FLASHTRACT MASTER SERVICE AGREEMENT 

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION  AND USE OF FLASHTRACT SERVICES. CAPITALIZED TERMS HAVE THE  DEFINITIONS SET FORTH HEREIN. 

IF CUSTOMER REGISTERS FOR A NO CHARGE TRIAL OF FLASHTRACT SERVICES,  THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT NO  CHARGE TRIAL. 

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING  ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS  AGREEMENT, OR (3) USING NO CHARGE TRIAL, CUSTOMER AGREES TO THE TERMS  OF THIS AGREEMENT (UNLESS CUSTOMER AND FLASHTRACT HAVE ENTERED A  WRITTEN GOVERNING MASTER SERVICE AGREEMENT, IN WHICH CASE SUCH  WRITTEN AGREEMENT WILL GOVERN). IF THE INDIVIDUAL ACCEPTING THIS  AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY,  SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH  ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE  THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF  THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH  AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH  INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE  SERVICES. 

Flashtract’s direct competitors are prohibited from accessing the Services, except with Flashtract’s  prior written consent. In addition, the Services may not be accessed for purposes of monitoring  their availability, performance or functionality, or for any other benchmarking or competitive  purposes. 

Flashtract may change the terms of this Agreement from time to time effective upon notice to  Customer. By continuing to use any of the Services after we make such changes and notify  Customer of such changes, Customer accepts the Agreement, as modified. 

1. DEFINITIONS 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under  common control with the subject entity.

“Control,” for purposes of this definition, means direct or  indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Agreement” means this Master Subscription Agreement. 

“Authorized Users” means Customer’s employees, consultants, clients, contractors, agents, and  other third parties which Customer transacts business (i) who are authorized by Customer to access  and use the Services under the rights granted to Customer pursuant to this Agreement, (ii) for  whom access to the Services has been purchased hereunder, and (iii) for whom Customer has  supplied a user identification and password (for Services utilizing authentication).

 

“Commercially Reasonable Efforts” shall not require Flashtract to engage in conduct that would  have a materially adverse effect on the Flashtract, take any action that would cause Flashtract to  incur costs or suffer any other detriment that is out of reasonable proportion to its benefit under  the Agreement, take any action that would subject it to liabilities, disregard its own business  interests, take any illegal actions or take any action that would harm its existence or solvency. 

“Content” means information obtained by Flashtract from publicly available sources or its third party content providers and made available to Customer through the Services or pursuant to an  Order Form, as more fully described in the Documentation. 

“Customer” means in the case of an individual accepting this Agreement on his or her own behalf,  such individual, or in the case of an individual accepting this Agreement on behalf of a company  or other legal entity, the company or other legal entity for which such individual is accepting this  Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which  have entered into Order Forms. 

“Customer Data” means electronic data and information submitted by or for Customer to the  Services, excluding Content and Non-Flashtract Applications. 

“Documentation” means the Flashtract Security & Privacy Policy, Order Form, Sales Proposal,  and any usage guides and policies related to the Services that may be applicable, each of which  may be updated from time to time and accessible by contacting Flashtract requesting this  information. 

“Flashtract” means the Flashtract, Inc., a Delaware corporation. 

“Force Majeure Event” any unavailability of the Services caused by circumstances beyond  Flashtract’s reasonable control, including, an act of God, act of government, flood, fire,  earthquake, civil unrest, act of terror or war, passage of law or any action taken by a governmental  or public authority (including imposing an embargo or blockade, export/import restriction),  governmental shutdown (complete or partial), strike or other labor problem (other than one  involving Flashtract employees), Internet service provider failure, outage or delay, Non-Flashtract  Application, or denial of service attack 

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including,  for example, viruses, worms, time bombs and Trojan horses. 

“Non-Flashtract Application” means a web-based, cloud-based, mobile, offline or other software  application functionality provided by Customer or a third party that interoperates with a Service  provided by Flashtract. Non-Flashtract Applications, other than those obtained or provided by  Customer, are identifiable as such. 

“Order Form” means a statement of work, ordering document or online order specifying the  Services to be provided hereunder that is entered into between Customer and Flashtract or any of  their Affiliates, including any addenda and supplements thereto. By entering into an Order Form  hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original  party hereto.

 

“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an  Order Form or online purchasing portal, as distinguished from those provided pursuant to a no  charge trial. 

“Services” means the products and services that are ordered by Customer under an Order Form or  online purchasing portal or provided to Customer at no charge (as applicable) or under a no charge  trial, and made available online by Flashtract, including associated Flashtract offline or mobile  components, as described in the Documentation. “Services” exclude Content and Non-Flashtract  Applications. 

2. FLASHTRACT RESPONSIBILITIES 

2.1 Provision of Purchased Services. Subject to and conditioned on Customer’s  compliance with the terms and conditions of this Agreement, Flashtract will (a) make the Services  and Content available to Customer pursuant to the terms and conditions of this Agreement, and  the applicable Order Form(s) and Documentation, (b) provide Flashtract support, if applicable, for  the Purchased Services to Customer, (c) use Commercially Reasonable Efforts to make the  Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of  which Flashtract shall give advance electronic or telephonic notice), and (ii) any unavailability  caused by a Force Majeure Event, and (d) provide the Services in accordance with laws and  government regulations applicable to Flashtract’s provision of its Services to its customers  generally (i.e., without regard for Customer’s particular use of the Services), and subject to  Customer’s use of the Services in accordance with this Agreement, the Documentation and the  applicable Order Form(s). 

2.2 Protection of Customer Data. Flashtract will maintain reasonable protection of  the security, confidentiality and integrity of Customer Data as stated in Flashtract’s Security &  Privacy Policy. 

2.3 Flashtract Personnel. Flashtract will be responsible for the performance of its  personnel (including its employees and contractors) and their compliance with Flashtract’s  obligations under this Agreement, except as otherwise specified in this Agreement. 

2.4 No Charge Trial. If Customer registers on Flashtract’s or an Affiliate’s website  for a no charge trial, Flashtract will make the applicable Service(s) available to Customer on a trial  basis at no charge until the earlier of (a) the end of the no charge trial period for which Customer  registered to use the applicable Service(s), or (b) the start date of any Purchased Service  subscriptions ordered by Customer for such Service(s), or (c) termination by Flashtract in its sole  discretion.  

ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS  MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S NO  CHARGE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A  SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL,  PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA,  BEFORE THE END OF THE TRIAL PERIOD.

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE  REMEDIES AND DISCLAIMERS” SECTIONS, DURING THE NO CHARGE TRIAL THE  SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND FLASHTRACT  SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE  WITH RESPECT TO THE SERVICES FOR THE NO CHARGE TRIAL PERIOD UNLESS  SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW  IN WHICH CASE FLASHTRACT’S LIABILITY WITH RESPECT TO THE SERVICES  PROVIDED DURING THE NO CHARGE TRIAL SHALL NOT EXCEED $1,000.00.  WITHOUT LIMITING THE FOREGOING, FLASHTRACT AND ITS AFFILIATES AND ITS  LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A)  CUSTOMER’S USE OF THE SERVICES DURING THE NO CHARGE TRIAL PERIOD WILL  MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES  DURING THE NO CHARGE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY,  SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE NO  CHARGE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO  THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER  SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO FLASHTRACT AND ITS  AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE  SERVICES DURING THE NO CHARGE TRIAL PERIOD, ANY BREACH BY CUSTOMER  OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS  HEREUNDER. 

CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION  DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND  FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE. 

3. USE OF SERVICES AND CONTENT 

3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or  Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for  the Initial Term stated in the applicable Order Form or in the applicable online purchasing portal and are subject to automatic renewal unless notice of termination is provided in accordance with  Section 11.2, (b) subscriptions for Purchased Services may be added during the Initial Term or  Renewal Term of a subscription at the same pricing as the underlying subscription pricing, prorated  for the portion of that subscription term remaining at the time the subscriptions are added, and (c)  any added subscriptions will terminate on the same date as the underlying subscriptions. Customer  agrees that its purchases are not contingent on the delivery of any future functionality or features,  or dependent on any oral or written public comments made by Flashtract regarding future  functionality or features. 

3.2 Usage Limits. Services and Content are subject to usage limits specified in Order  Forms and Documentation. If Customer exceeds a contractual usage limit, Flashtract may work  with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If,  notwithstanding Flashtract’s efforts, Customer is unable or unwilling to abide by a contractual  usage limit, Customer will execute an Order Form for additional quantities of the applicable  Services or Content promptly upon Flashtract’s request, and/or pay any invoice for excess usage  in accordance with the “Invoicing and Payment” section below.

3.3 Customer Responsibilities. Customer shall (a) be responsible for Authorized  Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for  the accuracy, quality and legality of Customer Data, the means by which Customer acquired  Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any  Non-Flashtract Applications with which Customer uses Services or Content, (c) use Commercially  Reasonable Efforts to prevent unauthorized access to or use of Services and Content, and notify  Flashtract promptly of any such unauthorized access or use, (d) use Services and Content only in  accordance with this Agreement, Documentation, Order Forms and applicable laws and  government regulations, (e) comply with terms of service of any Non-Flashtract Applications with  which Customer uses Services or Content. Any use of the Services in breach of the foregoing by  Customer or Authorized Users that in Flashtract’s judgment threatens the security, integrity or  availability of Flashtract’s services, may result in Flashtract’s immediate suspension of the  Services; provided, however, Flashtract will use Commercially Reasonable Efforts under the  circumstances to provide Customer with notice and an opportunity to remedy such violation or  threat prior to any such suspension, and (f) in the event Customer becomes aware of any actual or  threatened activity prohibited by Section 3.4, immediately take all reasonable and lawful measures  within its control that is necessary to stop the activity or threatened activity and to mitigate its  effects and notify Flashtract of any such actual or threatened activity. 

3.4 Usage Restrictions. Customer shall not (a) make any Service or Content available  to anyone other than Customer or Authorized Users, or use any Service or Content for the benefit  of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form  or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease  any Service or Content, or include any Service or Content in a service bureau or outsourcing  offering, (c) use a Service or Non-Flashtract 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, (d) use a Service or Non-Flashtract Application to store or transmit Malicious  Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data  contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related  systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a  way that circumvents a contractual usage limit, or use any Services to access or use any of  Flashtract intellectual property except as permitted under this Agreement, an Order Form, or the  Documentation, (h) modify, copy, or create derivative works based on a Service or any part,  feature, function or user interface thereof, (i) copy Content except as permitted herein or in an  Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or  as permitted in the Documentation, (k) except to the extent permitted by applicable law,  disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a  competitive product or service, (2) build a product or service using similar ideas, features,  functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the  Service, or (4) determine whether the Services are within the scope of any patent. 

3.5 Removal of Content and Non-Flashtract Applications. If Customer receives  notice that Content or a Non-Flashtract Application must be removed, modified and/or disabled to  avoid violating applicable law, third-party rights, Customer will promptly do so. If Customer does  not take required action in accordance with the above, or if in Flashtract’s judgment continued  violation is likely to reoccur, Flashtract may disable the applicable Content, Service and/or Non-Flashtract Application. If requested by Flashtract, Customer shall confirm such deletion and  discontinuance of use in writing and Flashtract shall be authorized to provide a copy of such  confirmation to any such third-party claimant or governmental authority, as applicable. In addition,  if Flashtract is required by any third-party rights holder to remove Content, or receives information  that Content provided to Customer may violate applicable law or third-party rights, Flashtract may  discontinue Customer’s access to Content through the Services. 

4. NON-FLASHTRACT PRODUCTS AND SERVICES 

4.1 Non-Flashtract Products and Services. Flashtract or third parties may make  available third-party products or services, including, for example, Non-Flashtract Applications and  implementation and other consulting services. Any acquisition by Customer of such products or  services, and any exchange of data between Customer and any Non-Flashtract provider, product  or service is solely between Customer and the applicable Non-Flashtract provider. Flashtract does  not warrant or support Non-Flashtract Applications or other Non-Flashtract products or services,  whether or not they are designated by Flashtract as “certified” or otherwise, unless expressly  provided otherwise in an Order Form. Flashtract is not responsible for any disclosure, modification  or deletion of Customer Data resulting from access by such Non-Flashtract Application or its  provider. 

4.2 Integration with Non-Flashtract Applications. The Services may contain  features designed to interoperate with Non-Flashtract Applications. Flashtract cannot guarantee  the continued availability of such Service features, and may cease providing them without entitling  Customer to any refund, credit, or other compensation, if for example and without limitation, the  provider of a Non-Flashtract Application ceases to make the Non-Flashtract Application available  for interoperation with the corresponding Service features in a manner acceptable to Flashtract. 

5. FEES AND PAYMENT 

5.1 Fees. Customer will pay all fees specified in Order Forms in accordance with this  Section 5. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services  and Content subscriptions purchased and not actual usage, (ii) payment obligations are non cancelable and fees paid are non-refundable, (iii) quantities purchased cannot be decreased during the relevant subscription term, and (iv) all fees are payable in U.S. Dollars. 

5.2 Invoicing and Payment. Customer will provide Flashtract with valid and updated  credit card information, or with a valid purchase order or alternative document reasonably  acceptable to Flashtract. If Customer provides credit card information to Flashtract, Customer  authorizes Flashtract to charge such credit card for all Purchased Services listed in the Order Form  for the Initial Term and any Renewal Term of the subscription as set forth in Section 11.2. Such  charges shall be made in advance, either annually or in accordance with any different billing  frequency stated in the applicable Order Form. If the Order Form specifies that payment will be  by a method other than a credit card, Flashtract will invoice Customer in advance and otherwise  in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced  fees are due net 30 days from the invoice date to the address or account specified in the Order  Form or such other address or account as Flashtract may specify in writing from time to time. Customer is responsible for providing complete and accurate billing and contact information to  Flashtract and notifying Flashtract of any changes to such information. 

5.3 Overdue Charges. If any invoiced amount is not received by Flashtract by the due  date, then without limiting Flashtract’s rights or remedies, (a) those charges may accrue late  interest at the rate of 1.5% of the outstanding balance per month, plus a minimum charge of $100,  or the maximum rate permitted by law, whichever is lower, and/or (b) Flashtract may condition  future subscription renewals and Order Forms on payment terms shorter than those specified in  the “Invoicing and Payment” section below. 

5.4 Suspension of Service and Acceleration. If any charge owing by Customer under  this or any other agreement for Services is 30 days or more overdue, (or 10 or more days overdue  in the case of amounts Customer has authorized Flashtract to charge to Customer’s credit card),  Flashtract may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee  obligations under such agreements so that all such obligations become immediately due and  payable, and suspend Services until such amounts are paid in full, provided that, other than for  customers paying by credit card or direct debit whose payment has been declined, Flashtract will  give Customer at least 10 days’ prior notice that its account is overdue before suspending Services  to Customer. 

5.5 Payment Disputes. Flashtract will not exercise its rights under Section 5.3 or  Section 5.4 if Customer is disputing the applicable charges reasonably and in good faith and is  cooperating diligently to resolve the dispute. 

5.6 Taxes. Flashtract’s fees do not include any taxes, levies, duties or similar  governmental assessments of any nature, including, for example, value-added, sales, use or  withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is  responsible for paying all Taxes associated with its purchases hereunder. If Flashtract has the legal  obligation to pay or collect Taxes for which Customer is responsible under this section, Flashtract  will invoice Customer and Customer will pay that amount unless Customer provides Flashtract  with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity,  Flashtract is solely responsible for taxes assessable against it based on its income, property and  employees. 

6. PROPRIETARY RIGHTS AND LICENSES 

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder,  Flashtract, its Affiliates, its licensors and Content Providers reserve all of their right, title and  interest in and to the Services and Content, including all of their related intellectual property rights.  No rights are granted to Customer hereunder other than as expressly set forth herein. 

6.2 Access to and Use of Content. Customer has the right to access and use applicable  Content subject to the terms of applicable Order Forms, this Agreement and the Documentation. 

6.3 License by Customer to Flashtract. Customer grants Flashtract, its Affiliates and  applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display  any Non-Flashtract Applications and program code created by or for Customer using a Service or  for use by Customer with the Services, and Customer Data, each as appropriate for Flashtract to provide and ensure proper operation of, the Services and associated systems in accordance with  this Agreement. If Customer chooses to use a Non- Flashtract Application with a Service,  Customer grants Flashtract permission to allow the Non-Flashtract Application and its provider to  access Customer Data and information about Customer’s usage of the Non-Flashtract Application  as appropriate for the interoperation of that Non-Flashtract Application with the Service. Subject  to the limited licenses granted herein, Flashtract acquires no right, title or interest from Customer  or its licensors under this Agreement in or to any Customer Data, Non-Flashtract Application or  such program code. 

6.4 License by Customer to Use Feedback. Customer grants to Flashtract and its  Affiliates a worldwide, perpetual, irrevocable, royalty-free, freely assignable license to use and  incorporate into its services any suggestion, enhancement request, recommendation, correction or  other feedback provided by Customer or Authorized Users relating to the operation of Flashtract’s  or its Affiliates’ services. 

7. CONFIDENTIALITY 

7.1 Definition of Confidential Information. “Confidential Information” means all  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 Customer includes Customer Data; Confidential  Information of Flashtract includes the Services and Content, and the terms and conditions of this  Agreement and all Order Forms (including pricing). Confidential Information of each party  includes, financial information, contracts and other business-related documents, technology and  technical information, and business processes disclosed by such party. However, Confidential  Information does 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. For the avoidance  of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to  Confidential Information exchanged between the parties in connection with the evaluation of  additional Flashtract services. 

7.2 Protection of Confidential Information. As between the parties, each party  retains all ownership rights in and to its Confidential Information. The Receiving Party will use  the same degree of care that it uses to protect the confidentiality of its own confidential information  of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the  Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise  authorized by the Disclosing Party in writing, limit access to Confidential Information of the  Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access  for purposes consistent with this Agreement and who have signed confidentiality agreements with  the Receiving Party containing protections not materially less protective of the Confidential  Information than those herein. Neither party will disclose the terms of this Agreement or any Order  Form to any third party other than its Affiliates, legal counsel and accountants without the other  party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or  accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing,  Flashtract may disclose the terms of this Agreement and any applicable Order Form to a  subcontractor or Non-Flashtract Application Provider to the extent necessary to perform  Flashtract’s obligations under this Agreement, under terms of confidentiality materially as  protective as set forth herein. 

7.3 Compelled Disclosure. The Receiving Party may disclose Confidential  Information of the Disclosing Party to the extent compelled by law to do so, provided the  Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent  legally permitted) 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  that Confidential Information. 

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND  DISCLAIMERS 

8.1 Representations. Each party represents that it has validly entered into this  Agreement and has the legal power to do so. 

8.2 Flashtract Warranties. Flashtract warrants that during an applicable subscription  term (a) this Agreement, the Order Forms and the Documentation will accurately describe the  applicable administrative, physical, and technical safeguards for protection of the security,  confidentiality and integrity of Customer Data, (b) Flashtract will not materially decrease the  overall security of the Services, (c) the Services will perform materially in accordance with the  applicable Documentation, and (d) subject to the “Integration with Non-Flashtract Applications”  section above, Flashtract will not materially decrease the overall functionality of the Services. For  any breach of a warranty above, Customer’s exclusive remedies are those described in the  “Termination” and “Refund or Payment upon Termination” sections below. 

8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER  PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,  STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL  IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  EXCEPT AS EXPRESSLY SETFORTH HEREIN, CONTENT AND SERVICES ARE  PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY  WHATSOEVER. 

9. INDEMNIFICATION 

9.1 Indemnification by Flashtract. Flashtract shall indemnify, defend, and hold  harmless Customer (“Customer Indemnitee) from and against any and all losses incurred by Customer Indemnitee resulting from any action by a third party (other than an Affiliate of  Customer Indemnitee) that Customer’s use of the Services (excluding Customer Data and Non Flashtract Applications) in accordance with this Agreement infringes or misappropriates such third  party’s U.S. intellectual property rights. The foregoing obligation does not apply to the extent that  the alleged infringement arises from: (a) Non-Flashtract Applications or Customer Data; (b) access  to or use of the Services in combination with any hardware, system, software, network, or other  materials or service not provided by Flashtract or specified for Customer’s use in the  Documentation; (c) modification of the Services; (d) failure to timely implement any  modifications, upgrades, replacements, or enhancements made available to Customer by or on  behalf of Flashtract; or (e) act, omission, or other matter described in Section 9.2, whether or not  the same results in any action against or losses by any Customer Indemnitee. 

9.2 Indemnification by Customer. Customer shall indemnify, defend, and hold  harmless Provider and its Affiliates, and each of its and their respective officers, directors,  employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any  and all losses incurred by such Provider Indemnitee resulting from any action by a third party  (other than an Affiliate of a Provider Indemnitee) arising out of or resulting from, or are alleged to  arise out of or result from: (a) Customer Data, including any processing of Customer Data by or  on behalf of Flashtract in accordance with this Agreement; (b) any other materials or information  (including any documents, data, specifications, software, content, or technology) provided by or  on behalf of Customer or any Authorized User, including Flashtract’s compliance with any  specifications or directions provided by or on behalf of Customer or any Authorized User to the  extent prepared without any material contribution by Flashtract; (c) allegation of facts that, if true,  would constitute Customer’s breach of any of its representations, warranties, covenants, or  obligations under this Agreement; or (d) any criminal, negligence or more culpable act or omission  (including recklessness or willful misconduct) by Customer, any Authorized User, or any third  party on behalf of Customer or any Authorized User, in connection with this Agreement. 

9.3 Exclusive Remedy. This Section 9 shall be the indemnifying party’s sole liability  to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim  described in this Section 9. 

10. LIMITATION OF LIABILITY 

10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY  OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR  RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER  AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE  LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF  WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY  WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE  THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’  PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. 

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL  EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR  RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS  INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT  OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR  ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR  IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL  PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT  PROHIBITED BY LAW. 

11. TERM AND TERMINATION 

11.1 Term of Agreement. This Agreement commences on the date Customer first  accepts it and continues until all subscriptions hereunder have expired or have been terminated as  outlined below. 

11.2 Term of Purchased Subscriptions. The initial term of each subscription shall be  as specified in the applicable Order Form (the “Initial Term”). Except as otherwise specified in an  Order Form, subscriptions will automatically renew for additional periods equal to the expiring  subscription term or one year (whichever is shorter) (the “Renewal Term”), unless either party  gives the other written notice of non-renewal at least 30 days before the end of the then-current subscription term. The per-unit pricing during any Renewal Term will increase by up to 7% above  the applicable pricing in the prior term, unless Flashtract provides Customer notice of different  pricing at least 60 days prior to the applicable Renewal Term. Except as expressly provided in the  applicable Order Form, renewal of promotional or one-time priced subscriptions will be at  Flashtract’s applicable list price in effect at the time of the applicable renewal. Notwithstanding  anything to the contrary, any renewal in which subscription volume for any Services has decreased  from the prior term will result in Flashtract and Customer re-pricing the Services, in good faith, prior to the renewal without regard to the prior term’s per-unit pricing. 

11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days  written notice to the other party of a material breach of this Agreement or the Documents  incorporated herein if such breach remains uncured at the expiration of such period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to  insolvency, receivership, liquidation or assignment for the benefit of creditors, (iii) Customer or  any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or  unlawful activities relating to or in connection with any of the Services, or (iv) if Customer is  acquired by, acquires a substantial interest in, sells substantially all of its assets to, or undergoes a  change of control in favor of, a direct competitor of Flashtract. 

11.4 Refund or Payment upon Termination. If this Agreement is terminated by  Customer in accordance with Section 11.3, Flashtract will refund Customer any prepaid fees  covering the remainder of the term of all Order Forms after the effective date of termination. If  this Agreement is terminated by Flashtract in accordance with Section 11.3, Customer will pay  any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by  applicable law. In no event will termination relieve Customer of its obligation to pay any fees  payable to Flashtract for the period prior to the effective date of termination.

11.5 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights  and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,”  “Refund or Payment upon Termination,” “Removal of Content and Non-Flashtract Applications,”  “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this  Agreement, and the section titled “Protection of Customer Data” will survive any termination or  expiration of this Agreement for so long as Flashtract retains possession of Customer Data. 

12. GENERAL PROVISIONS 

12.1 Export Compliance. The Services, Content, other Flashtract technology, and  derivatives thereof may be subject to export laws and regulations of the United States and other  jurisdictions. Flashtract and Customer each represents that it is not named on any U.S. government  denied-party list. Customer will not permit any Authorized User to access or use any Service or  Content in a U.S.-embargoed country or region (currently Iran, Cuba, North Korea, Sudan, Syria  or Crimea) or in violation of any U.S. export law or regulation. 

12.2 Anti-Corruption. Neither party has received or been offered any illegal or  improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other  party in connection with this Agreement. Reasonable gifts and entertainment provided in the  ordinary course of business do not violate the above restriction. 

12.3 Entire Agreement and Order of Precedence. This Agreement is the entire  agreement between Flashtract and Customer regarding Customer’s use of Services and Content  and supersedes all prior and contemporaneous agreements, proposals or representations, written  or oral, concerning its subject matter. The parties agree that any term or condition stated in a  Customer purchase order or in any other Customer order documentation (excluding Order Forms)  is void. In the event of any conflict or inconsistency among the following documents, the order of  precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the  Documentation. Titles and headings of sections of this Agreement are for convenience only and  shall not affect the construction of any provision of this Agreement. 

12.4 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. Each party will be solely responsible for payment of all  compensation owed to its employees, as well as all employment-related taxes. 

12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this  Agreement. 

12.6 Waiver. No failure or delay by either party in exercising any right under this  Agreement will constitute a waiver of that right. 

12.7 Severability. If any provision of this Agreement is held by a court of competent  jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining  provisions of this Agreement will remain in effect. 

12.8 Assignment. Customer shall not assign or otherwise transfer any of its rights or  obligations hereunder, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise,  without Flashtract’s prior written consent, which consent shall not be unreasonably withheld;  provided, however, Customer and Flashtract may assign this Agreement in its entirety (including  all Order Forms), to its Affiliate or in connection with a merger, acquisition, corporate  reorganization, or sale of all or substantially all of its assets without the other party’s prior written  consent. This Agreement (including all Order Forms) is freely assignable by Flashtract. Subject  to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective  successors and permitted assigns and no assignment, delegation or transfer will relieve Customer  of any of its obligations or performances under this Agreement. 

12.9 Notices. Except as otherwise expressly set forth in this Agreement, any notice,  request, consent, claim, demand, waiver, or other communications under this Agreement have  legal effect only if in writing and addressed to the following (or to such other address or such other  person that Flashtract may designate from time to time): 

Flashtract, Inc. 

75 14th Street NE 

Suite 3050

Atlanta, GA 30309

Attn: Chief Executive Officer 

12.10 Manner of Giving Notice. Except as otherwise specified in this Agreement, all  notices related to this Agreement will be in writing and will be effective upon (a) hand delivery, with signed confirmation of receipt, (b) the second business day after mailing by certified or  registered mail, return receipt requested, postage prepaid, or (c), except for notices of termination  or an indemnifiable claim (collectively, “Legal Notices”), which shall clearly be identifiable as  Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed  to the relevant billing contact designated by Customer. All other notices to Customer will be  addressed to the relevant Services system administrator designated by Customer. 

12.11 Governing Law; Venue. This Agreement is governed by and construed in  accordance with the internal laws of the State of Alabama without giving effect to any choice or  conflict of law provision or rule that would require or permit the application of the laws of any  jurisdiction other than those of the State of Alabama. Any legal suit, action, or proceeding arising  out of or related to this Agreement will be instituted exclusively in the federal courts of the United  States or the courts of the State of Alabama in each case located in the city of Auburn and County  of Lee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such  suit, action, or proceeding. 

12.12 Amendment and Modification; Waiver. Flashtract may amend the terms and  conditions of this Agreement at any time by reasonable notice to Customer which amended terms  and conditions shall be binding upon Customer upon the date of commencement for the next  Renewal Term.