card.

4.4 Suspension of Application. If Subscriber is in breach of this Agreement, then SD may, without limiting its other rights and remedies, suspend the right to Use the Application and access the

Documentation and stop performing the Support until such amounts are paid in full or such breach is cured.

4.5 Payment Disputes. SD shall not exercise its rights under Section 4.3 (Overdue Payments) or Section 4.4 (Suspension of Application) if the applicable charges are under reasonable and good-faith dispute and Subscriber is cooperating diligently to resolve the dispute.

4.6 Taxes. Unless otherwise stated, SD’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes assessable by any federal, state, provincial, local, or foreign jurisdiction (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with the Application and Support and its purchases hereunder. If SD has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 4.6, the appropriate amount shall be invoiced to and paid by Subscriber in accordance with Section 4.2 (Invoicing and Payment) and the other applicable provisions of this Section 4, unless Subscriber provides SD with a valid tax exemption certificate authorized by the appropriate taxing authority prior to the payment of any applicable Taxes. For clarity, SD is solely responsible only for Taxes assessable against it based on its income, property, and employees.

4.7 No Offset. Under no circumstances shall Subscriber withhold any sums due under this Agreement, whether by means of set-off or otherwise, nor shall it pay any sums due under this Agreement to any third party instead of SD, without the prior written consent of SD or as required by court order. Any sums so withheld or paid to a third party shall accrue interest under Section 4.3 (Overdue Charges) until received by SD.

5. PROPRIETARY RIGHTS

5.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, SD reserves all rights, title, and interest in and to the Application, the Documentation, and the Support and products thereof, including all related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein.

5.2 Restrictions. Subscriber shall not (i) permit any third party to access the Application, Documentation, and Support and the products thereof except as permitted herein or in an Order Form, (ii) create derivative works based on the Application, Documentation, or Support and the products thereof, (iii) copy, frame, or mirror any part or content of the Application, (iv) reverse engineer the Application, or (v) access the Application in order to (a) build a competitive product or service, or (b) copy any features, functions, displays, or graphics of the Application.

5.3 Ownership of Subscriber Data. As between SD and Subscriber, Subscriber exclusively owns all rights, title, and interest in and to all Subscriber Data.

5.4 Suggestions.
SD shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Application any suggestions, enhancement requests, recommendations, or other feedback provided by Subscriber, including Users, relating to (i) the operation of the Application, including, but not limited to, any features, functions, displays, or graphics of the Application, (ii) the Documentation, and (iii) the Support and any products thereof.

5.5 Federal Government End Use Provisions. SD provides the Application, including related software and technology, for ultimate federal government end use solely in accordance with the following:

Government technical data and software rights related to the Application include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Application or Computer Application Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with SD to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Subscriber shall include Subscriber Data; Confidential Information of SD shall include the Application, the Documentation, and the Support and products thereof; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Subscriber Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, consultants, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.3 Protection of Subscriber Data. Without limiting the above, SD shall, on its own accord to the extent possible maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Subscriber Data. SD shall not (a) modify Subscriber Data, (b) disclose Subscriber Data except as compelled by law in accordance with Section 6.4 (Compelled Disclosure) or as expressly permitted in writing by Subscriber; provided, however, that SD may disclose the identity of Subscriber as a client of SD, or (c) access Subscriber Data except to provide the Application or Support and prevent or address service or technical problems, or at Subscriber’s request in connection with customer support matters. Notwithstanding the foregoing, SD may aggregate or de-identify Subscriber Data with other data so that the data cannot be associated with Subscriber (“Aggregate Data”) for any lawful purpose, and Aggregate Data shall be SD’s Confidential Information.

6.4 Compelled Disclosure. Notwithstanding anything to the contrary in this Section 6, the Receiving Party may disclose Confidential Information of the Disclosing Party if the Receiving Party is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. WARRANTIES AND DISCLAIMERS.

7.1 SD Warranties.
SD warrants that (i) the Application will perform materially in accordance with the specifications provided in the Documentation, the functionality of the Application will not be materially decreased during the Term. For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in Section 10.3 (Termination by Subscriber) below.

7.2 Mutual Warranties. Each party represents and warrants that (i) it has the legal power and authority to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

7.3 Warranty Disclaimer. THE WARRANTY SET FORTH IN THIS SECTION 7 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY SD. SD EXPRESSLY DISCLAIMS, AND SUBSCRIBER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SD DOES NOT WARRANT THAT THE APPLICATION, SUPPORT, OR PRODUCTS OF THE SUPPORT WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION OR ANY PRODUCTS OF THE SUPPORT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE APPLICATION OR PRODUCTS OF THE SUPPORT WILL BE CORRECTED.
SD’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SD FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE APPLICATION OR PRODUCTS OF THE SUPPORT. THE PARTIES AGREE THAT THE FAILURE OF THE APPLICATION TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION OR A DECREASE IN THE FUNCTIONALITY OF THE APPLICATION WHICH CANNOT BE REMEDIED SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK OF THE QUALITY AND PERFORMANCE OF THE APPLICATION AND PRODUCTS OF THE SUPPORT IS WITH SUBSCRIBER.

8. MUTUAL INDEMNIFICATION.

8.1 Indemnification by SD. SD shall defend Subscriber against any claim, demand, suit, or proceeding (“Claim”) made or brought against Subscriber by a third party alleging that the use of the Application as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Subscriber for any damages awarded against, and for reasonable attorneys’ fees incurred by, Subscriber in connection with any such Claim; provided that Subscriber (i) promptly gives SD written notice of the Claim, (ii) gives SD sole control of the defense and settlement of the Claim (provided that SD may not settle or defend any Claim unless it unconditionally releases Subscriber of all liability), (iii) provides to SD all reasonable assistance, at SD’s expense, and (iv) does not prejudice in any manner SD’s conduct of such Claim. Notwithstanding anything to the contrary in this Section 8.1, SD shall have no liability for any claim of infringement based on (a) the use of a superseded or altered version of the Application if infringement would have been avoided by the use of a current or unaltered version of the Application which SD made available to Subscriber, or (b) the combination, operation, or use of the Application with software, hardware, or other materials not owned by SD.

8.2 Indemnification by Subscriber. Subscriber shall defend SD against any Claim made or

brought against SD by a third party (i) alleging that the Subscriber Data, or Subscriber’s or any User’s Use of the Application in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; (ii) alleging that Subscriber’s or any User’s Use of the Application in violation of this Agreement causes SD to be in breach of any agreement relating any Third-Party Application or Platform; (iii) based upon any Subscriber product or service, or on any resale or provision of the Application, the Support, or any products of the Support by Subscriber to such third party; (iv) based upon a representation made by Subscriber to such third party; or (v) based upon a breach by Subscriber of Section 12.1 (Compliance with Law and Ethical Brand Representation Standards); and shall indemnify SD for any damages awarded against, and for reasonable attorneys’ fees incurred by, SD in connection with any such Claim; provided that SD (a) promptly gives Subscriber written notice of the Claim, (b) gives Subscriber sole control of the defense and settlement of the Claim (provided that Subscriber may not settle or defend any Claim unless it unconditionally releases SD of all liability), (c) provides to Subscriber all reasonable assistance, at Subscriber’s cost, and (d) does not prejudice in any manner Subscriber’s conduct of such Claim. Subscriber also hereby indemnifies SD against any Claim for (A) alleged infringement of any U.S. registered copyright or patent or other intellectual property right of a third party, arising out of the use of the Application by Subscriber in any manner prohibited by or not contemplated by this Agreement, and (B) any claim related to or arising out of a financial transaction brought by any third party based on the use of the Application.

8.3 Injunction. If a final injunction is obtained against the use of any part of the Application by reason of infringement of a U.S. registered copyright or patent, SD will, at its option and expense, either (i) procure for Subscriber the right to continue to use the Application, (ii) modify the Application so that it becomes noninfringing, or (iii) terminate this Agreement. If SD selects option (iii) above, Subscriber shall, immediately upon receipt from SD of notice of termination, at SD’s option, cease Use of the Application and access of the Documentation and destroy or return all copies of the Application and other proprietary SD information in its possession or under its control.

8.4 Liability. The foregoing states SD’s entire obligation and liability with respect to the infringement of any intellectual property or other proprietary right.

8.5 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section 8.

9. LIMITATION OF LIABILITY.

9.1 Limitation. SD SHALL HAVE NO LIABILITY TO SUBSCRIBER OR ANY OTHER PERSON FOR LOSSES CAUSED BY OR RESULTING FROM THE USE OF THE APPLICATION, THE

DOCUMENTATION, THE SUPPORT, OR ANY PRODUCTS OF THE SUPPORT, OR WITH RESPECT TO SD’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS OR REVENUES OR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF SD TO SUBSCRIBER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE LESSER OF (i) THE AMOUNT PAID TO SD BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS, OR (ii) $1,000.
THE LIMITATIONS PROVIDED HEREIN APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, BOTH PARTIES NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS.
THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THIS AGREEMENT. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IN THE EVENT THE LIMITED WARRANTY PROVIDED IN SECTION 7 FAILS OF ITS ESSENTIAL PURPOSE.
OBLIGATIONS UNDER THE FOREGOING SHALL NOT LIMIT SUBSCRIBER’S PAYMENT (FEES AND PAYMENT TERMS) OR EITHER PARTY’S SECTION 4 INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (MUTUAL INDEMNIFICATION).

9.2 Force Majeure. Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its reasonable control including without limitation, industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving such party’s employees), Internet service provider failures or delays, any other Third-Party Applications and Platforms, or any other cause beyond its reasonable control; provided, however, that this provision shall have no application with respect to the payment of Fees and other amounts under this Agreement or any Sales Order.

10. TERM AND TERMINATION.

10.1 Term of Agreement. The Term of this Agreement commences on the Effective Date and continues until all User subscriptions for the Application have expired or been terminated.

10.2 Termination by SD. SD may terminate this Agreement (i) at any time upon written notice to Subscriber if Subscriber breaches any term or condition of this Agreement (including, but not limited to, breach of the terms of Use of the Application or the failure to pay when due the Fees and costs due under this Agreement or any Sales Order), or (ii) upon the first day of the month which follows a sixty-day period commencing on the date of notice of termination provided by SD to Subscriber. Upon any termination by SD under clause (i) above, the Services Fees for the Application shall cease at the beginning of the next succeeding month, and there will be no refund for Support Fees paid. Upon any termination by SD under clause (ii) above, the Services Fees for the Application shall cease upon termination, and there will be no refund for Support Fees paid. The obligation of Subscriber to pay Support Fees and costs shall not be affected by termination of this Agreement and the Support.

10.3 Termination by Subscriber. Subscriber may terminate this Agreement at any time by providing notice of such termination to SD. Upon any termination by Subscriber, the Services Fees shall cease at the beginning of the next succeeding month, and there will be no refund for Fees paid. Termination by Subscriber shall not relieve Subscriber of any obligations for Support to be provided under a Sales Order and for related Support Fees and costs. In no event shall any termination relieve Subscriber of the obligation to pay any Fees and costs payable to SD for the period prior to the effective date of termination.

10.4 Subscriber Data. After the effective date of termination of this Agreement, SD shall have any obligation to maintain or provide any Subscriber Data and shall thereafter, unless legally prohibited, delete all Subscriber Data in their respective systems or otherwise in their possession or under their control.

10.5 Surviving Provisions. The following sections shall survive any termination or expiration of this Agreement: Section 1 (Definitions), Section 4 (Fees and Payment Terms), Section 5 (Proprietary Rights), Section 6 (Confidentiality), Section 7 (Warranties and Disclaimers), Section 8 (Mutual Indemnification), Section 9 (Limitation of Liability), Section 10.4 (Return of Subscriber Data), Section 10.5 (Surviving Provisions), and Section 12 (Miscellaneous).

11. EXPORT COMPLIANCE.
The parties acknowledge that the Application, and other products and information provided under this Agreement are subject to United States export laws and regulations and that any use or transfer of any such thing must be authorized under those laws and regulations. Subscriber agrees that it will not distribute, transfer, or transmit products or information provided under this Agreement to any other person in violation of U.S. export regulations. If requested by SD, Subscriber agrees to execute written assurances and other export-related documents as may be required by SD to comply with U.S. export regulations. Each party shall comply with the export laws and regulations of the U.S. and other applicable jurisdictions in providing and using the Application. Without limiting the foregoing, (i) each of

SD and Subscriber represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Users to access or use the Application in violation of any U.S. export embargo, prohibition, or restriction.

comply with all applicable laws and regulations relating to the performance of its obligations under this Agreement. Subscriber shall comply with all applicable laws and regulations in marketing any product or service that incorporates any Support or products thereof and shall not engage in any deceptive, misleading, illegal, or unethical marketing activities, or activities that otherwise may be detrimental to SD or its brands. Subscriber shall comply in all respects with all applicable laws in its activities under this Agreement, including without limitation all laws and regulations restricting or prohibiting trade with certain individuals and/or countries, and the U.S. Federal Corrupt Practices Act (collectively, the “Laws”) and shall promptly inform

SD in writing upon becoming aware of any violations of the Laws in connection with this Agreement. Without limiting the foregoing, Subscriber warrants that it has not offered or paid, and will not offer or pay, any money or anything else of value, to any person for the purpose of securing any improper advantage in violation of the U.S. Federal Corrupt Practices Act or other applicable law.

12.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
Notwithstanding the foregoing, either party may assign or transfer this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
Section 12.4 shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
A party’s sole remedy for any purported assignment by the other party in breach of this

12.5 Solicitation. Subscriber shall not solicit the employment of nor employ any SD personnel who has been directly involved in the development, sale, installation, or support of the Application for a period of two (2) years from the termination of such individual’s employment at SD.

12.6 Attorneys’ Fees. Subscriber shall be responsible for SD’s reasonable attorneys’ fees associated with the enforcement of the terms of this Agreement or the collection of any amounts due under this Agreement.

12.7 Titles. The section headings used in this Agreement are for convenience of reference only and shall not affect the meaning of the terms and provisions of this Agreement.

12.8 Construction. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked.

12.9 Interpretation of Certain Terms. Any words herein used in the singular shall denote the plural as the context so requires and, when used herein in the plural, shall denote the singular as the context so requires. Pronouns used herein, whether masculine, feminine, or neuter, shall be interpreted as the context so requires. The word “including” shall mean “including without limitation.” Any reference to any federal, state, or local law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.

12.10 Modification. No modification of this Agreement shall be valid or binding upon the parties or entitled to any enforcement whatsoever unless such modification is reduced to writing and signed and dated by both parties.

12.11 Waiver. The failure to demand strict performance of one (1) or more of the terms, covenants, or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and any party may at any time demand strict and complete performance of said terms, covenants, and conditions.

12.12 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.13 Applicable Law and Jurisdiction. This Agreement shall be construed, interpreted, and governed in accordance with the laws of the State of Delaware, excluding any conflict of law rules (whether of the State of Delaware or any other jurisdiction) which may direct the application of the laws of another jurisdiction, or the United Nations Convention on the International Sale of Goods. The parties hereby consent to the jurisdiction of the courts of the State of Delaware or the United States District Court for the State of Delaware, and agree that such courts shall have exclusive jurisdiction and venue for the purpose of any action or proceeding brought by either of them which relates to or is in connection with this Agreement. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.14 Notices. Except as otherwise provided herein, any notice required or permitted to be given hereunder shall be hand delivered; sent by prepaid certified mail, return receipt requested; sent by reputable overnight courier such as Federal Express; or sent by e-mail or other form of electronic communication, and shall be deemed to have been given when hand delivered, three (3) business days after deposit in the U.S. mail, one (1) business day after timely deposit with an overnight courier, or upon receipt if sent by e-mail or other form of electronic communication, as the case may be. All notices shall be sent or delivered to the respective address specified below, except that either party, upon notice to the other party as provided for herein, may change the address to which further notices shall be sent:

12.15 Electronic Execution of Agreement. This Agreement may be entered into by electronic means. Subscriber may communicate its acceptance of this Agreement by any electronic means which indicates to SD that Subscriber desires to enter into this Agreement and/or obtain the Services and/or Support, including, but not limited to, by e mail; facsimile; clicking on an agreement or consent button, box, or icon on the SD Website designed to solicit acceptance of this Agreement; or by completing an electronic Order Form on the SD Website and submitting it to SD. SD may likewise indicate its consent to this Agreement and may also indicate its consent to this Agreement by providing access to the Services and/or Support to Subscriber following acceptance of this Agreement by Subscriber.

12.16 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online Master Subscription Agreement electronically accepted by Subscriber. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be

asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum, or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Subscriber purchase order or in any other Subscriber order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.