STANDARD TERMS OF SERVICE

SERVICES TERMS

These Services Terms (these “Terms”) govern Customer’s access to and use of the Services. By executing an Order Form that references these Terms, Customer accepts and agrees to all of the terms and conditions hereof. Customer has no right to access or use any Services other than pursuant to and in accordance with these Terms.

1. Definitions. In addition to the capitalized terms defined upon first use in these Terms, the following capitalized terms shall have the meanings set forth below in this Section 1:

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes of this Agreement, a Person shall be deemed to have “control” over another Person if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.

“Authorized User” means any Person who is authorized by Customer to use the Services (or any portion thereof) for the Permitted Purpose.

“Confidential Information” means any information disclosed by a Party to the other Party in connection with this Agreement, whether directly or indirectly, in writing, orally or by drawings or observation of equipment or software, that is marked or otherwise designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure, including the terms of any Order Form (including pricing), business and marketing plans, technology and technical information, product plans and designs, business processes, and information related to finances, costs, suppliers, vendors, customers and employees. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third parties without violation of this Agreement by the receiving Party; (b) information that was known to or in the possession of the receiving Party on a non-confidential basis prior to the disclosure thereof to the receiving Party by the disclosing Party, as evidenced by written records; (c) information that was developed independently by or on behalf of the receiving Party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving Party by a third party without violation of this Agreement by the receiving Party.

“Customer” means the Person entering into this Agreement with Service Provider, as identified in the Order Form.

“Customer Data” means any Confidential Information of Customer or any of its Authorized Users that is input and stored in any Service Provider system pursuant to Customer’s use of the SaaS Services.

“Documentation” means the instructions and user guides for the SaaS Services as made available by Service Provider from time to time.

“Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable Law.

“Law” means any and all statutes, laws, ordinances, regulations, rules, codes and other requirement or rule of law of any federal, state, local or foreign governmental authority.

“Order Form” means an order form or other ordering document executed by the Parties with respect to SaaS Services (but only to the extent pertaining to SaaS Services, if such ordering document also covers products or services other than SaaS Services) that (a) incorporates by reference these Terms, (b) describes the SaaS Services ordered thereunder including the initial Subscription Period applicable thereto and the fees and other charges payable by Customer to Service Provider in respect thereof, and (c) may include additional terms and conditions agreed upon by the Parties with respect to that particular Order Form.

“Party” means Customer or Service Provider and “Parties” means, collectively, both parties to this Agreement.

“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Agreement of the Services solely for the purposes contemplated by the Order Form and subject to all usage limits set forth therein.

“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture or other form of business or legal entity.

“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings.

“SaaS Services” means Service Provider’s generally commercially available hosted software-as-a-service offerings, the specific features and functionality of which are described in the applicable Documentation, to which Customer has purchased a subscription pursuant to an Order Form.

“Service Provider” means CORE Higher Education Group, LLC, a Rhode Island limited liability company.

“Service Provider IP” means all software (including both source code and object code, as applicable), APIs, mobile applications, documentation, templates, designs (including screen and report designs), data, materials, technology and works created, utilized and/or provided by or on behalf of Service Provider in connection with the performance of this Agreement, including the Documentation and all software forming part of or used by Service Provider to deliver the Services, and all Intellectual Property Rights related to any of the foregoing.

“Services” means, individually and collectively, the specific SaaS Services ordered by Customer and to be provided by Service Provider under this Agreement, each as set forth in one or more Order Forms, together with any related services provided by Service Provider, including pursuant to Section 5, the SLA and/or any consulting services (unless provided pursuant to a separate written agreement).

“SLA” means Service Provider’s standard service level and support agreement available at https://corehighered.com/sla and incorporated by reference.

“Subscription Period” means the initial period for which Customer has contracted to subscribe to SaaS Services as specified in the Order Form, along with each subsequent period for which Customer’s subscription is renewed pursuant to Section 11.2 or any different renewal process set forth in the Order Form.

2. Scope of Agreement.

2.1 This Agreement is comprised of (and the term “this Agreement” refers to) the Order Form together with these Terms and any applicable Supplemental Terms. If the Parties enter into more than one Order Form, then each Order Form shall be deemed to form a new and separate agreement between the Parties (and the term “this Agreement” shall be deemed to refer to the particular agreement required by the context, independently of and separately from each other agreement between the Parties) unless the additional Order Form specifically states that it is supplementing and amending an existing Services Order.

2.2 Certain Services offerings may be subject to supplemental terms and conditions specific to such offerings, as specified in the applicable Order Form (“Supplemental Terms”). Any applicable Supplemental Terms are intended to supplement, not replace, these Terms.

2.3 In the event of any conflict, discrepancy or inconsistency between any of the documents forming part of this Agreement that is not expressly resolved in the documents, the terms will control in the following order (1) the Order Form, (2) any Supplemental Terms (but solely with respect to the particular Services offerings to which they apply) and (3) these Terms.

2.4 Subject to Section 5, any changes to the scope of Services under an Order Form shall be made only by written change order or amendment signed by an authorized representative of each Party prior to implementation of such changes.

2.5 The Services may contain or support features designed to integrate or interoperate with software applications, online services or other products and services offered by third parties (collectively, “Third-Party Offerings”). Any acquisition, access or use by or on behalf of Customer or its Authorized Users of Third-Party Offerings, including the availability and performance of any Third-Party Offerings, is solely between Customer (and/or its Authorized Users) and the applicable third-party provider and Service Provider shall have no liability to Customer (or any Authorized User) in connection therewith. Service Provider does not warrant or support Third-Party Offerings or any related integrations, and Service Provider makes no representations or warranties, express or implied, as to the availability, performance, legality or non-infringement of any Third-Party Offerings or related integrations or interoperation.

3. Provision and Use of the Services.

3.1 Service Provider shall provide the Services, including by providing Customer with access to the SaaS Services during the applicable Subscription Period as specified in the relevant Order Form and subject to the terms and conditions set forth in this Agreement.

3.2 As between the Parties, Service Provider is responsible for the deployment, operation, management and hosting of the SaaS Services including the provisioning and maintenance of all server-side hardware, software and telecommunications capacity. Customer is responsible for all hardware, software, connectivity and related infrastructure required for Customer and Authorized Users to access and use the SaaS Services.

3.3 Service Provider shall use commercially reasonable efforts to ensure that the SaaS Services are available for use by Authorized Users in accordance with the SLA and subject to the remedies specified therein.

3.4 Customer is solely responsible for the security and proper creation, use and termination of all Authorized User IDs, passwords and other login credentials used in connection with the SaaS Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons, including by implementing and maintaining policies and procedures designed to detect, prevent and mitigate the risk of password theft or unauthorized access to the SaaS Services. Customer shall immediately inform Service Provider if there is any reason to believe that any login credentials have or are likely to become known to any unauthorized Person, or are being or are likely to be used in an unauthorized way. Service Provider reserves the right (in its sole discretion) to require Customer to change any login credentials or security protocols used by Customer in connection with the SaaS Services, and Customer shall promptly comply with any such requirement. If the Order Form specifies a maximum number of Authorized Users of the SaaS Services, then each Authorized User must be a unique individual and Customer shall be responsible for ensuring that the maximum number is not exceeded. An Authorized User license may be permanently transferred from a former Authorized User (such as an individual whose employment by or student enrollment with Customer terminates) to a replacement Authorized User, but two or more individuals may not share a single Authorized User login.

3.5 Customer is solely responsible for its relationships with all Authorized Users, for their use of the Services, and for ensuring that they comply with all the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by any Authorized User shall be deemed to be a violation by Customer thereof.

3.6 Customer shall cooperate fully with Service Provider in its provision of the Services, including by (a) providing Service Provider, in a timely fashion, with access to such Customer premises, systems, personnel and information and (b) performing all tasks and providing all decisions, in a timely fashion, each as shall be reasonably required for the provision of the Services. Service Provider shall not be liable for any delays caused in whole or in part by (i) any failure or delay on Customer’s part to comply with this Section 3.6 or to otherwise fulfill its obligations with respect to an Order Form, (ii) inaccuracies in information provided by Customer; (iii) Customer-requested changes; (iv) changes in Customer personnel; or (v) other factors beyond the reasonable control of Service Provider (collectively, “Unforeseen Events”). If Service Provider determines that additional work on Service Provider’s part will be required as a result of an Unforeseen Event, Service Provider shall not be required to perform such additional work unless and until the Parties have executed a written change order covering such additional work pursuant to Section 2.4; however, if Service Provider nevertheless performs such additional work, Customer shall pay Service Provider for all such additional work at Service Provider’s then-current rates for the types of services rendered.

3.7 Service Provider reserves the right to determine in its sole discretion which of its personnel shall be assigned to perform the Services, and to replace or reassign such personnel at any time. Service Provider may use Affiliates, subcontractors and other third parties in the performance of the Services, provided that no such use of Affiliates, subcontractors or other third parties shall relieve Service Provider of its obligations under this Agreement.

4. Rights and Limitations of Use.

4.1 Subject to the terms and conditions of this Agreement (including Customer’s payment obligations hereunder), Service Provider authorizes Customer during the applicable Subscription Period (a) to access and use, and permit Authorized Users to access and use, the SaaS Services solely for the Permitted Purpose, and (b) to the extent Service Provider otherwise makes available to Customer or its Authorized Users, by way of download or other form of distribution, any reporting templates, mobile applications, software components, APIs, tools, materials or other Service Provider IP intended for use in connection with the SaaS Services, to store, install, execute and use the same internally within Customer’s organization and in support of the Permitted Purpose, solely in connection with Customer’s and its Authorized Users’ authorized use of the SaaS Services.

4.2 Except for the rights expressly granted under Section 4.1, no other rights in or to any Services or Service Provider IP, express or implied, are granted to Customer. Without limiting the foregoing, except to the extent expressly authorized by this Agreement, Customer may not: (a) transfer to any other Person any of its rights to use any Services or Service Provider IP; (b) sell, resell, license, sublicense, distribute, rent, lease or share any Services or Service Provider IP; (c) permit any Person who is not an Authorized User to use or access any Services or Service Provider IP; (d) use any Services or Service Provider IP other than for the Permitted Purpose; (e) use any Services or Service Provider IP to provide outsourcing, service bureau, hosting, application service provider or online services to third parties; (f) create any derivative works based upon any Service Provider IP; (g) copy any feature, design or graphic in any Services or Service Provider IP; (h) reverse engineer (to the extent such restriction is permitted by Law) any Service Provider IP or attempt to circumvent any security feature or technical limitation of the Services or access or derive the source code or architecture of any Service Provider IP; (i) use or access any Services or Service Provider IP in order to build a competitive solution or to assist someone else to build a competitive solution; (j) load or penetration test the SaaS Services or otherwise use any Services in any way that is, or could reasonably be expected to be, detrimental to Service Provider’s ability to provide services to any other customer; (k) use any Services or Service Provider IP to access the data of any other customer of Service Provider; (l) alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the SaaS Services, the Documentation or any other Service Provider IP; (m) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material including code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, or to store or transmit material in violation of third-party privacy rights; (n) use any Services or Service Provider IP in a manner that violates any applicable Law; or (o) permit any other Person to do any of the foregoing.

5. Support and Maintenance.

5.1 Service Provider will make available to Customer standard maintenance and technical support with respect to the SaaS Services as more fully described in this Section 5 and in the SLA.

5.2 Customer acknowledges that the SaaS Services were not designed or produced to Customer’s individual requirements and that Customer is solely responsible for confirming that the SaaS Services meet such requirements. Customer further acknowledges that the SaaS Services are based on a standardized service platform made available by Service Provider to a variety of customers. Service Provider reserves the right to make changes to the SaaS Services and Customer’s continued use of the SaaS Services following the implementation of any changes will constitute Customer’s acceptance thereof. Service Provider will make available to Customer as part of the SaaS Services the error corrections and improvements that Service Provider makes available to its customers generally as part of their paid subscription to the same services offering, but specifically excluding any new products, offerings, applications or add-ons for which Service Provider charges a separate fee, unless Customer separately purchases a subscription thereto. Customer agrees that its subscription to the SaaS Services is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Service Provider regarding possible future functionality or features.

6. Fees, Expenses and Payment.

6.1 Customer shall pay all fees and charges as specified in each Order Form.

6.2 Except as otherwise set forth in this Agreement, (a) subscription fees are based on the SaaS Services ordered and not actual usage thereof, (b) payment obligations are non-cancelable and amounts paid are non-refundable, and (c) ordered quantities cannot be decreased during the relevant Subscription Period. Unless otherwise specified in an Order Form, all subscription fees for SaaS Services are invoiced annually in advance and Service Provider reserves the right to increase its subscription fees no more frequently than annually, provided no such increase will take effect until the start of the next Subscription Period following Service Provider’s notice or renewal invoice reflecting such fee increase sent to Customer no later than sixty (60) days prior to the scheduled renewal date.

6.3 Unless otherwise specified herein or in the applicable Order Form, Customer shall pay all properly invoiced fees and charges within thirty (30) calendar days of the date of Service Provider’s invoice therefor. Customer is responsible for providing complete and accurate billing and contact information to Service Provider and notifying Service Provider of any changes to such information.

6.4 If any invoiced amount is not received by Service Provider by the due date, then without limiting Service Provider’s rights or remedies, Service Provider may charge Customer interest at the rate of 1.5% per month (or the highest rate allowable by Law, if less) for any past due amounts, from the date payment was due until the date paid (other than with respect to any amount disputed by Customer in good faith where Customer is cooperating diligently to resolve the dispute). Customer shall bear any costs (including attorneys’ fees and costs) incurred by Service Provider in collecting any amounts due hereunder.

6.5 Service Provider fees do not include and Customer shall pay any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes and import duties, assessable by any jurisdiction whatsoever (other than corporate income taxes payable by Service Provider) due as a result of any amounts paid by Customer to Service Provider under this Agreement. Such amounts may, but are not required to be, identified in an Order Form.

6.6 Customer shall not charge any fee to Service Provider related to invoice processing, and shall pay or reimburse Service Provider for any such fee charged by any third party that Customer requires Service Provider to use in connection with processing Service Provider’s invoices to Customer.

7. Customer Data.

7.1 As between the Parties, all Intellectual Property Rights in and to any Customer Data are and shall remain the sole property of Customer and its Authorized Users, as applicable, and Service Provider shall acquire no right of ownership or use with respect thereto, except that Service Provider and its Affiliates and their respective employees, agents and sub-processors shall have the right to reproduce, modify, use, host, transmit and display the same in connection with Service Provider’s provision and support of the Services.

7.2 Service Provider shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. Except as otherwise set forth in this Agreement, Service Provider shall not access or use Customer Data except (a) in connection with providing, supporting and maintaining the Services, including for billing purposes, preventing or addressing service or technical problems, and verifying Customer’s compliance with the terms of this Agreement, (b) as required by Law in accordance with Section 12.2, or (c) as Customer expressly permits in writing.

7.3 Subject only to any express obligations of Service Provider specified herein, Customer is solely responsible for all aspects of Customer Data including its sourcing, inputting, management, accuracy, quality, legality, privacy and results. Without limiting the foregoing, Customer represents, warrants and covenants that (a) it shall provide all applicable notices to “data subjects,” and obtain all required consents, authorizations, rights, and permissions, each as required by applicable Law, for the Processing of Customer Data as contemplated by this Agreement; (b) neither the provision nor Processing of Customer Data in accordance with this Agreement constitutes or creates a covered entity-business associate relationship between Customer and Service Provider subject to the Health Insurance Portability and Accountability Act of 1996 (as amended) and the implementing regulations thereunder; and (c) Customer shall not permit the provision or Processing of any sensitive or special data pursuant to Customer’s use of the SaaS Services that, under applicable Laws, imposes specific data security or data protection obligations on Service Provider in addition to or different from those contemplated by this Agreement or which are not ordinarily provided as part of the SaaS Services.

7.4 If Customer makes use of or enables a Third-Party Offering for use with the SaaS Services, Customer (a) grants all necessary authorizations and permissions required for the relevant exchange of Customer Data between SaaS Services and Third-Party Offerings and (b) assumes all risk associated with or resulting from such exchange of Customer Data and agrees that Service Provider shall not be responsible for any resulting disclosure, modification or loss of Customer Data.

7.5 Service Provider may review, extract, compile, synthesize and analyze data and information related to the performance, operation and use of the SaaS Services (“Performance Data”). By way of example, Performance Data may include information about dates and times Authorized Users access the SaaS Services, IP address or username of Authorized Users who accessed the Services, the portions of the SaaS Services visited, the performance of the SaaS Services, and aggregated, anonymized or de-identified information based on Customer Data. As between the Parties, Service Provider shall own all right, title and interest in and to the Performance Data upon creation and may freely use and otherwise exploit the Performance Data for any lawful business purpose, including for improving the performance, features, security, delivery or capabilities of Service Provider’s products or services.

8. Warranties.

8.1 Each Party represents and warrants to the other Party that (a) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement, and (b) the execution, delivery and performance of this Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable Law, except where such violation, conflict or default would not materially impair such Party’s performance of its obligations or the other Party’s enjoyment of its rights under this Agreement.

8.2 Service Provider further warrants to Customer that the SaaS Services will function substantially in accordance with the applicable Documentation for the duration of the Subscription Period. In the event of any nonconformance with the warranty specified in this Section 8.2, Customer will promptly (and in no event later than sixty (60) days after the non-conforming Service was provided) notify Service Provider of such nonconformance and Service Provider will, following receipt of such notice from Customer, use commercially reasonable efforts to make available to Customer a conforming version of the applicable Service. If Service Provider fails to do so within thirty (30) days, and such nonconformance has the effect of materially diminishing the functionality and value of the Services as a whole, then Customer shall have the right to terminate the relevant Order Form upon notice and recover a refund of unused subscription fees paid by Customer with respect to the then-remaining portion of any prepaid Subscription Period; provided, however, that such termination shall not be permitted if, within such thirty (30) day period, Service Provider has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing, together with any applicable remedies specified in the SLA, set forth the exclusive remedies of Customer, and the sole liability of Service Provider, in the event of any nonconformance with the warranty set forth in this Section 8.2 or otherwise with respect to any errors, service interruptions or other problems with the Services.

8.3 EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION 8, SERVICE PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THE SERVICES OR SERVICE PROVIDER IP. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICE PROVIDER IS PROVIDING THE SERVICES AND SERVICE PROVIDER IP ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SERVICE PROVIDER DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND SERVICE PROVIDER IP OR THEIR PERFORMANCE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR SERVICE PROVIDER IP WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM. IN ADDITION, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR SERVICE PROVIDER IP WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE SERVICES AND ANY SERVICE PROVIDER IP ARE IN ACCORDANCE WITH APPLICABLE LAW.

8.4 NEITHER SERVICE PROVIDER NOR ANY OF THE SERVICES OR SERVICE PROVIDER IP ARE INTENDED TO PROVIDE MEDICAL, LEGAL, TAX, ACCOUNTING OR OTHER PROFESSIONAL ADVICE. The Services and any output resulting from their use are intended only to assist Customer and Authorized Users with administration, tracking and management tasks and are broad in scope. It is the responsibility of Customer and Authorized Users to review and determine the suitability of any output generated from the Services and to consult independent medical, legal, tax, accounting or other professional advice before using any such output.

9. Indemnification.

9.1 Service Provider shall defend (or at its option settle) any claim, demand, action, suit or other judicial proceeding brought or asserted by a third party (each a “Claim”) against Customer alleging that the SaaS Services as provided by Service Provider hereunder infringe any third party’s rights in any copyright, trademark or United States or European Union patent, and Service Provider shall indemnify and hold Customer harmless from and against all damages, costs and expenses associated with the final resolution of any such Claim whether by litigation, arbitration or mediation or settlement agreed to by Service Provider, in each case except to the extent the Claim (a) relates to Customer Data or other content or materials provided by or on behalf of Customer or any Authorized Users, (b) relates to use of the SaaS Services in combination with any software, hardware, network or system not supplied by Service Provider where the Claim would have been avoided in the absence of such combination, (c) relates to the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third parties at the time SaaS Services have been used by Customer and/or (d) is subject to Customer’s indemnification obligations under Section 9.2. In the event of any Claim of infringement or if Service Provider has reason to believe that such a Claim may be brought, Service Provider may at its option and sole expense either (i) obtain the rights necessary to extinguish or avoid the infringement or (ii) make any modifications to the Services that are recommended by Service Provider’s counsel to avoid infringement of third party rights, provided that if any such modification materially diminishes the functionality and value of the Services under any Order Form as a whole, Customer may within ninety (90) days following Service Provider’s implementation of such modification terminate the Order Form concerned by notice to Service Provider and recover a refund of unused subscription fees paid by Customer with respect to the then-remaining portion of any prepaid Subscription Period. This Section 9.1 states Customer’s sole remedy and Service Provider’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third party.

9.2 Customer shall defend (or at its option settle) any Claim against Service Provider, and Customer shall indemnify and hold Service Provider harmless from and against all damages, costs and expenses associated with the final resolution of any such Claim whether by litigation, arbitration or mediation or settlement agreed to by Customer, that relates to (a) Customer Data or any other content or materials provided by or on behalf of Customer or any Authorized Users, (b) Customer’s relationships with Authorized Users including any services provided by Customer to Authorized Users, or (c) the use by Customer or any Authorized Users of the Services or any Service Provider IP in breach of this Agreement or in violation of applicable Law or third party rights.

9.3 As a condition to the obligations of the indemnifying party under either of Sections 9.1 or 2, the indemnified Person shall (a) promptly notify the indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay, (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense (provided that the indemnified Person shall not be entitled to compensation for time spent providing such cooperation). The indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.

10. LIMITATIONS OF LIABILITY.

10.1 EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 12 (CONFIDENTIALITY), OR FROM A BREACH BY CUSTOMER OF SECTION 4 (RIGHTS AND LIMITATIONS OF USE) OR 13 (PROPRIETARY RIGHTS), OR FROM CUSTOMER’S FAILURE TO PAY AMOUNTS DUE UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.

10.2 SERVICE PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER PURSUANT TO THE ORDER FORM TO WHICH THE APPLICABLE CLAIM RELATES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.

10.3 THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.

11. Subscription Period, Renewals, Termination and Suspension.

11.1 Service Provider makes the SaaS Services available on a subscription basis only, and Customer is purchasing a subscription to access and use the SaaS Services upon the terms and conditions set forth in this Agreement, for the Subscription Period specified in the Order Form. Neither Party may terminate any SaaS Services for convenience prior to the end of its Subscription Period.

11.2 Upon expiration of any Subscription Period, Customer’s subscription to the applicable SaaS Services and the term of this Agreement may be renewed for another annual Subscription Period by Service Provider’s issuance and Customer’s acceptance of, and timely payment in full against, Service Provider’s renewal invoice sent no later than thirty (30) days prior to the scheduled renewal date, unless otherwise specified in an applicable Order Form.

11.3 Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party. Notwithstanding the foregoing, Customer shall not be permitted to terminate this Agreement pursuant to this Section 11.3 if, within the applicable 30-day cure period, Service Provider has provided Customer with reasonable assurances that the applicable breach will be remedied within a reasonable period of time (not to exceed 90 days).

11.4 Upon ten (10) days’ notice to Customer, Service Provider may suspend the Services in whole or in part if Customer fails to make when due any payment required under this Agreement. Upon receipt of payment in full of all overdue amounts, provided Customer is not otherwise in breach of this Agreement, Service Provider shall promptly restore the suspended Services. Service Provider may also suspend the Services in whole or in part if Customer otherwise breaches any term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from Service Provider, until such time as the breach is cured. Notwithstanding the foregoing, Service Provider may immediately suspend the Services, with or without prior notice to Customer, in order to avoid or mitigate irreparable harm to Service Provider or any other Person. Any suspension hereunder shall be without limitation of any other right or remedy available to Service Provider.

11.5 Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.

11.6 Upon the termination or expiration of this Agreement or any subscription hereunder for any reason:

(a)          Service Provider will terminate access to the relevant SaaS Services, and all related rights granted by Service Provider pursuant to this Agreement shall immediately and automatically terminate.

(b)          Customer shall pay all amounts that have accrued or are otherwise owed hereunder within ten (10) days following any termination or expiration of this Agreement.

(c)          Upon written request by Customer made within thirty (30) days after the effective date of expiration or termination, Service Provider shall return to Customer or, if return is not feasible, securely destroy all Customer Data stored in the terminated SaaS Services and confirm to Customer in writing that it has complied with such requirement. After such thirty (30)-day period, Service Provider shall have no obligation to maintain or provide any Customer Data related to the terminated SaaS Services.

(d)          If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed in writing, all of the requesting Party’s Confidential Information and other materials of the requesting Party in such other Party’s possession or under its control (other than Customer Data separately addressed in clause (c) above). Notwithstanding the foregoing, each Party shall be entitled to retain any Confidential Information to the extent it has been advised by counsel that such retention is required to comply with applicable Law.

(e)          Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.

12. Confidentiality.

12.1 Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not (a) use such Confidential Information other than for the purposes of this Agreement or (b) disclose any such Confidential Information to any third party except those directors, officers, employees, subcontractors and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information using at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.

12.2 The obligations of the Parties under Section 12.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.

12.3 Any breach of the confidentiality obligations set forth in this Section 12 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at Law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.

12.4 This Section 12 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason. Notwithstanding the foregoing, any Confidential Information that qualifies as trade secret under applicable Law shall remain subject to protection in accordance with such applicable Law notwithstanding the expiration of such five (5) year period.

12.5 In the event that the provisions of this Section 12 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of this Section 12 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this Agreement.

13. Proprietary Rights.

13.1 As between the Parties, all Intellectual Property Rights in and to the Services and Service Provider IP are and shall remain the sole property of Service Provider and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect thereto except for the limited rights specified in Section 4. Without limiting the foregoing, Customer acknowledges that the SaaS Services and the inventions, know-how and methodology embodied therein are proprietary to, and are the valuable trade secrets of, Service Provider and its Affiliates and licensors, as applicable, and contain Confidential Information of Service Provider.

13.2 Customer and/or Authorized Users may from time to time provide Service Provider with suggestions, comments, recommendations and/or feedback regarding the SaaS Services and/or Service Provider’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily and without compensation. Feedback shall not be considered Confidential Information of Customer and Service Provider shall be freely entitled to reproduce, prepare derivative works of, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback (or to refrain therefrom), at its sole discretion, without obligation or liability of any kind to Customer or to any other Person.

14. Force Majeure. If either Party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that Party's reasonable control, such as any act of God, lightning, flood, exceptionally severe weather, fire, explosion, war, terrorism, pandemic, civil disorder, industrial disputes (whether or not involving employees of either Party), acts of local or central government or other competent authorities, problems with telecommunications providers or the Internet, attacks on networks or other cyber infrastructure, issues caused by a Third-Party Offering or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.

15. Publicity. Service Provider may reproduce and display Customer’s name, logo and trademarks on Service Provider’s website and in brochures, social media and other marketing materials for the purpose of identifying Service Provider’s relationship with Customer. Except as provided in the preceding sentence, all media releases, public announcements and public disclosures by either Party relating to this Agreement or its subject matter shall require the written agreement of the Parties.

16. Employee Non-Solicitation. Without Service Provider’s prior written consent, Customer will not during the term of this agreement and for a period of twelve (12) months thereafter, directly or indirectly, solicit for employment or employ any person who is or has been an officer, director or employee of Service Provider or any of its Affiliates at any time during the term of this Agreement; provided, however, that the foregoing shall not prohibit: (a) any general advertisements not targeted Service Provider, any of its Affiliates or any of their respective personnel, (b) any solicitation of individuals who have terminated their employment with Service Provider and its Affiliates and have not been employed for a period of at least one (1) year prior to any such solicitation, or (c) the hiring of any individuals as a result of any of the aforementioned solicitations.

17. Certain Regulatory Matters. The Services and associated technical data are subject to U.S. export control Laws and may be subject to export or import Laws in other countries. Service Provider authorizes use of the Services and associated technical data only with third party software and hardware obtained and used in compliance with applicable export control Laws. Each Party shall comply with applicable export control Laws in providing and using the Services. Without limiting the foregoing, Customer represents, warrants and covenants: (a) that it is not named on the U.S. Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons or on any other U.S. or other applicable government lists of prohibited, restricted or sanctioned parties; (b) that it will not and does not intend to use or permit anyone else to use any of the Services for or in connection with the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles; and (c) that it will not permit Authorized Users to access or use the Services (i) if they are located in any country or territory subject to territorial embargoes of the United States, United Kingdom, European Union, Australia or Canada, including Cuba, Iran, North Korea, Syria, or the occupied Crimea, Donetsk and Luhansk regions, (ii) if they are listed on any U.S. or other applicable government list of prohibited, restricted or sanctioned parties; or (iii) otherwise in violation of any U.S. or otherwise applicable export Law.

18. Government Users. The provision by Service Provider of Services or Service Provider IP for use by or on behalf of any unit or agency of the United States Government (the “Government”) are subject to the following: The Services and related Service Provider IP constitute “commercial computer software” and/or “commercial computer software documentation,” respectively, and the Government’s rights with respect to the same are, in the case of civilian agency use, and if for the Department of Defense use, limited by the terms of this Agreement, pursuant to FAR 12.212 and/or DFARS §227.7202-1 through §227.7202-4 as applicable. The use of any Services or Service Provider IP by the Government constitutes acknowledgment by the Government of Service Provider’s proprietary rights therein and thereto. If the Government has a need for rights not granted under these Terms, it must negotiate with Service Provider to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

19. General Provisions.

19.1 Service Provider shall have the right to modify any of the terms or conditions of this Agreement from time to time, provided that no such modification shall take effect until the start of the next Subscription Period following Service Provider’s notice or renewal invoice advising Customer of such modification, sent to Customer no later than ninety (90) days prior to the scheduled renewal date. Customer’s renewal of this Agreement after its receipt of such notice or invoice shall constitute Customer’s acceptance of such modification. Except as set forth in this Section 19.1, No waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.

19.2 This Agreement, all related documents and all matters arising out of or relating to this Agreement, whether in contract, tort or statue, shall be governed by, and construed in accordance with, the laws of the State of Delaware, including Del. Code Ann. Tit. 6 Section 2708, without giving effect to the conflict of laws provisions thereof to the extent such principles would require or permit the application of the laws of any other jurisdiction. Any action arising from or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction in the State of Delaware, and the Parties irrevocably and unconditionally consent and submit to such exclusive jurisdiction, forum and venue and agree not to assert any defenses of forum non conveniens or any other defenses in opposition to such exclusive jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION. Nothing contained in this Section 19.2 shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.

19.3 Neither Party shall assign or otherwise transfer this Agreement or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of Law, without the prior written consent of the other Party in each case. Notwithstanding the foregoing, Service Provider may freely assign or otherwise transfer this Agreement without Customer’s consent to any Affiliate or in connection with a merger, corporate reorganization or sale of all or substantially all of Service Provider’s business or assets to which this Agreement relates. Any purported assignment or transfer in contravention of this Section 19.3 shall be null and void ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.

19.4 Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to Service Provider or to Customer at the respective address set forth in the Order Form or as changed from time to time by notice. Such notices shall be effective when received.

19.5 If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).

19.6 The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this Agreement shall each be deemed to be followed by the words “without limitation.”

19.7 This Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Agreement.

19.8 This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. Without limiting the generality of the foregoing, upon entering into an Order Form for the renewal of any Services previously obtained by Customer under the terms of any other agreement or instrument between the Parties, the Parties agree that the terms of this Agreement shall replace and supersede the terms of such other agreement or instrument in their entirety effective upon such renewal. Without limiting the foregoing, terms and conditions on any Customer purchase order are expressly rejected and superseded by the terms and conditions set forth in this Agreement. Neither the course of conduct between Parties nor trade usage shall modify or alter this Agreement.

19.9 Any Order Form may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Any Order Form may be executed and delivered by facsimile or other electronic image transmission including PDF.