Software as a Service Agreement -- Individual Subscriber

This Software as a Service Agreement (this “Agreement”) is by and between InnovationForce Inc., a Delaware corporation with offices located at 4804 Page Creek Lane, Durham, NC 27703 (“Provider”) and you, an individual (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Provider provides access to the Services (as defined below) to its customers; and

WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

(a)“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

(b)“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Services.

(c)“Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services, including end user documentation relating to the Services.

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

(e) “Services” means the software-as-a-service offering known as InnovationWorks, as amended by Provider in its sole discretion from time to time. The Services include, as applicable, the InnovationWorks freemium software-as-a-service product available at hangar.innovationforce.io (“Freemium Product”) and the paid version of the InnovationWorks software-as-a-service product available at subscribers.innovationforce.io (“Paid Product”).

(f) “Third-Party Products” means any third-party products provided with or incorporated into the Services.

2. Access and Use; Provision of Services.

(a) Provision of Access. Subject to and conditioned on Customer’s compliance with all terms and conditions of this Agreement, and with respect to the Paid Product, Customer’s payment of Fees, Provider hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the Services during the Term, solely for use by Customer in accordance with the terms and conditions herein. Such use is limited to Customer’s personal, non-commercial use. Provider shall provide the Customer the necessary credentials, passwords and network links or connections to allow Customer to access the Services. Customer is solely responsible for safeguarding any such credentials, passwords and network links or connections and for any activities or actions carried out using Customer’s account and/or Customer’s password. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of Customer’s failure to safeguard any such credentials, passwords and network links or connections or any activities or actions carried out using Customer’s account and/or Customer’s password.

(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s personal, non-commercial use in connection with its use of the Services.

(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall comply with Provider’s Acceptable Use Policy contained herein. Notwithstanding the generality of the foregoing, Customer shall not at any time, directly or indirectly:

(i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part;

(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation;

(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;

(iv) remove any proprietary notices from the Services or Documentation; or

(v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

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

(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s access to any portion or all of the Services if:

(i) Provider reasonably determines that

(A) there is a threat or attack on any of the Provider IP;

(B) Customer’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider;

(D) subject to applicable law, Customer has made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy or similar proceeding; or

(E) Provider’s provision of the Services to Customer is prohibited by applicable law;

(ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or

(iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.

(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may

(i) make Aggregated Statistics publicly available in compliance with applicable law, and

(ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer.

(g) Updates. Provider may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Provider has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Customer shall promptly download and install all Updates and Customer hereby acknowledges and agrees that the Services or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.

(h) Content on the Services. All content posted or made available on the Services by other users, whether publicly posted or privately transmitted, is the sole responsibility of the user who posts or makes available such content. Provider does control the content posted via users and cannot take responsibility for such content. Any use or reliance on any content or materials posted by other users via the Services or obtained by Customer through the Services is at Customer’s own risk, including without limitation risk of faulty information or damage, injury, or loss relating directly or indirectly to defective files or data downloaded via the Services. Provider does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, reliability, or reliability of any content posted or mail available by users via the Services or endorse any opinions expressed by any such content. Under no circumstances will Provider be liable in any way for any user content, including, but not limited to, any errors or omissions in any such content, or any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, transmitted or otherwise made available or shared via the Services or rebroadcast, republished, or otherwise shared elsewhere.

3. Responsibilities.

(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access by or provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.

(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and any applicable flow through provisions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

(c) Representations and Warranties. Customer represents and warrants that Customer has full right, power and authority to enter into this Agreement and to consummate or cause to be consummated all of the transactions and to fulfill all of its obligations contemplated hereunder; Customer has read and understood this Agreement; Customer is at least the age of majority in Customer’s jurisdiction; and this Agreement constitutes a legal, valid and binding agreement of Customer enforceable against it in accordance with its terms.

(d) Customer Data. Customer is responsible for its use of the Services, for any Customer Data that Customer posts, submits, sends, provides, uploads, displays or cause to be displayed (collectively, “Share” and its derivatives) in connection with Customer’s use of the Services, and for any consequences thereof. The Customer Data that Customer Shares may be viewable, accessible, downloadable, and storable by other users of the Services and the general public, directly or indirectly through third party services, service providers, and/or websites. Customer agrees to only provide Customer Data it is comfortable Sharing with others under this Agreement. The Services are not a backup service and Customer is solely responsible for maintaining original and/or backup copies of any Customer Data it Shares. Provider is under no obligation and has no duty to preserve or maintain copies of any Customer Data. Customer represents and warrants that it owns or otherwise controls all of the rights to such Customer Data necessary for to lawfully Share the Customer Data and to grant the assignments and licenses provided in this Agreement, and for Provider to lawfully use the Customer Data in connection with the Services. Customer represents and warrants that Customer Data Shared by Customer in connection with its use of the Services does not infringe any third party’s rights, including without limitation rights of privacy, likeness rights, and/or intellectual property rights. Customer further represents and warrants that all Customer Data it Shares will comply with the Acceptable Use Policy set forth herein.

(e) Acceptable Use Policy. This section contains Provider’s Acceptable Use Policy (the “AUP”), which describes prohibited uses of the Services. The examples described in this AUP are not exhaustive. If Customer violates the AUP or authorizes or helps others to violate it, Provider may temporarily or permanently suspend or terminate Customer’s account and/or access to or use of the Services. Customer shall not:

(i) Use the Services in any manner that could damage, disable, overburden, or otherwise impair any of the Services, or any services offered by a third party, or interfere with any other party’s use and enjoyment of the Services.

(ii) Gain or attempt to gain unauthorized access to any Service, other accounts, computer systems or networks through hacking, password mining or any other means.

(iii) Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.

(iv) Use the Service in connection with any unlawful contests, lotteries, or gambling, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages, commercial or otherwise.

(v) Defame, abuse, harass, stalk, threaten, bully, or violate the legal rights (such as rights of privacy and publicity) of others.

(vi) Publish, post, upload, distribute, traffic or disseminate any defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, bullying, or otherwise objectionable or unlawful content or any material or information that incites discrimination, hate or violence towards one person or a group based on race, religion, sex, gender identity, sexual orientation, ethnicity, disability, or nationality.

(vii) Upload, or otherwise make available Customer Data that contains images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity), unless Customer owns or controls the rights thereto or has received all necessary consents to do same.

(viii) Upload Customer Data that contains viruses, worms, Trojan horses, macros, scripts, keyloggers, data scrapers, packet sniffers, or any other any software or code which interrupts, destroys, inhibits, or limits the functionality of any computer or telecommunications system, software, or hardware.

(ix) Create a false identity for the purpose of misleading others or otherwise impersonate any person, or misrepresent your identity or affiliation with any person or organization. Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden.

(x) Use any bots, artificial intelligence, or other automated or directed system to access the Services or any Provider systems or content.

(xi) Gain or attempt to gain unauthorized access to Provider’s proprietary information, computer network, computer systems, or user accounts.

(xii) Bypass or breach any security device or protection used by the Services or access or use the Services or content other than by use of a valid user account.

(xiii) Access or use the Services or content accessible thereby for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage.

4. Fees and Payment.

(a) Fees. If Customer subscribes to the Paid Product, Customer shall pay Provider the fees (“Fees”) for each subscription period of the Paid Product without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date(s). Provider may require Customer to make all payments through a Third-Party Product provided by a third-party, such as a third-party payment processor. Customer’s use of any such Third-Party Product is subject to the third party’s terms and conditions and privacy and other policies. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues 30 days or more, Provider may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full.

(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

(c) Auditing Rights and Required Records. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4(a). Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.

5. Confidential Information.

(a) From time to time during the Term, Provider may disclose or make available to Customer information about Provider’s business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to Customer at the time of disclosure; (iii) rightfully obtained by Customer on a non-confidential basis from a third party; or (iv) independently developed by Customer. Customer shall not disclose any Confidential Information to any person or entity. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer shall first have given written notice to Provider and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, Customer shall promptly destroy all copies, whether in written, electronic, or other form or media, of the Confidential Information and certify in writing to Provider that such Confidential Information has been destroyed.

(b) Customer acknowledges that when Customer uses the Services, Provider may collect, including through automatic means (such as cookies and web beacons), information about Customer’s use of the Services. Customer also may be required to provide certain information about himself/herself as a condition to using the Services or certain of its features or functionality, and the Services may provide Customer with opportunities to share information about himself/herself with others. The information may be transferred to and stored in countries other than the country in which the information is collected. All information Provider collects or receives through or in connection with the Services is subject to its Privacy Policy available at https://www.innovationforce.io/privacy. By using and providing information to or through the Services, Customer consents to all actions taken by Provider with respect to Customer’s information in compliance with the Privacy Policy, which is hereby incorporated by reference into this Agreement. Any information or personal data Customer providers to a third party, including through linked pages or applications or a Third-Party Product, is subject to that third party’s privacy and other policies.

6. Intellectual Property Ownership; Feedback.

(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

(b) Customer Data Ownership. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider an irrevocable, perpetual, non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, copy, modify, reproduce, distribute, create derivative works of, rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Customer Data, including any Customer Data incorporated within the Aggregated Statistics, and perform all acts with respect to the Customer Data for Provider to provide the Services or otherwise for Provider’s business purposes exercisable in its sole discretion, including without limitation, sale of data, research and development, issue resolution, improvements, benchmarking, and marketing and advertising for Provider or a third-party.

(c) Feedback. If Customer sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services and/or Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

7. Warranty Disclaimer.

(a) PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

(b) THE SERVICES AND PROVIDER IP ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 8, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

(c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.

8. Indemnification.

(a) Provider Indemnification.

(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Paid Product, or any use of the Paid Product in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.

(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Paid Product, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

(iii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Paid Product in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Paid Product not made by Provider; (C) Customer Data; or (D) Third-Party Products.

(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights and any Third-Party Claims based on Customer’s (i) negligence or willful misconduct; (ii) breach of applicable law or this Agreement; (iii) use of the Services in a manner not authorized by this Agreement; (iv) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (i) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PAID PRODUCT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9. Limitations of Liability.

IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Term and Termination.

(a) Term. This Agreement shall be effective when Customer acknowledges his/her acceptance of the Agreement and Provider accepts Customer’s acceptance of the Agreement (the “Effective Date”). The term of this Agreement begins on the Effective Date and will continue until expired or terminated in accordance with this Agreement. (the “Term”). Customer may subscribe for the Services on a monthly or annual basis, and this Agreement will automatically renew for additional successive monthly or annual subscription periods, as applicable, unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal prior to the expiration of the then-current subscription period.

(b) Termination. In addition to any other express termination right set forth in this Agreement:

(i) Customer may terminate this Agreement with respect to the Freemium Product at any time for any reason by deactivating its account and discontinuing its use of the Freemium Product. If Customer stops using the Freemium Product without deactivating its account, the account may be deactivated due to prolonged inactivity.

(ii) Provider may terminate this Agreement at any time for any reason with respect to the Freemium Product, including without limitation, if Provider determines that Provider’s provision of the Freemium Product to Customer is no longer commercially viable.

(iii) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder; or (B) breaches any of its obligations under Section 2(c), the Acceptable Use Policy, or Section 5;

(iv) Provider may terminate this Agreement, effective on written notice to Customer, if Customer breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after Provider provides Customer with written notice of such breach; or

(v) Provider may terminate this Agreement, effective immediately upon written notice to Customer, if Customer: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and the Services and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees for the Paid Product that may have become due before such expiration or termination or entitle Customer to any refund.

(d) Survival. Section 10(c), Sections 1, 4, 5, 6, 8, 9, and 11, and any other section which by its nature should survive, shall survive any termination or expiration of this Agreement.

11. Miscellaneous

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, this Agreement shall govern.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications to Provider hereunder (each, a “Notice”) must be in writing and addressed to Provider at the address set forth on the first page of this Agreement (or to such other address that may be designated by Provider). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by Provider; and (ii) if Customer has complied with the requirements of this Section.

(c) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, disease, pandemic, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the personal jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise. Any purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly, or indirectly, export, re-export, or release the Services or the underlying software or technology to or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.

(i) Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2(c) or 5 would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.