Master Subscription Agreement

MASTER SUBSCRIPTION AGREEMENT

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE OVATIONCXM SOFTWARE AND ANY RELATED SERVICES BY YOU, USERS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE OVATIONCXM SOFTWARE AND ANY RELATED SERVICES.

The terms and conditions provided herein, including any Exhibits, Service Plan(s) and any terms of service or click-through end user license agreements, together with any written Statement(s) of Work executed by the parties that reference this Master Subscription Agreement (each an “SOW” and, collectively, the “SOWs”) constitute the complete and entire agreement (collectively, this “Agreement”) by and between You and Boomtown Network, Inc. dba OvationCXM (“OvationCXM”), collectively referred to as the “parties” and individually referred to as a “party” herein, for the procurement and provision of the OvationCXM Software (each defined below) and any other services to be provided by OvationCXM pursuant to this Agreement.

By accepting this Agreement, either by accessing or using the OvationCXM Software or any related service, or authorizing or permitting any User or end-user to access or use the OvationCXM Software or any related service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to OvationCXM that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the OvationCXM Software or any related service.

1.  Definitions.  As used in this Agreement:

a.  “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.

b.  “OvationCXM Software” means collectively the SaaS Software and the Licensed Software.

c.  “Licensed Software” means and includes any OvationCXM mobile application(s) (each a “OvationCXM App” and, collectively, the “OvationCXM Apps”), API(s) or other local software, including any applicable updates thereto, in each instance that OvationCXM provides to You hereunder.

d.  “Proprietary Information” means all information that is disclosed by a party to the other party in connection with this Agreement that is (i) conveyed in written, graphic, machine readable or other tangible form and conspicuously marked “confidential,” “proprietary” or in some other manner to indicate its confidential nature; (ii) conveyed orally, provided that such information is designated as “confidential” or “proprietary” at the time of such oral disclosure or within thirty (30) days after the date of oral disclosure; (iii) the OvationCXM Software and SaaS Services (including any corresponding OvationCXM website(s), portal(s), or system(s)) and any updates, upgrades, enhancements or equivalent versions thereof (collectively, “OvationCXM Property”); (iv) a party’s business and customer information, product plans and product and technology roadmaps, whether or not marked “proprietary” or “confidential”; and (v) any information, data or know-how derived from the items in (i)-(iv). Notwithstanding the above, information shall not be deemed Proprietary Information if the receiving party can show it: (a) is or becomes generally known to the public through no unlawful act of the receiving party; (b) was known to the receiving party at the time of disclosure, as evidenced by the receiving party’s written records, and not subject to other restrictions on its disclosure; (c) is disclosed with the prior written approval of the disclosing party; (d) was independently developed by the receiving party without any use of, or reference to, the Proprietary Information of the disclosing party; or (e) becomes known to the receiving party from a source other than the disclosing party without breach of this Agreement and otherwise not in violation of the disclosing party’s rights; provided, the foregoing exclusions shall not apply to any OvationCXM Property, which shall at all times remain the Proprietary Information of OvationCXM.

e.  “SaaS Software” means OvationCXM’s remotely hosted software platform that is offered as a service and known as OvationCXM, including any applicable updates and any companion remote-access developer tools and components thereto made available to You hereunder through the Service Plan(s).  OvationCXM’s provision of the SaaS Software as a software service (solely as remotely-hosted and made available by OvationCXM on a “cloud” basis) is referred to herein as the “SaaS Service(s)”.

f.   “Service Plan(s)” means packaged SaaS Service plan(s) and the SaaS Software associated with such service plan(s) detailed in the SOWs attached hereto for the SaaS Software, including any related remote and field services accessed through the OvationCXM Software, to which You subscribe.

g.  “User” means an individual who is authorized by You to access and use (i) the SaaS Software through the SaaS Services, for whom You have purchased a subscription, and to whom You (or, when applicable OvationCXM at Your request) have supplied a user identification and password (for SaaS Software utilizing authentication) and/or (ii) any OvationCXM Software, in each of (i) and (ii) to the extent permitted under this Agreement (including pursuant to the applicable SOW(s)) and who have agreed to any applicable terms of service or click-through end user license agreements referenced herein.  Subject to the foregoing, (1) Users may include, for example, Your (or, where applicable, Your Affiliate’s) employees or consultants, contractors or agents performing services for their benefit and (2) Users of OvationCXM App(s) may include individual merchant and/or consumer end users.

2.  Services; Limited Licenses.

a.  Orders.  SOWs submitted by either party pursuant to this Agreement will not become effective unless executed by the parties.  Any additional or different terms provided in any prospective SOW or purchase order issued by You (or any of Your Affiliates, as provided below) regarding the SaaS Services or OvationCXM Software will not become part of this Agreement and will not be binding upon OvationCXM.  You may procure Services under this Agreement for Your own account or on behalf of one or more of Your Affiliates; provided, You shall remain directly responsible to OvationCXM for each such Your Affiliate’s compliance with the terms and conditions of this Agreement.  In addition, Your Affiliates may procure SaaS Services and/or OvationCXM Software directly under this Agreement pursuant to an SOW that identifies such Your Affiliate; provided, such SOW(s) shall not be effective unless signed by an authorized representative of such Your Affiliate and accepted and executed by OvationCXM; provided, further that upon execution of such SOW(s), the Affiliate referenced therein will be considered “You” but You (i.e., the entity signing this Master Subscription Agreement) shall remain directly responsible to OvationCXM for each such Your Affiliate’s compliance with the terms and conditions of this Agreement, including any such SOW(s).

b.  SaaS Software.  OvationCXM hereby grants to You (and, where applicable, Your Affiliates), subject to the terms and on the conditions of this Agreement (including any applicable SOW(s)), a limited, non-transferable, non-sublicensable, and non-exclusive right, solely for the service term identified in the applicable SOW(s), to access and use the SaaS Software through the SaaS Services (i.e., solely as remotely-hosted and made available by OvationCXM on a “cloud” basis).  For clarity, no copy of the SaaS Software is or will be distributed or otherwise made available to You, Your Affiliates, any Users or any third party under this Agreement.  You acknowledge that Users of the SaaS Software and SaaS Services may also be subject to additional terms and conditions of OvationCXM’s applicable terms of service and/or click-through end user license agreement(s) that OvationCXM makes available to such Users (as may be updated by OvationCXM from time to time).

c.  Licensed Software. OvationCXM hereby grants to You (and, where applicable, Your Affiliates), subject to the terms and on the conditions of this Agreement (including any applicable SOW(s)), a limited, non-transferable, non-sublicensable and non-exclusive license, solely for the term of this Agreement or for the period identified in the applicable SOW(s), to: (i) use the Licensed Software, in object code form only, for Your internal use only and (ii) make available the OvationCXM App(s) to individual merchant and/or consumer end users for their own internal use subject to any additional terms of service provided or made available by OvationCXM to You with respect thereto. You acknowledge that Users of the Licensed Software may also be subject to additional terms and conditions of OvationCXM’s applicable terms of service and/or click-through end user license agreement(s) that OvationCXM makes available to such Users (as may be updated by OvationCXM from time to time).

d.  Open Source Software. You acknowledge that the OvationCXM Software may include open source software, details and licenses of which may be included in a “readme” or like file provided to You in connection with the OvationCXM Software. If and solely to the extent a software component included with or in the OvationCXM Software is licensed under an open source software license that is incompatible with the terms and conditions of this Agreement, the terms and conditions of such open source software license will take priority over this Agreement solely with respect to such incompatibility and solely with respect to Your use of such software component. For clarity, nothing in this Section 2.d will (i) broaden OvationCXM’s representations or warranties or indemnification obligations to You; (ii) waive, limit, or disclaim any limitations of liability of OvationCXM set forth in this Agreement; or (iii) amend the scope of any license granted to You with respect to any proprietary portions of the OvationCXM Software.

e.  Updates; Support. So long as You have not breached this Agreement OvationCXM agrees, solely during the term of this Agreement, to: (i) make available to You during the term of this Agreement those updates to the OvationCXM Software that OvationCXM makes generally commercially available to its other partners who are subscribed to similar Service Plan(s), and (ii) use commercially reasonable efforts to respond to Your requests for support with respect to the OvationCXM Software, provided that, for clarity, OvationCXM has no obligation under this Agreement to provide any service or support to Your customers or any end users (including, without limitation, Users of OvationCXM Apps) or to provide any support outside of OvationCXM’s regular business hours, unless otherwise specified in a SOW executed between the parties to this Agreement.

f.   Access. A high-speed internet connection is required for proper transmission of the SaaS Software, SaaS Services and certain OvationCXM Software.  You are responsible for procuring and maintaining the network connections that connect Your network to the SaaS Software, SaaS Services, and any corresponding OvationCXM website(s), portal(s), or system(s) including, but not limited to, “browser” software that supports protocols used by OvationCXM, including the Transport Layer Security (TLS) protocol or other protocols accepted by OvationCXM, and to follow procedures for access services that support such protocols.  OvationCXM is not responsible for notifying You or any of Your affiliated Users of any upgrades, fixes, or enhancements to any such software or for any compromise of data, transmitted across computer networks or telecommunications facilities (including but not limited to the internet) which are not owned, operated, or controlled by OvationCXM. OvationCXM assumes no responsibility for the reliability or performance of any connections described in this section.  You shall be responsible for controlling end user (including User) access to the OvationCXM Property, including without limitation taking all commercially reasonable measures to ensure that only authorized Users receive and maintain access to the OvationCXM Property throughout the term of this Agreement, to protect and maintain the accuracy and currency of any User names, passcodes and other associated information and to promptly disable access for individuals no longer authorized Users.

3.  Restrictions. You acknowledge that the OvationCXM Property contains valuable trade secrets of OvationCXM and its licensors and suppliers and constitutes the Proprietary Information of OvationCXM. Accordingly, and except as may be permitted under Section 2.d, You agree that it may not: (i) modify, adapt, alter, translate, or create derivative works of the OvationCXM Property; (ii) create Internet “links” to the OvationCXM Property or “mirror” any data, information, content, or other material of OvationCXM that is provided to it through the use of the OvationCXM Property; (iii) build a product or service using similar ideas, features, functions, or graphics of the OvationCXM Property; (iv) except as expressly provided in Section 2, sublicense, resell, rent, lease, transfer or assign OvationCXM Property or its use, or offer the OvationCXM Property on a time share basis to any third party; (v) reverse engineer, decompile, decode, or disassemble the OvationCXM Property; or (vi) otherwise attempt to derive the source code for the OvationCXM Property or attempt to gain access to any underlying code used to implement or deploy the OvationCXM Property. For clarity, You receive no right or license to any source code to the OvationCXM Property hereunder.

4.  Ownership.

a.  OvationCXM Property. Subject to the licenses expressly granted to You hereunder, all right, title and interest in and to the OvationCXM Property and any intellectual property rights therein are and shall be owned solely and exclusively by OvationCXM.

b.  Usage Data. OvationCXM may monitor the usage of the OvationCXM Property and may collect and/or generate data and information relating to Your and any end user’s (including any User’s) use of the OvationCXM Property together with the technologies and products managed and supported therein or thereby to the extent accessible by or available to OvationCXM (collectively, the “Usage Data”). All Usage Data shall be deemed OvationCXM Property and owned by OvationCXM and may be used by OvationCXM for any lawful purpose. OvationCXM may provide notices, alerts, or other messages to You or end users (including Users) based on the Usage Data.

OvationCXM uses such Usage Data to train OvationCXM’s internal machine learning models to support and improve certain features and functionality within the OvationCXM Property (including the SaaS Services, SaaS Software and Licensed Software) in an anonymized manner.  OvationCXM may analyze Usage Data to analyze user behavior within such OvationCXM Property, which may then be used to develop new features or improve existing features, inform future sales and marketing strategies, and to market and sell the OvationCXM Property.

For the avoidance of doubt, OvationCXM does not disclose aggregated and/or anonymized information to a third party in a manner that would identify You as the source of the information or Your personnel or end users of such OvationCXM Property personally, as an individual.

c.  Feedback. To the extent You, Your employees, or any end users (including Users) of any of the OvationCXM Property or related services provide OvationCXM with any suggestions, ideas, enhancement requests, recommendations or feedback regarding any of the OvationCXM Property or related services, or You or any of Your employees, or any end users (including Users) otherwise conceives of or creates any ideas, enhancements, improvements, or modifications to the OvationCXM Property or related services (collectively, “Feedback and Improvements”), OvationCXM will be free to use, disclose, commercialize, license, and exploit such Feedback and Improvements without any restriction. Feedback and Improvements may also be used to improve the OvationCXM Property and related services for other customers of OvationCXM.

5.  Proprietary Information.

a.  Nondisclosure or Use. Each party agrees that it shall not disclose any Proprietary Information of the other party to anyone without the written consent of the other party, except that each party may: (i) use the Proprietary Information of the other party to, but only to, carry out the activities permitted hereunder; and (ii) disclose the Proprietary Information of the disclosing party to the receiving party’s employees, contractors, consultants, and agents who have a need to know such Proprietary Information in order to exercise the rights and fulfill the obligations of the receiving party and who are bound by a written confidentiality agreement with confidentiality provisions no less stringent than those contained in this Agreement. The standard of care to be exercised by the receiving party to meet the obligations in this Section 5 shall be the standard exercised by the receiving party with respect to its own confidential or proprietary information of a similar nature, but in no event less than reasonable care.

b.  Permitted Disclosures. The receiving party may disclose Proprietary Information pursuant to a valid order issued by a court or government agency, provided that the receiving party provides, without delay, to the disclosing party written notice of such disclosure requirement, and cooperates with the disclosing party if the disclosing party seeks to limit or oppose such disclosure.

c.  Ownership and Return of Proprietary Information. All Proprietary Information of a disclosing party shall remain the sole property of such disclosing party. Upon the termination of this Agreement, or at any time upon written request of the disclosing party, the receiving party shall return the disclosing party’s Proprietary Information and not keep any copies thereof.

6.  Fees; Payment Term; Taxes; Late Fees.

a.  Fees. You will pay OvationCXM the fees set forth in Statement(s) of Work (“Fees”) in U.S. Dollar, unless otherwise indicated.   You will have no right to set-off any amounts due under this Agreement. All payments are further subject to any additional terms and conditions set forth in the Statement(s) of Work. All Fees disclosed in this Agreement or the Statement(s) of Work are the Proprietary Information of OvationCXM.

b.  Payment Terms. The invoiced amounts not disputed in good faith will be due and payable within ten (10) days of the receipt of the invoice (“Standard Payment Terms”). Any disputes by You regarding invoiced amounts must be provided in writing to OvationCXM within ten (10) days of the receipt of the invoice by You; otherwise, the invoiced amounts will be due and payable within the Standard Payment Terms. You may withhold payment of the disputed invoice until the dispute is resolved. OvationCXM may submit a separate invoice covering all non-disputed charges to be paid according to the Standard Payment Terms while the parties engage in resolving the disputed amounts. You and OvationCXM will use commercially reasonable efforts to timely resolve any disputes regarding amounts invoiced.

c.  Taxes. All Fees exclude any sales, use, excise, import, export, value added, universal service charge, withholding or other similar taxes or governmental charges, including any related penalties and interests however designated, other than taxes based on the net income of OvationCXM (collectively “Taxes”), and You agree to pay any Taxes imposed under this Agreement.

d.  Late Payments. In the event You fail to make any payments when due under this Agreement, You may be charged a late fee on any amount that is not paid when due at a rate of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law, whichever is lower, calculated from the due date until the date paid. OvationCXM may further suspend any or all access to any or all of the OvationCXM Property and any related services until all amounts due and late fees are paid in full.

7.  Disclaimer. By its nature, the OvationCXM Property may contain errors, bugs, and other problems that could cause system failure. In addition, the OvationCXM Property may not have any documentation, and any documentation in existence may be inaccurate or incomplete. EXCEPT AS SET FORTH HEREIN OR ANY SOW, OVATIONCXM PROVIDES THE OVATIONCXM PROPERTY AND ANY RELATED DOCUMENTATION TO YOU ON AN “AS-IS” BASIS WITHOUT WARRANTY OF ANY KIND, AND OVATIONCXM MAKES NO WARRANTY REGARDING THE OVATIONCXM PROPERTY, ANY RELATED DOCUMENTATION, OR THE USE OR OPERATION OF THE OVATIONCXM PROPERTY, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, AND NON-INFRINGEMENT. YOU MAKE NO WARRANTY REGARDING ANY FEEDBACK PROVIDED HEREUNDER AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE.

8.  Indemnification; Consequential Damages Waiver; Limitation of Liability.

a.  Indemnification by OvationCXM. OvationCXM will indemnify, defend, and hold harmless You and Your officers, directors, employees, and contractors (“Your Indemnified Entities”) from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ fees) to the extent resulting from any claim or suit asserted by a third party against Your Indemnified Entity that the OvationCXM Software, as and in the form provided by OvationCXM, infringes such third party’s intellectual property rights; provided, however, that OvationCXM shall have no obligations under this Section 8.a if and to the extent any such claim or suit, or any resulting liabilities, losses, damages, costs, or other expenses, are based on: (i) OvationCXM’s compliance with any explicit instructions or specifications provided by You; (ii) the modification of the OvationCXM Software by anyone other than OvationCXM; (iii) the combination of the SaaS Services or any OvationCXM Software with any product, software, or service not provided by OvationCXM; (iv) Your Indemnified Entity’s continued use of the OvationCXM Software after OvationCXM has provided the Your Indemnified Entity with a new version or update to such OvationCXM Software that no longer infringes; (v) Your Indemnified Entity’s misuse of the SaaS Services or OvationCXM Software (including any use outside of the express scope of the licenses granted hereunder); (vi) hardware or software applications of You (each of (i)-(vi) hereof, an “Excluded Claim”); or (vii) any open source software used or incorporated into any OvationCXM Software. OvationCXM’s obligations under this Section 8.a are conditioned on: (a) You promptly notifying OvationCXM in writing of the applicable; (b) OvationCXM being granted sole control of the defense and/or settlement thereof; and (c) Your Indemnified Entity furnishing to OvationCXM, on request, all relevant information available to Your Indemnified Entity and reasonable cooperation for such defense. The obligations provided in this Section 8.a shall be the sole obligation of OvationCXM and the exclusive remedy of Your Indemnified Entities with respect to any infringement claims based on the OvationCXM Software. If OvationCXM believes that Your Indemnified Entity is, or may become, prohibited from continued use of any SaaS Services or OvationCXM Software by reason of an actual or anticipated infringement claim or suit then, at OvationCXM’s option, OvationCXM will use its reasonable efforts to: (1) obtain for Your Indemnified Entity the right to continue to use the SaaS Services and/or OvationCXM Software as permitted hereunder; or (2) replace or modify the SaaS Services and/or OvationCXM Software so that it is no longer subject to such claim or suit. If the options described in clauses (1) and (2) above are not reasonably available to OvationCXM then OvationCXM has the right not to provide any portion of the SaaS Services and/or OvationCXM Software that is the subject matter of the claim or suit and Your Indemnified Entity’s rights and licenses to such SaaS Services and/or OvationCXM Software will immediately terminate.

b.  Indemnification by You. You will indemnify, defend, and hold harmless OvationCXM and its officers, directors, employees, and contractors from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ fees) resulting from any claim or suit arising out of or related to (i) Your breach of this Agreement; (ii) any use (except to the extent OvationCXM is obligated to indemnify You as provided in Section 8.a), or misuse of any of the OvationCXM Property by Your Indemnified Entity or any of their end users (including Users) of any of the OvationCXM Property; or (iii) any Excluded Claim.

c.  Consequential Damages Waiver. EXCEPT WITH RESPECT TO THE OBLIGATIONS SET FORTH IN SECTION 5 AND SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER INCURRED, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE BY THE OTHER PARTY.

d.  Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF OVATIONCXM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY CONTRACT YEAR EXCEED THE FEES ACTUALLY PAID TO OVATIONCXM DURING THE IMMEDIATELY PRIOR CONTRACT YEAR.

9.  Term and Termination.

a.  Term. This Agreement commences as of the Effective Date and continues until terminated as provided below.  The term of each SOW shall be specified in the applicable SOW; provided, that unless otherwise specified in the applicable SOW, the service term for any SaaS Services procured thereunder shall automatically renew for additional, successive one (1) year renewal terms unless, no less than ninety (90) days prior to the expiration of the then current service term for any SaaS Services procured thereunder, either party to this Agreement notifies the other party, in writing, of its intent not to renew such service term for such SaaS Services upon its then expiration.  For avoidance of doubt, termination of this Agreement in accordance with this Section 9 will automatically terminate all SOWs (including all service terms for SaaS Services specified therein) then in effect.

b.  Temporary Suspension. OvationCXM reserves the right to restrict functionality or suspend Your access to and use of the SaaS Services and/or OvationCXM Software (or any part thereof) if OvationCXM believes that You, Your Affiliate, or any of their respective Users has violated the terms of this Agreement.  Unless legally prohibited from doing so, OvationCXM will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. OvationCXM shall not be liable to You for any such modification of suspension of Your rights to access and use the SaaS Services and/or OvationCXM Software.

c.  Termination. Either party may, upon written notice to the other party, immediately terminate one or more of the then-current SOWs if the other Party materially breaches the terms or conditions of such SOW(s) or this Agreement with respect to such SOW(s) and, in either instance, such breach is not cured within thirty (30) days after written notice of such breach is given by the aggrieved party to the breaching party. In addition, OvationCXM may terminate this Agreement and/or any or all SOWs in the event You, Your Affiliate or any of their respective Users materially breaches the terms or conditions of this Agreement (including any SOW(s)) and such breach is not cured within thirty (30) days after written notice of such breach is given by OvationCXM to You.  Upon the expiration or termination of this Agreement (or the expiration or termination of any SOW, then with respect to the SaaS Services, OvationCXM Software and/or other services procured thereunder) for any reason: (i) the rights and licenses granted pursuant to Section 2 shall simultaneously terminate; (ii) You, Your Affiliates and all end users (including Users) thereof shall immediately cease all use of the OvationCXM Property; and (iii) each party shall return the Proprietary Information of the other party (and not keep any copies of the other party’s Proprietary Information, except as otherwise specified in this Section 9.c) in accordance with Section 5.c.  Sections 1, 3, 4, 5.c, 6, 7, 8, 9.c, and 10 (other than Section 10.a) shall survive the expiration or termination of this Agreement and any SOWs.

Notwithstanding the foregoing or anything in this Agreement to the contrary, neither party is obligated to erase Proprietary Information (a) commingled with other information or documents of the recipient if it would pose a substantial administrative burden to excise such Proprietary Information, or (b) contained in an archived computer system backup made in accordance with such party's security or disaster recovery procedures, provided in each case that such commingled documents and archived copies: (i) are handled in the ordinary course of such party’s data processing procedures; and (ii)  remain fully subject to the obligations of confidentiality in this Agreement until the eventual erasure or destruction or the expiration of the confidentiality obligations set out in this Agreement.  The parties further agree that any Proprietary Information shall remain and belong to the party that supplied the Proprietary Information to the other party.

Notwithstanding the foregoing, the termination or expiration of this Agreement and/or any SOWs hereunder will not relieve either party of any liability or obligation that accrued prior to such termination or expiration. In addition, if any SOW(s) and/or this Agreement is terminated by OvationCXM due to Your uncured material breach then You will immediately pay to OvationCXM any and all amounts that would have been owed or otherwise payable to OvationCXM during the term of the Agreement had it not been terminated early.

This Agreement may be terminated by either party immediately upon written notice to the other party upon the other party’s insolvency, filing of a voluntary petition in bankruptcy or a voluntary petition or answer seeking reorganization, arrangement or readjustment of its debts, or any agreement of the other party indicating its consent to, approval or acquiescence in any petition or proceeding, or the application by the other party for or the consent or acquiescence of the other party to the appointment of a receiver or trustee or the filing of an involuntary petition against the other party seeking reorganization, rearrangement or readjustment of its debts or for any other relief under any insolvency act or law, now or hereafter existing, or the involuntary appointment of a receiver or trustee over all or a substantial part of the other party’s property or assets.

10. General.

a.  Marketing, Demo, and Co-Marketing.  OvationCXM may use your name, logo, and trademarks, in printed, audio, and digital formats and on your websites, for the purpose of advertising and marketing the OvationCXM Property and related services, provided that no quotes or other attributions will be made to You without your prior written consent. You and OvationCXM may publicly refer to the other party as a partner.

b.  Relationship. The parties are each independent contractors, and neither party shall be, nor represent itself to be, the franchiser, joint venturer, franchisee, partner, broker, employee, servant, agent, or legal representative, of the other party for any purpose whatsoever. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party, or bind the other party in any manner whatsoever.

c.  Entire Agreement; Amendment; Waiver. Each of the parties hereto acknowledges that it has read this Agreement and understands and agrees to be bound by its terms. This Agreement supersedes any previous agreements, understandings or communications, whether written or oral, relating to such subject matter.  This Agreement also incorporates any jurisdiction-specific additional terms and conditions provided or made available by OvationCXM to You, Your Affiliates or their respective Users from time to time during the term of this Agreement.  This Agreement may not be modified, amended or supplemented, except by a signed writing of all parties hereto. No failure to exercise, and no delay in exercising, any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single exercise, any single failure to exercise, or a partial exercise of a right, power or privilege hereunder preclude the exercise of any other right, power or privilege. No waiver of any right, power or privilege hereunder shall be valid unless made in writing and signed by the waiving party.

d.  Severability. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement or the application of such provisions as applied to other persons, places and circumstances shall remain in full force and effect.

e.  Notice.  Any notice required or permitted to be given by either party under this Agreement shall be in writing, and shall be personally delivered, sent by electronic mail, sent by certified or registered mail, or sent by a nation-wide courier service, to the other party at its address set forth in this Agreement, or such new address as may from time to time be supplied by the parties hereto in accordance with this Section 10. If personally delivered, notices will be deemed delivered and effective on the date of personal delivery. If sent by electronic mail, then notices will be deemed delivered and effective upon the date of confirmation of receipt by answer-back from the recipient. If delivered by a nation-wide courier service, then notices will be deemed delivered and effective on the date of receipt.

f.   Captions and Headings. All captions and headings are for reference only and shall not be considered in interpreting or construing this Agreement.

g.  Assignment; Subcontracting. This Agreement may not be assigned or delegated by You without the prior written approval of OvationCXM, which consent will not be unreasonably withheld. OvationCXM may freely assign this Agreement in connection with any merger or change of control of OvationCXM or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. OvationCXM may subcontract any or all of its obligations under this Agreement without Your consent, provided that OvationCXM will remain responsible for such subcontractor’s performance hereunder.

h.  Non-Solicitation. During the term of this Agreement, and for two (2) years after the expiration of this Agreement, the parties will not directly or indirectly, in any capacity, induce or attempt to induce any employee, agent or independent contractor of the other party to accept employment or perform work on its behalf without express written consent of the other party, unless otherwise allowed by the applicable law.  Notwithstanding the foregoing, the parties are not prohibited from placing general employment opportunity advertisements and the parties may hire an employee or consultant of the other party if such employee or consultant responds to or is hired solely on such a general announcement.

i.   Injunctive Relief. The parties acknowledge that any breach of any of the provisions of this Agreement may cause irreparable harm and significant injury to OvationCXM, the extent of which may be extremely difficult to ascertain. Accordingly, You agree that OvationCXM will have, in addition to any other rights or remedies it may have available at law or in equity, the right to seek injunctive relief, without posting bond, to enjoin any breach or violation of such provisions.

j.   Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to conflicts of law principles. The application of the United Nations Convention on the International Sale of Goods is specifically disclaimed. Any dispute or controversy arising from or relating to this Agreement must be arbitrated in Santa Clara County, California before a single arbitrator who is jointly selected and mutually approved by the parties or, if the parties are unable to or fail to agree on the selection of the arbitrator within fifteen (15) days of the demand for arbitration being served, who is appointed by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with its rules. The arbitrator shall serve as a neutral, independent and impartial arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the expedited procedures in those rules), or, if applicable, in accordance with the JAMS International Arbitration Rules. The results of the arbitration procedure will be considered the Proprietary Information of both parties. Any arbitration decision rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the above, neither party will be required to arbitrate a dispute relating to the misuse or misappropriation or any Proprietary Information or the infringement of intellectual property rights, which dispute shall be brought in the federal and state courts in Santa Clara County, California, and each party hereby consents to the jurisdiction and venue of such courts for such disputes. The parties agree that any and all process directly to any of them in any such litigation may be served outside the State of California with the same force and effect as if the service had been made within the State of California and that service of process may be effected in accordance with Section 10.e hereof.

k.  Force Majeure. OvationCXM shall not be in default by reason of any failure in performance of its obligations if such failure arises out of causes beyond the control (whether caused directly or indirectly) of OvationCXM. Such causes may include, but are not restricted to: Acts of God or of the public enemy; acts of government (including specifically but not exclusively any orders, rules, or regulations issued by any official or agency of any such government) in either its sovereign or contractual capacity; riots; fires; earthquake; floods; epidemics; quarantine restrictions; embargoes; strikes; labor difficulties; delays or interruptions in performance by suppliers or subcontractors; unusually severe weather; shortages in labor, fuel, materials and supplies; internet connectivity problems; hacking of any facilities, resources, or infrastructure (whether of OvationCXM or any third party service provider thereof); or any combination thereof.

l.   Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

SUPPLEMENTAL TERMS AND CONDITIONS

Section 1: Security

OvationCXM maintains a formalized information security policy to comply with various regulatory and business requirements. This security policy protects all sensitive and confidential data stored, accessed, or transmitted by the OvationCXM Software, including its applications, components, infrastructure, and underlying code.

OvationCXM has designed a risk assessment program to assess the organization’s enterprise-level risk at least annually or upon significant changes to the environment. This program is designed to identify and assess threats to and vulnerabilities in systems and in service.

OvationCXM takes responsibility for implementing appropriate technical and organizational safeguards to ensure the protection of sensitive information. Employees of OvationCXM are required to read and accept the terms of a confidentiality agreement upon hire that states they are prohibited from disclosing any company data from the systems and system components to which they have access.

OvationCXM maintains strict control access to restrict private information to privileged users. These users are required to abide by their assigned responsibilities related to their elevated access.

OvationCXM has established a Data Handling, Retention, and Disposal Program to manage information in accordance with applicable laws, regulations, policies, and standards. This program establishes a formal data retention schedule and implements a data classification standard to ensure the confidential data is secured.

OvationCXM retains sensitive and confidential data only for as long as necessary to fulfill its purposes unless otherwise required by law or to meet legal and client contractual obligations.

OvationCXM segments its network to prevent direct or unauthorized connections between an external network and its information systems, in particular confidential data in cloud environments.

OvationCXM maintains a vulnerability management program to ensure the confidentiality, integrity, and availability of the organization’s information systems landscape, which includes all critical system resources. The program includes internal and external scans, penetration testing, and issue remediation for the purposes of identifying, detecting, classifying, prioritizing, remediating, validating, and continuously monitoring vulnerabilities.

OvationCXM conducts independent third-party penetration tests at least annually on any systems with sensitive information or with a critical risk rating to identify security vulnerabilities.

Section 2: Add-On CX Support and CX Activation Network Terms

a.  OvationCXM’s Obligations.

a.  CX Support. OvationCXM will provide remote support for the products listed in SOW(s) through the OvationCXM Software to You and Your customers for remote assistance with technology-related issues (“CX Support”).  CX Support will be available 24 hours per day, 7 days per week.

CX Support is a front-line support service to address basic usability and technology-related issues for the products listed in SOW(s), after having attempted to screen out all problems that have causes other than Your products and services.

All CX Support provided to You and Your customers will be documented in the OvationCXM Software.

b.  CX Activation Network. OvationCXM will provide access to its field service marketplace (“Field Services”) through the OvationCXM Software to You and Your customers for onsite assistance with technology-related issues.  Requests for field services (“Work Order” or “Work Orders”) submitted by You through the SaaS Software will be advertised to the field technician marketplace. Field technicians may accept or reject the Work Orders.

If You submit a Work Order and a field technician does not accept in the OvationCXM Software, OvationCXM will attempt to re-advertise to a best-efforts basis but does not guarantee Work Orders submitted by You will be accepted by a field technician.

OvationCXM will provide You with template examples of installation guides, checklists, and scopes of work to be submitted through the SaaS Software.

OvationCXM’s CX Activation Network team will check in with field technicians through the OvationCXM Software periodically while field technicians are completing Work Orders to monitor field technician activity, including, but not limited to, check-in and check-out times at Your customer’s location and documentation of the work completed in the SaaS Software.

2.  Your Obligations.

a.  CX Support.  You acknowledge that OvationCXM will provide support through the OvationCXM Software and You will direct Your customers to receive support through the OvationCXM Software for CX Support.  You will provide all customer service support, including any questions regarding sales, billing, account changes, and other sensitive information such as payment card data, social security numbers, and bank account information (collectively, “Customer Support”).

You will make Your personnel available in the OvationCXM Software to collaborate with OvationCXM in delivering CX Support to Your customers.

You acknowledge that OvationCXM will escalate any Field or CX Support that cannot be provided by OvationCXM through the OvationCXM Software (“Tier 2 Support”) for servicing by Your personnel. You will use commercially reasonable efforts to respond to OvationCXM for Tier 2 Support issues in a timely manner.

b.  CX Activation Network. You are responsible for, but not limited to, providing (i) Your customer’s location (i.e., full street address, city, state, and zip code), (ii) two preferred dates and times to be advertised to technicians through the OvationCXM Software, (iii) scope of work in clear, simple language (in checklist or other form), (iv) any special tools, materials or hardware that may be needed to complete Work Order, (v) technical documentation and other instructions of the technologies requiring support (if a new technology not currently supported by OvationCXM), and (vi) Your contact information (name, phone number, and e-mail address) for use by the field technician during the scheduled appointment, if needed.

If field technicians do not accept a Work Order at the preferred dates and times but suggest alternative availability, You will contact Your customer to determine if the Work Order can be performed during the alternative availability of the field technician.

You will make Your personnel available in the OvationCXM Software to collaborate with OvationCXM in delivering Field Services to Your customers.

3.  Modifications; Fee Adjustment. The Parties agree that additional services may be added to SOW(s), upon mutual agreement in writing, from time to time.  OvationCXM may increase or decrease the pricing set forth in SOW(s) upon sixty (60) days’ written notice to You (“Fee Adjustment”).  If You do not accept the Fee Adjustment, You may cancel the applicable SOW on the date the Fee Adjustment becomes effective.

4.  Other Terms.

a.  OvationCXM is not a service company.  OvationCXM does not employ any field technicians in any country. Field technicians that provide Field Services to You and Your customers are doing so as independent contractors in the country where the field technician is domiciled. No field technician will perform Field Services outside of the country where that field technician is domiciled. OvationCXM’s role consists solely of providing access to and use of the Field Services through the OvationCXM Software to You and the field technician. Except to the extent, if any, that OvationCXM serves as a communications platform between You and field technicians in the performance of a Work Order and disburses payments from You to field technicians, OvationCXM does not take part in the interaction between You and field technician. OvationCXM does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any Work Order delivered by field technicians, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any field technician. OvationCXM makes no representations about the suitability, reliability, timeliness, or accuracy of the Work Orders requested by You and undertaken and/or provided by field technicians

b.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIELD SERVICES ARE PROVIDED TO YOU AND YOUR CUSTOMERS HEREUNDER “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF FIELD SERVICES RESIDES WITH YOU AND FIELD TECHNICIANS. OVATIONCXM HEREBY DISCLAIMS ALL OTHER CONDITIONS OR WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

c.  You acknowledge and agrees that OvationCXM does not guarantee that a field technician is an independent contractor of You, that You are solely responsible for determining whether, in any particular case, a field technician can lawfully be engaged by You as an independent contractor, and that OvationCXM is not responsible for and shall not be liable to any other party for such determination. If You are unsure of whether an independent contractor relationship with a field technician is appropriate in a given circumstance, You should consult with legal counsel of Your choosing. You represent that each field technician who performs a Work Order will be doing so as an independent contractor.

d.  You will not request, guide, or otherwise instruct field technicians to perform any actions that are in violation of the terms of any applicable laws, rules of Visa, MasterCard, Discover, American Express and any other entity that issues credit, debit or EBT cards or operates a debit or EBT network (“Associations”), Payment Card Industry Data Security Standards (“PCI DSS”), or the terms of any material agreement to which You may be subject to.

e.  You acknowledge that OvationCXM prohibits field technicians from directly or indirectly contacting You or Your customers after the completion of a Work Order.  Field technicians are prohibited from circumventing You or OvationCXM in any way.  For example, a field technician may not leave business cards, flyers, website addresses or other contact information with You or any of Your customers.  If You become aware of a field technician communicating with You or Your customers following the completion of a Work Order, You will notify OvationCXM in writing as soon as practicable.