YLOPO PLATFORM AS A SERVICE AGREEMENT

THIS YLOPO PLATFORM AS A SERVICE AGREEMENT (THE “TERMS”) IS A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND YLOPO LLC, A DELAWARE LIMITED LIABILITY COMPANY WITH A PRINCIPLE PLACE OF BUSINESS AT 4712 ADMIRALTY WAY, SUITE 548, MARINA DEL REY, CALIFORNIA 90292 (“SUPPLIER”).  BY CLICKING THE "I ACCEPT" BUTTON, EXECUTING AN ORDER FORM THAT INCLUDES THESE TERMS BY REFERENCE OR USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL “CUSTOMER” REFERS TO YOU INDIVIDUALLY.  IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL ITS AUTHORIZED USERS.  IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE. SUPPLIER MAY MAKE CHANGES TO THE SERVICES AT ANY TIME. IN ADDITION, SUPPLIER MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, AND SUPPLIER WILL POST NOTICE OF THE CHANGES ON THE LOG-IN SCREEN FOR THE SERVICE AND REQUIRE YOU TO ACKNOWLEDGE AND AGREE TO THE CHANGED TERMS. CUSTOMER’S CONTINUED USE OF THE SERVICES AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.  ALL REFERENCES TO THE “TERMS” INCLUDE ALL ORDER FORMS AND ALL OTHER SCHEDULES, EXHIBITS, ADDENDA OR OTHER DOCUMENTS ATTACHED TO THE TERMS OR ANY ORDER FORM OR INCORPORATED HEREIN OR THEREIN BY REFERENCE, INCLUDING ANY MODIFICATIONS, SUPPLEMENTS AND AMENDMENTS TO ANY OF THE FOREGOING.

1. DEFINITIONS.

1.  “Ancillary Services” means implementation or training services that Supplier may perform as described in an Order Form.

2. “Customer Client Data” has the meaning given in Section 5.3 (Customer Client Data).

3. “Customer Content” has the meaning given in Section 5.4 (Customer Content).

4. “Customer Materials” means all Customer Client Data, Customer Content and all other content, information, text, software, messages, advertising, marketing, and data used with the Supplier Platform or Services.

5.  “Customer Website” means Customer’s online and mobile website.  

6. “Documentation” means collectively, the description of the Subscription Services and any rules, policies and procedures of Supplier regarding use of the Services that are provided to Customer or otherwise made available through the Supplier Platform from time to time.  

7. “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

8. “Laws” means all laws and regulations (including but not limited to international, federal, state, or local laws or regulations relating to individual privacy, data protection, wiretapping, eavesdropping, collection of biometric information, or the distribution of email and other digital one-to-one communications and Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”)).

9. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

10. “Non-Supplier Products” means products, software and services (including but not limited to online, web-based CRM, ERP, mobile apps, or other business application subscription services) that are provided by Customer (including, but not limited to, mobile and other applications owned or developed by or for Customer) or third parties and interoperate with the Supplier Platform.

11. “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).

12. “Order Form” means an ordering documents for the Services that reference these Terms and is signed by both parties from time to time, including any modifications, supplements and amendments thereto.

13.  “Services” means the Subscription Services, Support Services, and any Ancillary Services.

14. “Subscription Term” means the subscription period for Customer’s use of the Service set forth in an Order Form.

15. “Subscription Service” means services for access and use of the Supplier Platform and Customer Website as described in these Terms, such services exclude any Open Source Software that may be used to provide the Subscription Service and all Non-Supplier Products.

16. “Supplier Platform“ means the software platform described in the Documentation and all patches, corrections, updates and upgrades made generally available by Supplier to its customers as part of Support Services.  Supplier Platform does not include Non-Supplier Products, Customer Materials or Third Party Data.

17. “Support Services” means the support and maintenance services offered by Supplier and purchased by Customer separately pursuant to an Order Form.

18. “Third Party Data” means information, data or content from third party licensors or publicly available sources and provided to Customer for use with the Supplier Platform.

2. SUBSCRIPTION SERVICES.  

1. Supplier Platform.  Supplier offers Customer access to the Supplier Platform on an “as a service” basis, which enables (i) hosting of the Customer Website and (ii) use of other functionality to which Customer subscribes under an Order Form all as further described in the applicable Documentation.  Use of the Supplier Platform is subject to Customer’s compliance with these Terms and the Documentation and is limited to the territory specified in the applicable Order Form (“Territory”).

2. Orders.  During the applicable Subscription Term and subject to the terms and conditions of these Terms, use of the Supplier Platform may be ordered by Customer pursuant to one or more Order Form.  Any changes to the scope of the Order Form must be documented in a written change order or amendment to the Order Form and signed by authorized representatives of the applicable parties thereto.  Terms and conditions contained in any Customer purchase orders or other similar documents shall not apply to any Order Form nor these Terms and shall be null and void.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Supplier regarding any future functionality or features.  The terms and conditions of these Terms and the applicable Order Form are intended to complement each other; to the extent they conflict, the terms and conditions of the applicable Order Form shall control; provided, however, that the applicable Order Form only may change the terms of these Terms if the Order Form specifically states the particular provision of these Terms that such Order Form changes and such change only applies to such Order Form.  

3. Subscription.  Supplier grants to Customer, during the applicable Subscription Term , non-exclusive access and use in the Territory of the Supplier Platform solely for the benefit of Customer and in accordance with the Documentation and these Terms.  The foregoing rights granted to Customer only may be exercised by Customer employees, (and consultants or contractors solely with Supplier’s prior written consent) (collectively, “Authorized Users”) to exercise the rights granted in this Section 2.3, provided that the Authorized Users are subject to binding obligations of confidentiality and non-disclosure with Customer protecting the Supplier Platform and other Confidential Information of Supplier, which obligations are consistent with Customer’s obligations to Supplier under these Terms and are approved by Supplier pursuant to the last sentence of Section ‎2.4, if applicable.  Customer is responsible to Supplier for the performance of the obligations of, and any breach by, the Authorized Users.  Customer’s use of the Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Client Data.  Any such limitations will be specified in the Order Form or in the Documentation.  Supplier retains and reserves ownership to the Supplier Platform, Documentation, and all intellectual property rights therein and thereto.

4. User Credentials.  Supplier will use commercially reasonable efforts to provide Customer with tools or processes necessary for the creation of user credentials (user ID’s and passwords) to access the Supplier Platform for Authorized Users, which Customer will administer.  Customer will use industry standard practices to limit the use of each username/password pair to the individual to whom it has been assigned.  Customer and its users are responsible for password protection and security as well as any acts or omissions arising out of use of any such user credentials.  Supplier has the right to deny access to persons who are not Authorized Users.  Non-Customer employees are subject to approval by Supplier to screen for direct competitors of Supplier.

5. Lead Generation.  Customer will determine and instruct Supplier regarding its selection and use of (and any contractual requirements with) social media platforms, search engine and other marketers, and advertising partners to assist Customer with leads for customers who, via a registration process, indicate they are seeking help in selling and/or buying a home or property (each a “Lead”) as set forth in the Order Form.   Leads will be generated from sources determined at the discretion of Customer and in the quantities as specified in the Order Form.  Customer represents and warrants that (i) it is responsible for all Leads, including but not limited to the quality of the Leads and that all Leads comply with applicable Laws; and (ii) it will comply with any third party terms and conditions applicable to Customer’s use of the Services, including but not limited to third party sources for Leads. 

6. Use of Customer Materials and Non-Supplier Products.  The Supplier Platform contains functionality that enables Customer to load Customer Materials into the Supplier Platform for use with Customer’s clients or potential clients (“Customer Clients”) and may contain features that allow the Supplier Platform to interoperate with Non-Supplier Products.  Customer agrees to provide and use Customer Materials and Non-Supplier Products in accordance with the Documentation and these Terms.  Notwithstanding anything to the contrary in these Terms, Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Materials used with the Services.  In addition, Customer further acknowledges and agrees that the nature of the Services requires that Customer Materials be transmitted across public networks and telecommunication lines that are not controlled by Supplier and that Supplier cannot guarantee the security of the Customer Materials, Third Party Data and other information that is transmitted through, or received by, the Supplier Platform through such public networks.

7. Restrictions.  Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Service; (b) modify, translate, or create derivative works based on any element of the Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) use the Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Authorized Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Service without Supplier's prior written consent; (g) use the Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Service; (i) introduce any Open Source Software into the Service; or (j) attempt to gain unauthorized access to the Service or their related systems or networks.

8. Reservation of Rights.  Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel.  All rights not granted in these Terms are reserved by

3 NON-SUPPLIER PRODUCTS.

1. Use of Non-Supplier Products.  Supplier or third parties may from time to time make Non-Supplier Products available to Customer.  Any acquisition by Customer of any such Non-Supplier Products, and any exchange of data between Customer and any provider of a Non-Supplier Product, is solely between Customer and the applicable provider of the Non-Supplier Product.  Supplier does not warrant or support any Non-Supplier Product, whether or not they are designated by Supplier as “certified” or otherwise, except as specified in an Order Form.  If Customer installs or enables any Non-Supplier Product for use with Services, Customer acknowledges that Supplier may allow providers of that Non-Supplier Product to access Customer Materials as required for the interoperation and support of such Non-Supplier Product with the Services.  Supplier shall not be responsible for any disclosure, modification or deletion of Customer Materials resulting from any such access by the providers of Non-Supplier Products. Customer is responsible for ensuing Non-Supplier Products comply with all applicable Laws.

2. Supplier Access Codes.  To the extent that Supplier requires that Customer grant Supplier authorizations, passwords or other user credentials to a Non-Supplier Product (“Supplier Access Codes”) to retrieve Customer Materials or to enable interoperability with the Service, Customer shall promptly provide such Supplier Access Codes. Supplier shall not share, reassign, divulge or disclose any Supplier Access Codes except to Supplier employees or contractors specifically engaged in the performance of the Services. Supplier Access Codes shall constitute Customer’s Confidential Information under these Terms.

1. Third Party Hosting.  Supplier may use the services of one or more third parties to deliver any part of the Services.  Supplier will pass-through any warranties to the extent that Supplier receives any from its then current third-party service provider that it can provide to Customer.  Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.

4. SECURITY.

1. No Circumvention of Security.  Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Service.  Customer will immediately notify Supplier of any breach, or attempted breach, of security known to Customer.  

2. Security.  Customer acknowledges that, notwithstanding any security precautions deployed by Supplier, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services, Customer Website and Customer Materials.  Supplier cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.  Supplier shall not (a) modify Customer Materials except as instructed by Customer, (b) disclose Customer Materials except as compelled by law or as otherwise permitted by Customer, or (c) access Customer Materials except to provide the Services, as allowed by law, to prevent or address service or technical problems, detect and response to fraud or security issues, or at Customer's request.

5. CUSTOMER OBLIGATIONS.

1. Customer Responsibilities.  Customer, its employees, agents, contractors and representatives (including all Authorized Users) shall comply with all rules, policies and procedures governing the Services and any use thereof, including without limitation the Customer responsibilities listed in this Section 5 (collectively, the “Customer Responsibilities”).  Customer remains fully and unconditionally responsible for the acts and omissions of such individuals.  Customer agrees to actively cooperate with Supplier with respect to the delivery of the Services, including but not limited to providing timely feedback, approvals, assistance and information reasonably required for Supplier to successfully deliver the Services.  Supplier shall not be responsible for any delay, failure to perform, or alteration of the Services due to any act, omission or failure to perform by Customer or any of their respective employees, agents, customers, contractors or representatives, and Customer may be responsible to Supplier for additional fees and costs associated therewith.  Customer shall be solely responsible, at Customer’s sole cost and expense, for procuring and maintaining the hardware, software and Internet connectivity necessary for Customer to connect to and use the Supplier Platform.

2. Customer Obligations.  Customer is responsible for (a) obtaining, deploying and maintaining all computer hardware, software, modems, routers and other communications equipment necessary for Customer and their respective Authorized Users to access and use the Services via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Services via the Internet; (c) providing adequate notices and/or policies that comply with all applicable Laws when collecting, using, storing or disclosing personal information and honoring privacy rights requests and preferences,  (d) determining its obligations under applicable Law including, without limitation, its obligations under the TCPA which may apply when Customer contacts recipients for the purposes of marketing services to them through automated systems. As such, Customer agrees that before providing any Leads to Supplier and before instructing Supplier to send any marketing-related message, it shall obtain express written consent from each recipient of the marketing message, which acknowledges the consent of the recipient to the on-going receipt of text or pre-recorded voice messages related to Customer’s services, and (e) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in these Terms or an Order Form, Supplier shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.

3. Customer Client Data.  Customer agrees only to provide the following data elements regarding Customer Clients: names, email address, physical address, general location the customer is  and phone numbers, each obtained by Customer through lead generation sources authorized by Customer with Customer accurately identifying such lead generation source (collectively, the “Customer Client Data”).  Customer Client Data shall not include: any other data elements, including, without limitation, any other personally identifiable information, sensitive data, precise location data, payment cards (e.g., credit, debit, etc. cards), health information, financial account information, social security numbers or other government issued identification numbers or passwords linked to email addresses necessary to access an account.  Customer is solely responsible for (a) the accuracy of the Customer Client Data, (it being acknowledged by Customer that Supplier has no obligation to review the Customer Client Data); (b) maintaining the quality of the data elements provided to the Supplier Platform within the specifications of the Supplier data ingestion and (c) providing transparent notification of the data and security practices and obtaining any required consents (including but not limited to obtaining opt-in consent to send text messages and consent to send marketing materials), providing any required notices, or otherwise taking all actions required by applicable law for Customer to provide the Customer Client Data to Supplier and for Supplier to use the Customer Client Data as set forth in these Terms.  Supplier has no responsibility with respect to security of the data and information, Leads, compliance with Laws, including, without limitation, California Consumer Privacy Act CAN-SPAM, Telephone Consumer Protection Act and similar Laws and notifications for data breach.  Customer agrees that it has obtained, and will maintain as valid throughout the Subscription Term, any and all authorizations, permissions and informed consents, including those of individuals about whom the Services may process personal data or personally identifiable information, as may be necessary under the applicable Laws, to allow Supplier to lawfully collect, handle, retain, process and use such data, including the Customer Client Data, in the manners and for the purposes of this engagement. 

4. Customer Content; Client Customers.  The Supplier Platform contains functionality that enables Customer to provide into the Supplier Platform or, access via the Supplier Platform, graphics, still photos, videos, text, images, offers, promotions, advertising and other content (the “Customer Content”).  All Customer Content must comply with all Laws applicable to such Customer Content and the Acceptable Use and Content Policy set forth in Section 5.6.  Customer shall be responsible for creating and providing to Supplier the Customer Content for delivery (it being acknowledged by Customer that Supplier has no obligation to review the Customer Content).  Customer acknowledges and agrees that:  (i) Customer has the right to provide and use (and permit Supplier the right to use according to the terms of these Terms) the Customer Client Data and Customer Content for use in connection with any of the Supplier Platform, the Non-Supplier Products and the Services (including but not limited to using Customer Client Data for analytics and modeling); (ii) Customer Content shall be delivered only to Customer Customers that have consented to receive the applicable Customer Content; and (iii) Customer’s use of the Customer Content and the Customer Client Data (including but not limited to delivery to Supplier and use of such Customer Content and Customer Client Data by Supplier as authorized by Customer under these Terms) complies with all Customer privacy policies and all applicable Laws.  To the extent that a Customer Client elects to opt-out of Customer marketing communications at any time, Customer shall be solely responsible for updating the Customer Client Data file provided to the Supplier Platform. 

5. Customer Website and Customer Materials.  Customer is solely responsible for the Customer Website, Customer Materials, and its use of the Services including but not limited to compliance with any Laws applicable to the Customer Website, Customer Materials, and its use of the Services.  Customer is solely responsible for (i) the Customer Website, Customer Materials, and its use of the Services ; and (ii) obtaining and maintaining all licenses, notices, consents, consumer preferences, records and permits required to operate the business advertised on the Customer Website and through the Supplier Platform.  Customer agrees to include a terms of use on the Customer Website in substantially the form attached as Exhibit A (the “Template Customer Website Terms of Use”).  Supplier makes no warranties with respect to (i) the enforceability of the Template Customer Website Terms of Use; or (ii) whether use of the Template Customer Website Terms of Use is in compliance with applicable Laws.  All use and implementation of the Template Customer Website Terms of Use is the responsibility of Customer.

6. Acceptable Use Policy.  Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Service.  Customer acknowledges and agrees:  (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Service, including without limitation the provision and storage of Customer Materials; (b) not to send or store data on or to the Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Services or another's computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use the Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Service or interfere with other ability to access or use the Service; (g) not to distribute, promote or transmit through the Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of the Service or another person or entity's use and enjoyment of similar services; (j) not to use the Service in any manner that impairs the Service, including without limitation the servers and networks on which the Service is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Service and Supplier’s service providers; and (l) to use the Services only in accordance with the Documentation.  Customer acknowledges and agrees that Supplier neither endorses the contents of any Customer communications or Customer Materials nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby.  Supplier may remove any violating content posted or stored using the Service or transmitted through the Service, without notice to Customer.  Notwithstanding the foregoing, Supplier does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Materials, or any other information or data input into or stored in the Service for completeness, integrity, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Materials input into the Services.  Supplier reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in these Terms at any time.  Supplier may deliver notice of such updated requirements to Customer via e-mail or through the Services.  Customer’s continued access to and use of the Services following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.  Supplier may upon written notice to Customer amend this Section 5.6.  

7. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Supplier to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Supplier of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Supplier at the e-mail addresses specified by its Authorized Users for login purposes. In addition, Customer agrees that Supplier may rely and act on all information and instructions provided to Supplier by Authorized Users from the above-specified e-mail address.

8. Squarespace.  The Services include and make use of certain functionality and services provided by Squarespace, Inc. (“Squarespace”) as part of the Services (the “Squarespace Services”).  Customer’s use of the Squarespace Services is subject to Squarespace’s then current Terms of Service (https://www.squarespace.com/terms-of-service) (the “Squarespace Terms of Service”) and Customer agrees to be bound by the Squarespace Terms of Service. 

9. Temporary Suspension.  Supplier may temporarily suspend Customer’s or their respective Authorized Users’ access to the Services in the event that either Customer any of their Authorized Users is engaged in, or Supplier in good faith suspects Customer or any of their Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Supplier will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Supplier’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that Supplier shall not be liable to Customer, any of its Authorized Users, or any other third party if Supplier exercises its suspension rights as permitted by this Section.  Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Supplier’s reasonable satisfaction, Supplier shall reinstate Customer’s and their respective Authorized Users’ access and use of the Services.  Notwithstanding anything in this Section to the contrary, Supplier’s suspension of Services is in addition to any other remedies that Supplier may have under these Terms or otherwise, including but not limited to termination of these Terms for cause.  Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Supplier may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.

6. AVAILABILITY; SUPPORT SERVICES. 

Subject to the terms and conditions of these Terms, Supplier will use commercially reasonable efforts to make the Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Supplier will use commercially reasonable efforts to provide advance notice, and (b) routine maintenance at times  specified by Supplier, and (c) any unavailability caused by circumstances of Force Majeure described in Section 14.12.  Certain enhancements to the Services made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge.  However, the availability of some new enhancements to the Services may require the payment of additional fees, and Supplier will determine at its sole discretion whether access to any other such new enhancements will require an additional fee.  These Terms will apply to, and the Service includes, any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the Service subsequently provided by Supplier to Customer hereunder.  Supplier may make Support Services offerings available to its customers.

7. FEES AND PAYMENT.

1. Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods Supplier supports, including but not limited to (i) the initial set-up fee set forth in the Order Form (the “Initial Set-up Fee”); and (ii) monthly fees set forth in the Order Form (collectively referred to as the “Total Monthly Fee”).  Except as otherwise specified in these Terms or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable.  All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.  Supplier reserves the right to increase prices with ninety (90) days prior notice.

2. Invoices and Payment. All fees for Services will be invoiced in advance and in accordance with the applicable Order Form.  Customer is responsible for providing complete and accurate billing and contact information to Supplier and notifying Supplier of any changes to such information.  If Supplier requires credit card billing, Customer shall provide Supplier with valid and updated credit card information.  For credit card billing, Customer hereby authorizes Supplier to charge that credit card during the Subscription Term.  Except as otherwise specified in the initial Order Form, the Initial Set-up Fee is due and payable upon the Order Effective Date (as defined in the initial Order Form).  For the first month of the Subscription Term, if the Subscription Term begins after the first of the month, Customer shall pay the pro rata share of the Total Monthly Fee for the first month of the Subscription Term, which shall be due and payable upon the Order Effective Date.  After the first month, for credit card billing, Customer will be charged for the Total Monthly Fee between the first day and the seventh day of the calendar month.  The Total Monthly Fee is a reoccurring fee and is due each month even in absence of an invoice from Supplier.    

3. Overdue Charges.  If Supplier does not receive fees by the due date, then at Supplier’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Supplier may condition future purchases of Services and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoices and Payment).

4. Suspension of Service. If any amounts owed by Customer for the Services are seven (7) or more days overdue, Supplier may, without limiting Supplier’s other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Services or parts of the Services until such amounts are paid in full.

5. Payment Disputes. Supplier agrees that it will not exercise its rights under Section 7.3 (Overdue Charges) or Section 7.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.

6. Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with these Terms or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income.  Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations.  Fees and charges imposed under these Terms or under any order form or similar document ancillary to or referenced by these Terms shall not include Taxes except as otherwise provided herein.  Customer shall be responsible for all of such Taxes.  If, however, Supplier has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Supplier unless Customer has furnished Supplier with valid tax exemption documentation regarding such Taxes at the execution of these Terms or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by these Terms.  Customer shall comply with all applicable tax laws and regulations.  Customer hereby agrees to indemnify Supplier for any Taxes and related costs paid or payable by Supplier attributable to Taxes that would have been Customer’s responsibility under this Section 7.6 if invoiced to Customer.  Customer shall promptly pay or reimburse Supplier for all costs and damages related to any liability incurred by Supplier as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section 7.6 shall survive the termination or expiration of these Terms.

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

1. Mutual Representations and Warranties.  Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.  Customer represents and warrants to Supplier that Customer (x) owns or has acquired, and will maintain all necessary rights, power, and authority to provide and use, all of the Customer Materials;(y) has all necessary rights (including by having given all notices and obtained all consents required by Laws) to send marketing communications to Customer Clients; and (z) will comply, at Customer’s sole cost, with all applicable Laws and will hold and fully comply with all consents, licenses, permits and approvals required by Customer to operate its business and otherwise perform its duties and obligations under these Terms.

2. Evaluations of New Services.  From time to time Supplier may invite Customer to try, Supplier products or services that are not generally available to Supplier customers (“Non-GA Services”).  Customer may accept or decline any such trial in its sole discretion.  Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import.  Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors (but shall not knowingly contain any undisclosed Malicious Code), and may be subject to additional terms that shall be provided by Supplier to Customer prior to or concurrent with Supplier’s invitation to the applicable Non-GA Services.  Non-GA Services are not considered “Services” hereunder.  Customer has the right to discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.  Pricing for Non-GA Services or similar services will increase following the beta period. 

3. Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE SERVICES, SUPPORT SERVICES, ANCILLARY SERVICES AND ANY NON-GA SERVICES ARE PROVIDED ON AN AS-IS BASIS.  CUSTOMER’S USE OF THE SERVICE, SUPPORT SERVICES, ANCILLARY SERVICES AND NON-GA SERVICES IS AT ITS OWN RISK.  SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THE EXPRESS WARRANTIES MADE BY SUPPLIER IN SECTION 9 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY.  ANY SOFTWARE PROVIDED THROUGH THE SERVICES IS LICENSED AND NOT SOLD.
   
   

   NO AGENT OF SUPPLIER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUPPLIER AS SET FORTH HEREIN.  SUPPLIER DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES OR NON-GA SERVICES  WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES OR NON-GA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES AND NON-GA SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES AND NON-GA SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AND NON-GA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND NON-GA SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.  SUPPLIER MAY RELY ON THIRD PARTY DATA IN PROVIDING THE SUBSCRIPTION SERVICES; SUPPLIER DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, USEFULNESS OR AVAILABILITY OF THE SUBSCRIPTION SERVICES OR ANY THIRD PARTY DATA USED TO PROVIDE THE SUBSCRIPTION SERVICES.

   CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS (INCLUDING, WITHOUT LIMITATION, ANY INVESTMENT DECISIONS, PURCHASES OR TRANSACTIONS) MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE SERVICES.  CUSTOMER ACKNOWLEDGES AND AGREES THAT (a) USE OF THE SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; (b) SUPPLIER AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE SERVICES, DELAYS OR ERRORS CAUSED BY CUSTOMER'S USE OF THE SERVICES, OR ANY PART THEREOF; (C) SUPPLIER IS NOT A BROKER AND IS NOT PROVIDING ANY INVESTMENT ADVICE, IS NOT EXECUTING, ACCEPTING OR DIRECTING ANY TRADES FOR OR ON BEHALF OF ANY PERSON OR ENTITY, IS NOT PROVIDING ANY CLEARING SERVICES, IS NOT PROVIDING ANY TRADE OR ORDER CONFIRMATION AND IS NOT PROVIDING ANY SERVICES THAT REQUIRE LICENSING OR REGISTRATION WITH ANY REGULATORY BODY OR EXCHANGE; AND (D) SUPPLIER SHALL NOT BE RESPONSIBLE FOR (i) THE PROPER EXECUTION OR CLEARING OF ANY ORDER SENT USING THE SERVICES OR (ii) THE MANAGEMENT AND OVERSIGHT OF ANY AND ALL ORDERS PLACED, TAKEN AND/OR SUBMITTED BY CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE CANCELLATION OF ANY SUCH ORDERS AND/OR THE OPENING AND CLOSING OF ANY TRADING ACCOUNTS.  CUSTOMER SHALL HOLD SUPPLIER AND ITS DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF CUSTOMER'S USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, THE TRANSMISSION OF ANY ORDER USING THE SERVICES.

9. INDEMNIFICATION.

1. Supplier Indemnity.

1. General.  During the Subscription Term, Supplier, at its expense, shall defend Customer and their respective officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Services infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim.  Supplier’s obligations under this Section are conditioned upon (i) Supplier being promptly notified in writing of any claim under this Section, (ii) Supplier having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Supplier’s expense and reasonable request) in the defense of such claim.  In no event shall Customer settle any claim without Supplier’s prior written approval.  Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Supplier’s right to control the defense and settlement.

2. Mitigation.  If any claim which Supplier is obligated to defend has occurred, or in Supplier’s determination is likely to occur, Supplier may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Services, (b) substitute a functionality equivalent, non-infringing replacement for such the Services, (c) modify Services to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Services due to such claim and the remaining days in the then-current Subscription Term.

3. Exclusions.  Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Materials; (ii) use of the Service in combination with any Customer Materials, Non-Supplier Product, or software, hardware, network, system, content or data not supplied by Supplier where the alleged infringement relates to such combination, (iii) any modification or alteration of the Service other than by Supplier, (iv) Customer’s continued use of the Service after Supplier notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; and (vi) Non-Supplier Products, Customer Materials, Third Party Data and the Customer Website.

4. Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SUPPLIER WITH RESPECT THERETO.
   

2. Customer Indemnity.  At its sole cost and expense, Customer shall indemnify and defend Supplier and its affiliates and licensors and their respective officers, directors, employees, agents, representatives, successors and assigns (“Supplier Indemnified Parties”)  from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Materials (and the exercise by Supplier of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s or an Authorized User’s use or alleged use of the Service (i) other than as permitted under these Terms and (ii) in violation of applicable Laws; (c) any actual or alleged personal or bodily injury (including, without limitation, illness or death) or damage to tangible property caused by the negligence or willful misconduct of Customer; (d)  the occurrence of any of the exclusions set forth in Section 9.1(c); (e) Customer’s breach of the Squarespace Terms of Service; (f) Customer’s breach of Section 5; (g) Customer’s use of the Template Customer Website Terms of Use; (h) the right (or lack thereof) to send marketing communications to Customer Clients; and (i) the operation of the Customer Website.  Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim.  Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Supplier providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim.  In no event shall Supplier settle any claim without Customer’s prior written approval.  Supplier may, at its own expense, engage separate counsel to advise Supplier regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.

10 CONFIDENTIALITY. 

1. Confidential Information.  “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of these Terms and any Order Form. Confidential Information of Supplier shall include the Service, the documentation, the pricing, and the terms and conditions of this agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.  

2. Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party.  The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it.  The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under these Terms.  Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section.  The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.  

3. Exceptions to Confidential Information.  The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which:  (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party.  Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

4. Injunctive Relief.  The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

11. PROPRIETARY RIGHTS. 

1. Services.  As between Supplier and Customer, all right, title and interest in the Services and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Services, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Supplier or Supplier’s licensors and providers, as applicable.  Customer hereby does and will irrevocably assign to Supplier all evaluations, ideas, feedback and suggestions made by Customer to Supplier regarding the Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.  

2. MLS Listings.  The Services use content (the “MLS Content”) provided by MLS Listings Inc. (“MLS”) and this MLS Content is included in the definition of “Third Party Data”  Customer agrees to enter into a licensing agreement with MLS and Supplier for MLS to provide the MLS Content and Customer is responsible for all costs and fees associated with the MLS Content.  The following statement applies to all content in the Services that is licensed from MLS: “Property Information © 2020 MLSListings Inc. All Rights reserved.  Certain information contained herein is derived from information, which is the licensed property of, and copyrighted by, MLSListings Inc.”

3. Customer Materials.  As between Supplier and Customer, all right, title and interest in the Customer Materials and all Intellectual Property Rights therein, belong to and are retained solely by Customer.  Customer hereby grants to Supplier a limited, non-exclusive, royalty-free, worldwide license to use the Customer Materials and perform all acts with respect to the Customer Materials as may be necessary for Supplier to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Customer Materials as a part of the Aggregated Statistics (as defined in Section 11.5 below).  To the extent that receipt of the Customer Materials requires Supplier to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Supplier hereby agrees to access and use the Customer Materials solely for Customer’s benefit and as set forth in these Terms. As between Supplier and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Materials.

4. Aggregated Statistics.  Notwithstanding anything else in these Terms or otherwise, Supplier may monitor Customer’s use of the Services and use data and information related to such use, Customer Materials in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”).  As between Supplier and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Supplier.  Customer acknowledges that Supplier will be compiling Aggregated Statistics based on Customer Materials and information input by other customers into the Service and Customer agrees that Supplier may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.  

5. Supplier Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly, including without limitation, in connection with Supplier’s performance of the Ancillary Services hereunder (“Supplier Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Supplier.  Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Supplier Developments is not, by operation of law or otherwise, vested in Supplier, Customer hereby assigns and agrees to assign to Supplier all right, title and interest in and to such Supplier Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.

6. Further Assurances.  To the extent any of the rights, title and interest in and to Feedback or Supplier Developments or Intellectual Property Rights therein cannot be assigned by Customer to Supplier, Customer hereby grants to Supplier an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest.  If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Supplier those non-assignable and non-licensable rights, title and interest.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Supplier may reasonably request, to perfect ownership of the Feedback and Supplier Developments.  If Customer is unable or unwilling to execute any such document or take any such action, Supplier may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact.  The foregoing appointment is deemed a power coupled with an interest and is irrevocable.  

7. License to Customer Website.  Subject to Customer’s compliance with these Terms, Supplier hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Customer Website.  Subject to Customer’s compliance with these Terms, Supplier hereby grants Customer a limited, non-exclusive, non-transferable, revocable license after the Subscription Term to use only that content on the Customer Website that is (i) created by Supplier for Customer and (ii) provided by Supplier to Customer upon termination of these Terms at Supplier’s sole discretion.  Notwithstanding any other provision of these Terms: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, designs, layouts, libraries, know-how, techniques and expertise (“Tools”) used by Supplier to develop the Customer Website, and to the extent such Tools are delivered with or as part of the Customer Website, they are licensed, not assigned, to Customer, on the same terms as the Customer Website; and (ii) the term Customer Website” shall not include the Tools.  

8. Domain Names.  Customer may provide Supplier with a domain name registered to Customer for the Customer Website (a “Customer Provided Domain”).  Alternatively, Supplier can work with third party registrars to provide Customer with domain services and Supplier may provide Customer with a domain name for the Customer Website (a “Supplier Provided Domain”).  When Customer provides or uses a Customer Provided Domain or a Supplier Provided Domain with the Services, Customer agrees to be bound by the relevant registrar’s terms and conditions and any breach of the such terms and conditions is a breach of these Terms.  Customer’s use of Customer Provided Domains or Supplier Provided Domains with the Services is subject to the policies, including without limitation the dispute resolution policies, of the Internet Corporation for Assigned Names and Numbers.  Customer is responsible for the Customer Provided Domain or the Supplier Provided Domain, including but not limited to any fees or costs associated with the Customer Provided Domain or Supplier Provided Domain. 

9. Conveyance of Supplier Provided Domain.  If Supplier provides Customer a Supplier Provided Domain, then Supplier hereby sells, assigns, transfers, conveys, and delivers to Customer and Customer hereby accepts all of Supplier’s right, title, and interest in, to and under the intellectual property rights that are not patents or trademarks to the Supplier Provided Domain.  Notwithstanding the foregoing, Supplier will remain registration and control of Supplier Provided Domain during the Subscription Term in order to provide the Services to Customer.

10. License to Customer Provided Domain or Supplier Provided Domain.  During the Subscription Term, Customer hereby grants to Supplier a limited, non-exclusive, royalty-free, worldwide license to use the Customer Provided Domain or Supplier Provided Domain and perform all acts with respect to the Customer Provided Domain or Supplier Provided Domain as may be necessary for Supplier to provide the Services to Customer.  Supplier shall provide Customer with access to accounts, user names, and passwords issued by the applicable registrar or service provider that may be necessary to effectively manage any Customer Provided Domain as may be necessary for Supplier to provide the Services to Customer. 

11. Transfer of Registration.  Upon termination of the Subscription Term and upon Customer’s request, Supplier shall request that any Internet domain name registrar take whatever actions are necessary to effectively transfer the registration and control of the Supplier Provided Domain to Customer as the Customer and owner of the Supplier Provided Domain, including without limitation taking steps necessary in accordance with the domain name transfer procedures of the applicable Internet domain name registrar.  Upon termination of the Subscription Term and upon Customer’s request, Supplier shall provide Customer with access to accounts, user names, and passwords issued by the applicable registrar or service provider that may be necessary to effectively take control of or otherwise manage the Supplier Provided Domain.  Customer may transfer registrations to any available registrar according to the terms and conditions of transfer provided by such registrar.

12. LIMITATION OF LIABILITY.

1. No Consequential Damages.  NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF SUPPLIER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICE, ANCILLARY SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF.  SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

2. Limits on Liability.  NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO SUPPLIER UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM.

3. Essential Purpose.  CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

13. TERM AND TERMINATION.  

1. Term.  The term of these Terms commence on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms.  Except as otherwise specified in the applicable Order Form, Subscription Terms for all Authorized Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least ninety (90) days prior to the expiration of the then current Subscription Term.  The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Supplier has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.

2. Termination for Cause.  A party may terminate these Terms (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing  or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree.  Upon any termination for cause by Customer, Supplier shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date.  Upon any termination for cause by Supplier, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to Supplier for the period prior to the effective date of termination.

3. Termination for Convenience.  Each party shall have the right to terminate any Subscription Term for convenience on at least ninety (90) days prior written notice to the other Party; provided, however, that the fees, including any pre-paid fees, are non-refundable.  .  

4. Effects of Termination.  Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Service and Supplier's performance of all Support Services and Ancillary Services shall cease; (b) all Order Forms shall terminate; and (c) all fees and other amounts owed to Supplier shall be immediately due and payable by Customer. Upon Customer’s request made within ninety (90) days after the effective date of applicable termination or expiration, Supplier shall make any Customer Materials stored on the Service available for download by Customer in the format in which it is stored in the Service. After such 90-day period, Supplier shall have no obligation to maintain or provide any Customer Materials and may thereafter, unless legally prohibited, delete all Customer Materials in its systems or otherwise in its possession or under its control.  Except in the case of termination by Supplier due to Customer’s breach, Customer may request that Supplier provide a reasonable level of transition services in order to assist Customer in transitioning to another service provider.  Any such services shall be provided, if at all, in Supplier’s sole discretion and subject to Customer and Supplier agreeing to a separate written agreement regarding the scope, duration and cost of such transition services.  In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Materials) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. 

5. Survival.  This Section and Sections 1, 2.7, 2.9, 7, 8, 9, 10, 11,13.4, 14 shall survive any termination or expiration of these Terms. 

14. MISCELLANEOUS.

1. Notices.  All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the addresses set forth in the Order Form (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery.  All communications and notices to be made or given pursuant to these Terms shall be in the English language.

2. Governing Law.  These Terms and the rights and obligations of the parties to and under these Terms shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules.  The number of arbitrators shall be one (1).  The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator.  If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators.  The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings.  The seat, or legal place of arbitration shall be California, United States.  Notwithstanding the foregoing, Supplier has the right to pursue equitable relief in the state and federal courts located in California, and Customer agrees to the exclusive jurisdiction and venue of such courts.

3. Publicity. Supplier has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Supplier business development and marketing efforts, including without limitation Supplier’s web site.

4. No Solicitation of Employees.  Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Supplier without Supplier’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites. 

5. Export.  The Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Supplier and its licensors make no representation that the Service is appropriate or available for use in other locations. Any diversion of the Customer Materials contrary to law is prohibited. None of the Customer Materials, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

6. Anti-Corruption; OFAC.  Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Supplier in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Supplier.  Customer represents and warrants to Supplier that none of (a) Customer, (b) each person or entity owning an interest in any of them nor (c) their respective personnel are (x) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (y) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.

7. Waiver.  No term or provision of these Terms shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

8. Severability.  If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

9. Assignment.  Customer may not assign its rights or delegate its obligations under these Terms, any Order Forms to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Supplier, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns.

10. Relationship of the Parties.  Supplier is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties.  Neither party has the authority to bind the other or to incur any obligation on its behalf.  Customer shall provide its own materials, tools, equipment, software, content and data necessary to use the Supplier Platform.

11. Attorneys’ Fees.  In any action to enforce these Terms, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

12. Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; pandemic; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.

13. Entire Agreement.  These Terms, including all applicable Order Forms, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.