LICENSING AGREEMENT

2.1. “Service” means, collectively, Licensor’s EPR and SaaS (software as a service) products, maintenance updates, online documentation, and technical support materials. The Service is provided to Licensee on the basis of a non-exclusive license only, and subject to the subscription terms set forth in the applicable Sales Order. No perpetual license is granted to Licensee when using Service.

2.2. “Sales Order” means any form of agreement, including without limitation a written contract, proposal, estimate, quote, renewal notification, or purchase order, pursuant to which Licensor provides Licensee with a subscription to the Service. For Licensee to obtain a valid subscription, the corresponding Sales Order must set forth a defined number of unique Users and a defined period of time in which the subscription will be in effect.

2.3. “User” or “Users” means individuals who are authorized by Licensee to use the Service, and who have been supplied unique user identifications and passwords.

2.4. “Licensee Data” means all electronic data or information submitted to and stored in the Service by Users.

4.1. Alterations to User Accounts. If the Licensee chooses to deactivate a User account, create a new account for a new User, or re-activate an existing account, Licensee may do so as long as Licensee does not exceed the total number of authorized Users.

4.2. Unauthorized Access. Licensee will use commercially reasonable efforts to prevent unauthorized access to or use of the Service and will promptly notify Licensor of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.

4.3. Audit of Authorized Users.  Licensee will maintain reasonable business practices and records necessary to ensure that the number of Users is in compliance with this LA and any applicable Sales Orders, and Licensor at its sole discretion reserves the right to request Licensee records to verify such compliance. The Licensee will notify Licensor if any additional Users will be added to use the Service. Licensee must obtain additional Sales Order(s), or a signed written modification to existing Sales Order(s), in order to increase the total number of authorized Users. If Licensor determines that Licensee has more Users than authorized, the fees for additional Users become immediately due.

6.1. Training. Licensee shall ensure that one or more designated Users have been trained and or certified in the use of Service. Such training should be provided by either Licensor or Licensor-certified trainers. If Licensee uses the service without at least one properly trained User, Licensor reserves the right to withhold any technical support services. The intent of this provision is to ensure that Licensor is not required to provide excessive levels of support service due to Licensee’s lack of training.

7.1. Transmission of Data. Licensee understands that the technical processing and transmission of Licensee’s Electronic Communications (including any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service) is fundamentally necessary to use the Service. Licensee is responsible for securing DSL, cable or another highspeed Internet connection and up-to-date “browser” software to utilize the Service.  Licensee expressly consents to Licensor’s interception and storage of Electronic Communications and/or Licensee Data, and Licensee acknowledges and understands that Licensee’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Licensor. Licensee further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Licensor is not responsible for any Electronic Communications and/or Licensee Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Licensor, including, but not limited to, the Internet and Licensee’s local network. Licensee will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Licensee Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Licensee’s account. Licensor will act as though any Electronic Communications it receives under Licensee’s passwords, user name, and/or account number will have been sent by Licensee.

7.2.1. As between Licensor and Licensee, all title and intellectual property rights in and to the Licensee Data is owned exclusively by Licensee.  Licensee agrees that Licensor may use Licensee data to perform necessary and reasonable activities during software engineering activities to ensure that the Service functionality continues to work with Licensee’s data.

7.2.2. Licensor will maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Licensee Data.  

7.2.3. Following expiration or termination of any Sales Order and/or this LA, Licensor may immediately deactivate the applicable Licensee account(s) and will be entitled to delete such Licensee account(s) from Licensor’s “live” site following a forty (40) day period, after which Licensor will not be liable to Licensee nor to any third party for any termination of Licensee access to the Service or deletion of Licensee Data.

8.1. To the Service. Licensor may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Licensee of any material modifications. Licensor reserves the right to discontinue offering the Service at the conclusion of Licensee’s then current subscription term for such Service. Licensor will not be liable to Licensee nor to any third party for any modification of the Service as described in this section.

8.2. To Applicable Terms. If Licensor makes a material change to any applicable terms of this LA or a Sales Order, then Licensor will notify Licensee by either sending an email to the notification email address or posting a notice to the administrator in Licensee’s account. If the change has a material adverse impact on Licensee and Licensee does not agree to the change, Licensee must so notify Licensor via mchegini@eplansoft.com within thirty (30) days after receiving notice of the change. If Licensee notifies Licensor as required, then Licensee will remain governed by the terms in effect immediately prior to the change until the end of the then current subscription term for the affected Service. If the affected Service is renewed, it will be renewed under Licensor's then current version of this LA.

8.3. Suspension for Ongoing Harm. Licensor may with reasonably contemporaneous telephonic notice to Licensee suspend access to the Service if Licensor reasonably concludes that Licensee’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Licensee’s Service is causing immediate, material and ongoing harm to Licensor or others. In the extraordinary event that Licensor suspends access to the Service, Licensor will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Licensee to resolve the issues causing the suspension of Service. Licensee agrees that Licensor will not be liable to Licensee nor to any third party for any suspension of the Service under such circumstances as described in this section.

10.1. Infringement. Licensor will, at its own expense, defend Licensee from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets, and will indemnify Licensee from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. However, Licensor will have no liability for, or duty to defend or indemnify Licensee against, Claims to the extent arising from (a) use of the Service in violation of this LA or applicable law, (b) use of the Service after Licensor notifies Licensee to discontinue use because of an infringement claim, (c) modifications to the Service not made by Licensor or made by Licensor based on Licensee specifications or requirements, (d) use of the Service in combination with any non-Licensor software, application or service, or (e) services offered by Licensee or revenue earned by Licensee for such services. If a Claim of infringement as set forth above is brought or threatened, Licensor may, at its sole option and expense, use commercially reasonable efforts to (a) procure a license that will protect Licensee against such Claim without cost to Licensee; (b) modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate this LA and refund to the Licensee a pro-rata refund of the subscription fees paid for under any applicable Sales Orders for the terminated portion of the term. The rights and remedies granted Licensee under this Section 8.1 state Licensor’s entire liability, and Licensee's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

10.2. Licensee’s Indemnity. To the fullest extent permitted by law, Licensee will, at its own expense, defend Licensor from and against any and all Claims (i) alleging that the Licensee Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or has caused harm to a third party, or (ii) arising out of Licensee’s breach of this LA, and will indemnify Licensor from and against liability for any Losses to the extent based upon such Claims.

10.3. Indemnification Procedures and Survival. In the event of a Claim within the purview of these indemnification provisions, the indemnitee shall control its own defense, and at the time of Claim resolution the indemnitor shall reimburse the indemnitee for those attorney fees and other defense costs reasonably incurred in that defense. To the extent that the indemnitee may incur fees and costs in the defense of claims other than a covered Claim, the indemnitor shall have no responsibility for such costs. The indemnification obligations contained in this section will survive for one year after termination or expiration of this LA.

12.1. Disclaimer of Warranties. Except as stated above, Licensor makes no other warranties, express or implied, about the EPR or any service provided by Licensor under the attached Sales Order Form, including without limitation any warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights.

12.2. Waiver of Consequential Damages. Neither party shall be liable for consequential damages, such as lost profits or damages arising from the delay of a plan-review project, on any claim alleging or related to a breach of the LA and/or a Sales Order Form, regardless of the particular legal theories or causes of action. This waiver of consequential damages shall not apply, however, to any claim brought by Licensor against Licensee based on Licensee’s unauthorized duplication, distribution, or other misappropriation of Licensor’s intellectual property.

12.3. Limitation of Liability. Except for Licensor’s indemnity obligations set forth in the LA, Licensor’s total aggregate liability arising out of or connected with this Agreement, whether based upon breach of contract, warranty, negligence, misrepresentation or any other cause of action or theory of liability, and to the maximum extent permitted by applicable laws, shall in no case exceed the amount of subscription fees received by Licensor in the twelve (12) months immediately preceding the event from which the liability arises.

13.1. Taxes. Unless otherwise stated, Licensor fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Licensee is responsible for paying all Taxes associated with the use of Service. If Licensor has the legal obligation to pay or collect Taxes for which Licensee is responsible as a result of using Service, the appropriate amount will be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.

a.      “Aggregated Statistics” has the meaning given in Section 2.d.

b.      “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Subscription Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Subscription Services has been purchased from Vision33 pursuant to this Agreement.

c.      “Customer” means the company or other legal entity identified in the Order Form as the customer.

d.     “Customer Data” means, other than Aggregated Statistics, information, data, and any other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User to the Subscription Services.

e.       “Documentation” means Vision33’s standard end user documentation relating to the Subscription Services accessible through a website operated by Vision33 which may include but is not limited to user manuals, operating instructions, handbooks, guides and release notes, each as updated by Vision33 from time to time.

f.      “Initial Term” has the meaning given in Section 14.a.

g.       “Order Form” means an online order for Subscription Services entered into between Vision33 and Customer that incorporates this Agreement by reference and includes details on pricing, payment terms and subscription term, as amended or supplemented from time to time.

h.     “Renewal Term” has the meaning given in Section 14.a.

i.      “Subscription Fees” means the subscription fees payable by Customer to Vision33, as set forth in the applicable Order Form, which will entitle Authorized Users to access and use the Subscription Services and the Documentation in accordance with this Agreement.

j.       “Subscription Services” means the web-based applications, tools, integrations and platforms that are developed, operated and maintained by Vision33 and made available by Vision33 to Customer online via a browser or mobile application, as identified on the applicable Order Form.

k.     “Subscription Term” has the meaning given in Section 14.a.

l.      “Third-Party Services” means any services, products, content, information, applications, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Subscription Services.

m.    “Vision33” means the applicable Vision33 contracting entity identified in Section 19.

n.      “Vision33 IP” means the Subscription Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt Vision33 IP includes Aggregated Statistics and any information, data, or other content derived from Vision33’s monitoring of Customer’s access to or use of the Subscription Services, but does not include Customer Data.

a.      Provision of Access.  Subject to Customer’s and other Authorized Users’ compliance with the terms and conditions of this Agreement, Vision33 grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Subscription Services during the Subscription Term solely for use by Authorized Users for Customer’s internal business operations.  Vision33 will provide Customer the necessary passwords and access credentials to allow Authorized Users to access the Subscription Services.

b.      Documentation License.  Subject to the terms and conditions contained in this Agreement, Vision33 grants Customer a non-exclusive, non- sublicensable, non-transferable license for Authorized Users to use the Documentation during the Subscription Term solely for Customer’s internal business operations in connection with use of the Subscription Services.

c.       Use Restrictions. Customer shall not, and shall not permit any Authorized Users to, use the Subscription Services, any software component of the Subscription Services, or the Documentation for any purposes beyond the scope of the access granted under this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Subscription Services, any software component of the Subscription Services, or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, include in a service bureau or outsourcing offering, or otherwise make available the Subscription Services or the Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, or decode the Subscription Services or any software component of the Subscription Services, in whole or in part; (iv) remove any proprietary notices from the Subscription Services or the Documentation; (v) use the Subscription Services or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; (vi) use the Subscription Services to store or transmit any code, files, scripts, agents or programs intended to do harm, including, but not limited to, viruses, worms, time bombs and Trojan horses; or (vii) use the Subscription Services or the Documentation for any fraudulent, offensive, or obscene activity, or in a manner that violates any policies, guidelines, standards and requirements relating to the Subscription Services or the Documentation that may be posted online by Vision33 from time to time.

d.      Aggregated Statistics.  Notwithstanding anything to the contrary in this Agreement, Vision33 may monitor Customer’s use of the Subscription Services and collect and compile data and information related to Customer’s use of the Subscription Services to be used by Vision33 in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Services (“Aggregated Statistics”).  As between Vision33 and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Vision33. Customer agrees that Vision33 may make Aggregated Statistics publicly available and use Aggregated Statistics for the purpose of providing, improving or publicizing Vision33’s products and services and for other business purposes, in each case to the extent and in the manner permitted under applicable law.

e.       Reservation of Rights.  Vision33 reserves all rights not expressly granted to Customer in this Agreement.  Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Vision33 IP.

f.       Suspension.  Notwithstanding anything to the contrary in this Agreement, and in addition to any other remedies available under this Agreement or at law or in equity, Vision33 may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Subscription Services if: (i) Vision33 reasonably determines that: (A) there is a threat or attack on any of the Vision33 IP; (B) Customer’s or any other Authorized User’s use of the Vision33 IP disrupts or poses a security risk to the Vision33 IP or to any other customer or vendor of Vision33; (C) Customer or any other Authorized User is using the Vision33 IP in a manner prohibited by this Agreement or for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Vision33’s provision of the Subscription Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Vision33 has suspended or terminated Vision33’s access to or use of any third party services or products required to enable Customer to access the Subscription Services; or (iii) in accordance with Section 6.a. (any such suspension described in subsection 2.f.(i), (ii), or (iii), a “Subscription Services Suspension”).  Vision33 will use commercially reasonable efforts to provide written notice of any Subscription Services Suspension to Customer and to provide updates regarding resumption of access to the Subscription Services following any Subscription Services Suspension.  Vision33 will use commercially reasonable efforts to resume providing access to the Subscription Services as soon as reasonably possible after the event giving rise to the Subscription Services Suspension is cured.  Vision33 will have no liability for any damages, liabilities, losses, or any other consequences that Customer or any other Authorized User may incur as a result of a Subscription Services Suspension.

g.       Open Source Components. Customer acknowledges that the Subscription Services may include open source components and that any use of such open source components by Customer is subject to and governed solely by the terms and conditions of the applicable open source license agreements.  Notwithstanding anything to the contrary in this Agreement, Vision33 provides no warranty or indemnity with respect to such open source components.

a.      Account Use.  Customer is responsible and liable for all uses of the Subscription Services and the Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.  Without limiting the generality of the preceding sentence, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized Users’ use of the Subscription Services and the Documentation, and shall cause all Authorized Users to comply with such provisions.

b.      Customer Data.  Customer grants to Vision33 a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for Vision33 to provide the Subscription Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.  Customer will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate the terms of this Agreement or any policy referenced in or incorporated into this Agreement or any applicable law.  Customer is solely responsible for the accuracy, quality, integrity, development, content, operation, maintenance, and use of Customer Data.

c.       Passwords and Access Credentials.  Customer is responsible for keeping its passwords and access credentials associated with the Subscription Services secure and confidential. Customer shall not sell or transfer such passwords and access credentials to any other person or entity.  Customer shall promptly notify Vision33 about any unauthorized access to such passwords or access credentials.

d.      C u st omer’s  Net wo rk  and  Sy ste ms  .  Customer shall ensure that its network and systems comply with the relevant specifications for accessing the Subscription Services as set forth in the Documentation.  Customer shall be, to the extent applicable and permitted by law, solely responsible for: (i) procuring, maintaining and securing its network connections and telecommunications links from its systems to the Subscription Services; and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet.

a.      Independent Relationship.  The Subscription Services may permit access to Third-Party Services procured by Customer from a third party provider.  Vision33 assumes no responsibility for, and specifically disclaims, any liability or obligation with respect to such Third-Party Services. Customer’s relationship with such Third-Party Services and any terms governing Customer’s payment for, and use of, such Third-Party Services, including the collection, processing and use of Customer Data by such Third-Party Services, are subject to a separate contractual arrangement solely between Customer and the provider of such Third-Party Services.  Vision33 is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Services.  Vision33 does not warrant or support Third-Party Services, whether they are designated by Vision33 as “certified” or otherwise.

b.     Integration with Third-Party Services.  The Subscription Services may contain features designed to interoperate with Third-Party Services. If the provider of such Third-Party Services ceases to make such Third-Party Services available for interoperation with the corresponding Subscription Services features in a manner acceptable to Vision33, then Vision33 may cease providing those Subscription Services features without entitling Customer to any refund, credit, or other compensation.

a.      Invoicing and Payment.  In consideration of providing access to the Subscription Services and the Documentation, Customer will pay to Vision33 the Subscription Fees.  The Subscription Fees will be invoiced by Vision33 and paid by Customer in advance in accordance with the payment terms set forth in the applicable Order Form.  Except as otherwise specified in this Agreement, all Subscription Fees are non- refundable and not subject to set-off or deduction by Customer.  If any invoice is not paid when due, Vision33, without waiving any other rights or remedies to which it may be entitled, may: (i) charge interest on the unpaid amounts at the rate of two percent (2%) per month or the maximum rate permitted by law, whichever is lower; and (ii) suspend, in accordance with Section 2.f., Customer’s and any other Authorized User’s access to any portion or all of the Subscription Services until such amounts, including interest, are paid in full.  All Subscription Fees and other amounts payable to Vision33 under this Agreement do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes, statutory withholdings or deductions based on, or with respect to, Vision33’s net income or personnel).  Customer agrees that its order of Subscription Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Vision33, including any roadmaps, with respect to future functionality or features.

b.      Fee Increases.  Vision33 shall be entitled to increase the Subscription Fees at the start of each Renewal Term upon sixty (60) days’ prior written notice to Customer. In the event of any such fee increase, Customer may terminate this Agreement upon written notice provided to Vision33 at least thirty (30) days prior to the start of the applicable Renewal Term.  Not raising the Subscription Fees for a given Renewal Term shall not be a waiver of Vision33’s right to do so for subsequent Renewal Terms.

c.       Increasing Authorized Users.  Customer may purchase an increase to the number of Authorized Users at any time during the Initial Term or a Renewal Term by entering into an additional Order Form which will become an integral part of the original Order Form. The subscription term for such additional Authorized Users will be coterminous with the Initial Term or the then-current Renewal Term, irrespective of the effective date of the additional Order Form. The fees for the increase to the number of Authorized Users will be prorated accordingly to reflect the remaining period of the Initial Term or the then-current Renewal Term.  Any increase to the number of Authorized Users during the Initial Term or the then-current Renewal Term will continue to apply for each subsequent Renewal Term, except as otherwise reduced in accordance with Section 6.d. below.

d.      Reducing Authorized Users.  Customer may reduce the number of Authorized Users set forth in an Order Form as originally entered into or as increased as set out in Section 6.c. above by providing written notice of the reduction to Vision33 at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term.  Any such reduction will take effect on commencement of the next following Renewal Term.  For the avoidance of doubt, this means Customer is not entitled to reduce the Subscription Fees during the Initial Term or the then-current Renewal Term.

e.       Usage Limits.  The Subscription Services may be subject to usage limits specified in the Order Form.  If Customer exceeds such usage limits, Vision33 may work with Customer to seek to reduce Customer’s usage so that it conforms to such limits.  If, notwithstanding those efforts by Vision33, Customer is unable or unwilling to abide by such usage limits, Customer will enter into an Order Form for additional quantities of the applicable Subscription Services promptly upon Vision33’s request and pay any Vision33 invoice for excess usage no later than thirty (30) days after Customer’s receipt thereof.

a.      Vision33 Warranty. Vision33 warrants that the Subscription Services will perform substantially in accordance with the applicable Documentation.  This warranty will not apply to the extent of any non-performance which is non-material or caused by use of the Subscription Services contrary to the Documentation or Vision33’s instructions, or modification or alteration of the Subscription Services by any person other than Vision33.  In the event of breach of this warranty and Vision33 does not cure or correct the non-performance within thirty (30) days following receipt of Customer’s written notice of the breach, Customer may terminate this Agreement, as it relates to the non-performing Subscription Services, and Vision33 will refund any prepaid Subscription Fees relating to the non-performing Subscription Services for the remainder of the Initial Term or the then-current Renewal Term, as the case may be.  Such termination and refund constitute Customer’s sole and exclusive remedy for any breach of the warranty in this Section 11.a.  Except for the warranty explicitly set forth in this Section 11.a., Vision33 makes no warranties or representations of any kind, whether oral, written, express, implied, or arising by statute, custom, course of dealing, or trade usage, with respect to the Subscription Services.  Vision33 specifically disclaims any and all implied warranties or conditions of title, merchantability, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, Vision33 makes no warranty of any kind: (i) relating to third party products, software or services or that the Subscription Services will be compatible or work with any third party software, system or other services; (ii) that the Subscription Services will operate on every device (including mobile devices) even if the device is running the correct version of the operating system identified in the applicable Documentation; (iii) that the Subscription Services will meet Customer’s requirements or achieve any intended result; (iv) that the Subscription Services will be uninterrupted, error free (or that any errors or defects will be corrected), or free of viruses or other harmful components or code; or (v) that any Customer Data will be secure or not otherwise lost or damaged.

b.      Customer Warranty.  Customer represents and warrants to Vision33 that Customer owns or otherwise has and will have the necessary rights and consents in and relating to Customer Data so that, as used by Vision33 in accordance with this Agreement, it does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights, of any third party or violate any applicable laws, including data protection and export control laws.

a.      Vision33 Indemnification.  Vision33 will indemnify, defend and hold harmless Customer from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees (collectively, “Losses”), finally awarded against Customer by a court of competent jurisdiction, or agreed to via settlement approved by Vision33 in writing, as a result of any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Subscription Services, or any use of the Subscription Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Vision33 in writing of the Third-Party Claim, cooperates with Vision33, and allows Vision33 sole authority to control the defense and settlement of such Third-Party Claim. If such a Third-Party Claim is made or Vision33 reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Vision33, at Vision33’s sole discretion, to: (i) modify or replace the Subscription Services, or the affected component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use of the Subscription Services. If Vision33 determines that neither alternative is commercially reasonable, Vision33 will terminate this Agreement, in its entirety or with respect to the affected component or part of the Subscription Services, effective immediately on written notice to Customer and refund any prepaid Subscription Fees relating to the affected component or part of the Subscription Services for the remainder of the Initial Term or the then-current Renewal Term, as the case may be.  This Section 12 will not apply to the extent that any Third-Party Claim arises from: (A) modifications or changes made to the Subscription Services by any person other than Vision33 or its subcontractors; (B) use of the Subscription Services in combination with data, services, products, software, hardware, equipment, or technology not provided by Vision33 or authorized by Vision33 in writing; (C) Vision33’s customization of the Subscription Services based on Customer’s specifications or instructions; (D) Customer Data; (E) Third-Party Services; or (F) Customer’s breach of this Agreement.  This Section 12 sets forth Customer’s sole remedies and Vision33’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Subscription Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.

b.      Customer Indemnification.  Customer will indemnify, hold harmless, and, at Vision33’s option, defend Vision33 and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that Customer Data, or any use of Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Customer’s or any Authorized User’s use of the Subscription Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Vision33 unless Vision33 consents to such settlement, and further provided that Vision33 will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

a.      Term.  This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for the initial subscription period specified in the applicable Order Form (the “Initial Term”).  Unless terminated earlier in accordance with the terms of this Agreement or either party provides notice to the other party of its intent not to renew at least thirty (30) days prior to expiration of the then-current term, this Agreement will automatically renew for successive terms equal in length to the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Subscription Term”).

b.      Termination for Convenience.  Either party may terminate this Agreement for any reason upon providing written notice to the other party at least thirty (30) days prior to expiration of the then-current term. Any such termination will be effective at the end of the then-current term. For the avoidance of doubt, in the event of such termination, Customer will pay all Subscription Fees owing for the Subscription Services up to the end of the then-current term regardless if Customer accesses the Subscription Services after providing such termination notice and any Subscription Fees paid in advance by Customer will be non-refundable.

c.       Termination for Cause.  Each party may terminate this Agreement immediately if the other party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof; or (ii) ceases to operate in the ordinary course of business, becomes insolvent, is unable to pay debts when due, is subject to bankruptcy, receivership or dissolution proceedings, or makes an assignment for the benefit of creditors or similar disposition of its assets.  In addition, and without affecting any other available rights or remedies, Vision33 may terminate this Agreement immediately upon written notice if any act or omission by Customer or any other Authorized User results in a suspension described in Section 2.f. above.

d.      Consequence of Expiration or Termination.  Upon expiration or earlier termination of this Agreement: (i) Customer shall immediately discontinue use of the Vision33 IP; and (ii) if requested in writing by Customer within thirty (30) days after such expiration or earlier termination, Vision33 will make any Customer Data in its possession or control available to Customer for export or download.  After such thirty (30) day period, Vision33 will have no obligation to maintain or provide any Customer Data and may thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.  No expiration or termination of this Agreement shall affect Customer’s obligation to pay all Subscription Fees that may have become due before such expiration or termination, or entitle Customer to any refund.

e.       Survival.  Sections 1, 2.d., 2.e., 3.b. (as it relates to Aggregated Statistics), 6, 7, 10, 12, 13, 14.d., 14.e., 18, 19 and 20 of this Agreement shall survive any termination or expiration of this Agreement.  No other provisions of this Agreement shall survive such termination or expiration.

a.      The following provisions apply if Customer is domiciled in Canada:

i.    The Vision33 contracting entity is Vision33 Canada Inc., a Newfoundland and Labrador corporation with offices at 210 Water Street, Suite 400, St. John’s, Newfoundland and Labrador, A1C 1A9.

ii.    This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including non- contractual claims or disputes) shall be governed by and construed in accordance with the laws of the Province of Newfoundland and Labrador and the federal laws of Canada applicable therein, without reference to conflicts of law principles.  Each party irrevocably: (A) attorns to the exclusive jurisdiction of the courts of Newfoundland and Labrador and all courts of appeal therefrom with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.

b.     The following provisions apply if Customer is domiciled in a country that is part of the United Kingdom:

i.    The Vision33 contracting entity is Vision33 Limited, registered in England and Wales under company number 03786914 with registered office at 260/268 Chapel Street, Salford, Lancashire, M3 5JZ.

ii.    This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales, without reference to conflicts of law principles.  Each party irrevocably: (A) attorns to the exclusive jurisdiction of the courts of England and Wales with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.

c.      The following provisions apply if Customer is domiciled in a country that is a member of the European Union:

i.    The Vision33 contracting entity is zedIT Europe Limited, doing business as Vision33, an Irish company with offices at Castleyard, 20/21 St Patrick’s Road, Dalkey, Co. Dublin, A96 AX92.

ii.    This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including non- contractual claims or disputes) shall be governed by and construed in accordance with the laws of the Republic of Ireland, without reference to conflicts of law principles.  Each party irrevocably: (A) attorns to the exclusive jurisdiction of the courts of the Republic of Ireland with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.

d.     The following provisions apply if Customer is domiciled in the United States or any other country that is not referenced in Sections 19.a.,19.b. or 19.c. above:

i.    The Vision33 contracting entity is Vision33 Inc., a Delaware corporation with offices at 6 Hughes, Suite #220, Irvine, California, 92618.

ii.    This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including non- contractual claims or disputes) shall be governed by and construed in accordance with the internal laws of the State of California, without reference to conflicts of law principles or rules.  Each party irrevocably: (A) attorns to the exclusive jurisdiction of the federal courts of the United States or the courts of the State of California in each case located in the city of Irvine and County of Orange and all courts of appeal therefrom with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.

e.       The following provisions apply if Customer is domiciled in a country that is part of the United Kingdom or a country that is a member of the European Union:

i.    Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 19.e. is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.  In this Section 19.e.:

(A) “Applicable Laws” means: (I) where Customer is domiciled in a country that is a member of the European Union and for so long as and to the extent that they apply to Customer, the law of the European Union and/or the law of any member state of the European Union; and (II) where Customer is domiciled in a country that is part of the United Kingdom, the law of the United Kingdom or a part of the United Kingdom;

(B) “Data Protection Legislation” means: (I) where Customer is domiciled in a country that is a member of the European Union, the General Data Protection Regulation ((EU) 2016/679) and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data; and (II) where Customer is domiciled in a country that is part of the United Kingdom, all applicable data protection and privacy legislation in force from time to time in the United Kingdom including the retained European Union law version of the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and

(C) “Jurisdiction” means: (I) where Customer is domiciled in a country that is a member of the European Union, the European Economic Area; and (II) where Customer is domiciled in a country that is part of the United Kingdom, the United Kingdom.

ii.    The parties acknowledge that for the purposes of the Data Protection Legislation, Customer is the controller and Vision33 is the processor.  The scope, nature and purpose of processing by Vision33, the duration of the processing and the types of personal data and categories of data subject are as follows:

(A) Scope, Nature and Purpose of Processing – To enable Vision33 to provide the Subscription Services to Customer in accordance with this Agreement;

(B) Duration of Processing – With respect to the Subscription Services in relation to which the processing is carried out, for the duration of this Agreement in relation to those Subscription Services;

(C) Types of Personal Data – Depending on the nature of the Subscription Services the types of personal data will vary but may include Authorized User names and email addresses and any Customer Data relating to existing employee records and business partner records, including names, addresses, phone numbers and financial information; and

(D) Categories of Data Subject – Depending on the nature of the Subscription Services provided this may include Customer’s employees, consultants, contractors, agents, end users, customers, suppliers and other business partners of Customer.

iii.    Without prejudice to the generality of Section 19.e.i., Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the personal data to Vision33 for the duration and purposes of this Agreement. Vision33 will comply with instructions received from Customer with respect to the personal data unless such instructions:

(A) are legally prohibited; or

(B) require changes or modification to the Subscription Services.  Vision33 will promptly notify Customer if Vision33 cannot comply with an instruction.  Vision33 will not be liable for, and Customer will indemnify, defend and hold harmless Vision33 against, any claim brought by a data subject arising from any act or omission by Vision33 to the extent that such act or omission resulted directly from Customer’s instructions.

iv.    Without prejudice to the generality of Section 19.e.i., Vision33 shall, in relation to any personal data processed in connection with the performance by Vision33 of its obligations under this Agreement:

(A) process that personal data only on the documented written instructions of Customer unless Vision33 is required by Applicable Laws to otherwise process that personal data.  Where Vision33 is relying on Applicable Laws as the basis for processing personal data, Vision33 shall promptly notify Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Vision33 from so notifying Customer;

(B) ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);

(C) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

(D) not transfer any personal data outside of the Jurisdiction unless the following conditions are fulfilled: (I) Customer or Vision33 has provided appropriate safeguards in relation to the transfer; (II) the data subject has enforceable rights and effective legal remedies; (III) Vision33 complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (IV) Vision33 complies with reasonable instructions notified to it by Customer with respect to the processing of the personal data;

(E) assist Customer, at Customer’s expense, in responding to any request from a data subject and in ensuring compliance with Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(F) notify Customer without undue delay on becoming aware of a personal data breach;

(G) at the written direction of Customer in accordance with Section 14.d., delete or return personal data and copies thereof to Customer on termination of this Agreement unless required by Applicable Laws to store the personal data; and

(H) maintain complete and accurate records and information to demonstrate its compliance with this Section 19.e. and, at Customer’s expense and subject to Section 7, allow for audits by Customer or Customer’s designated auditor.

v.    Customer consents to Vision33 appointing third party processors of personal data under this Agreement to the extent deemed necessary by Vision33 to perform the Subscription Services.  Vision33 confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this Section 19.e. and in either case which Vision33 confirms reflect and will continue to reflect the requirements of the Data Protection Legislation.  As between Customer and Vision33, Vision33 shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this Section 19.e..

vi.    Vision33 may, at any time on not less than 30 days’ prior written notice to Customer, revise this Section 19.e. to the extent necessary to comply with any changes to the Data Protection Legislation or to reflect any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.