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Subscription & Professional Services Agreement

Dated: May 2016

Thanks for using our products and services (“Services”). The Services are provided by Spigit, Inc. (“Spigit”), with corporate headquarters at 275 Battery Street Suite 1000, San Francisco, CA 94111. Please read this Subscription and Professional Services Agreement (“Agreement”) before using Spigit Services. By using our Services, you (“Customer”) are agreeing to these terms.

If you do not agree to the terms of this Agreement, do not use the Services. If you are entering into this Agreement on behalf of a company or other legal entity, you hereby represent and warrant that you have the actual authority to bind such entity to the terms and conditions of this Agreement. If you do not have such authority, you may not indicate acceptance of the terms of this Agreement on behalf of such entity and may not use the Services.

1.0 ORDERING.

An Order Form is a document executed under this Agreement and will specify the following: (a) the software-as-a-service product offering ( “Product”) that Customer is licensing, (b) the number of authorized individual non-concurrent users (“Users”), (c) the term Customer is licensed to use and access the Product (“Subscription Term”), (d) any implementation, configuration, training, or consulting services, additional modules, and/or add-on products or services relating to the Product, (e) any Professional Services Credits purchased, and (f) all other necessary information, including whether the Product being licensed is for “internal” usage (licensed for use solely within Customer’s organization for their employees and independent contractors) or “external” usage (licensed for use by Users who are primarily third parties of Customer. Additional terms and conditions on an invoice or purchase order shall not apply and are void.

2.0 LICENSE GRANTS AND RESTRICTIONS.
2.1 License Grants.

Subject to the terms of this Agreement and during the applicable Subscription Term (as provided within the Order Form), Spigit grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without resale or sublicense rights to access a single instance of the Product in a production environment, and permit Users to use, perform and display the Product in connection with the intended purpose of the Product unless otherwise expressly set forth within the Order Form, and (b) for the applicable Term, use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available in connection with the Product, if any (the “Documentation”). Customer acknowledges the phrase “powered by Spigit” appears on their Product website. The rights granted to Users in this Section 2.1 are limited to the number of Users set forth in the Order Form. The applicable Subscription Term for each license purchased will be as set forth in the applicable Order Form.

2.2 License Restrictions.

Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Product, the Services or any portion thereof; (b) distribute, transfer, grant sublicenses to, or otherwise make available the Product or any portion thereof i) to third parties (other than authorized Users), including, but not limited to, making such Product available (ii) through resellers or other distributors, or (iii) as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Product or Services into other applications of Customer or third parties without Spigit’s prior written consent (d) create modifications to or derivative works of the Product or Services; (e) reproduce the Product; (f) use or transmit the Product in violation of any applicable law, rule or regulation, including any export/import laws; (g) in any way access, use, or copy any portion of the Product (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Product; (h) use the Product to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party; or (i) remove, obscure or alter any copyright notices or any name, trademark, service mark, hyperlink or other designation of Spigit displayed on any display pages within the Product (“Spigit Marks”). Customer shall not permit any affiliate, subsidiary or other third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions.

3.0 SUPPORT AND MAINTENANCE.

Spigit will use its commercially reasonable efforts to make the Product available 24 hours a day, 7 days a week, excluding planned downtime, Force Majeure Events (as defined below), and Internet service interruptions. Spigit will provide support services in accordance with of the Spigit Support and Service Level Agreement (“Support Services”), set forth on https://www.spigit.com/legal/standard-mindjet-service-level-agreement.pdf.

4.0 PROFESSIONAL SERVICES.

If Customer has purchased Professional Services Credits, Customer will provide all assistance reasonably requested by Spigit in connection with the Professional Services, including, but not limited to access to information, personnel, resources, facilities, and equipment. Spigit will retain all right, title and interest in and to all deliverables (including any intellectual, property rights therein) provided in connection with the Product or any Professional Services (“Deliverables”). If travel is requested by Customer, Spigit will invoice Customer for all reasonable expenses related to such travel, subject to any corporate travel and expense policies provided to Spigit by Customer.

5.0 PROPRIETARY RIGHTS.

As between the parties, Spigit will retain all ownership rights in and to the Spigit Marks, the Product (including any optional functionality), the Documentation, Deliverables, all updates and upgrades provided as part of Support Services and other derivative works and enhancements of the Product and/or Documentation that are provided by Spigit, and all intellectual property rights incorporated into or related to the foregoing. Spigit periodically installs updates and/or upgrades to its Product without specific notice. Customer acknowledges Product may change from updates and/or upgrades, and agrees to such changes provided that the Product’s performance is not materially decremented. Customer acknowledges that the goodwill associated with the Spigit Marks belongs exclusively to Spigit, and Customer has a limited right to use Spigit Marks during the Subscription Term. Upon request, Customer will cease its use of any Spigit Marks. All rights not expressly licensed by Spigit under this Agreement are reserved. Customer agrees to provide a limited license to Spigit to use Customer’s name in the host name of Customer’s site (e.g., www.customer.spigit.com, www.customerstaging.spigit.com). As part of Spigit’s ability to provide Support Services, Customer hereby grants to Spigit a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Product any suggestions, enhancement requests, or other feedback related to the Product that is provided by Customer and/or its Users.

6.0 WARRANTIES.

Spigit warrants that the Product, as delivered and when used in accordance with the Documentation, (a) will perform in all material respects as specified in such Documentation for the Subscription Term from Customer’s initial receipt of or access to the Product, and (b) will not contain any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines intentionally designed to permit unauthorized access to or use of either the Product’s or Customer’s computer systems (“Viruses”). In the event of any breach of the warranty in subsection (a) above, Spigit shall diligently remedy any deficiencies that cause the Product to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. Spigit will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination with the Product) not provided by Spigit or any open source components included within the Product, (ii) Customer modifications to the Product or the Product’s interoperability with such Customer modifications, (iii) unauthorized use or use of the Product other than in accordance with the Documentation or (iv) Viruses introduced by Customer, its affiliates; subsidiaries, agents, Users or others (collectively, “Exclusions”). Each party warrants that it has the authority and power to enter into and perform, and to make all representations, warranties and grants, under this Agreement. Spigit hereby warrants, represents and undertakes that the Services and any Deliverables will: (a) comply with the descriptions and representations described in this Agreement, (b) comply with the specifications in the applicable Order Form, and (c) comply with all applicable laws and regulation. In addition to the other warranties given by Spigit, Spigit represents and warrants that it will perform the Services: (a) in a good, timely, efficient, professional and workmanlike manner using then-current technology, (b) using Spigit personnel who are fully familiar with the technology, processes and procedures to be used to deliver the Services, (c) with at least the degrees of accuracy, quality, efficiency, completeness, timeliness and responsiveness as are equal to or higher than the accepted industry standards applicable to the performance of the same or similar services, and (d) in compliance and in accordance with the provisions of this Agreement and the applicable Order Form ). If Spigit breaches this warranty, Customer will state the deficiencies and corrective action in writing to which Spigit will promptly correct or cause the correction of the deficiencies giving rise to the breach without charge.

7.0 DISCLAIMER.
THE EXPRESS WARRANTIES IN SECTION 6 ARE THE EXCLUSIVE WARRANTIES OFFERED BY SPIGIT AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. SPIGIT DOES NOT WARRANT THAT CUSTOMER USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

8.0 INDEMNIFICATION.

Spigit will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Product or Deliverables (or any component thereof owned by Spigit) infringes a copyright or misappropriates any trade secret rights, and Spigit will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on the Customer (a) notifying Spigit promptly in writing of such action, (b) giving Spigit sole control of the defense thereof and any related settlement negotiations, and (c) cooperating with and, at Customer’s reasonable request and expense, assisting in such defense. If the Product (or any component thereof owned by Spigit) becomes, or in Spigit’s opinion is likely to become, the subject of an infringement claim, Spigit may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Product so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options is, in Spigit’s reasonable opinion, commercially reasonable, Spigit may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Spigit will have no obligation under this Section 8.0 or otherwise with respect to any infringement claim based upon any Exclusions. This Section 8.0 states Spigit’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.

9.0 LIMITATIONS ON LIABILITY.

OTHER THAN WITH RESPECT TO CLAIMS FOR INDEMNITY BROUGHT PURSUANT TO SECTION 8.0, ABOVE, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE PRODUCT, SUPPORT SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOSS OF GOODWILL, LOST OPPORTUNITY, LOSS OF EARNINGS, LOST REVENUE, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO SPIGIT BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.

10.0 CONFIDENTIALITY.

Each party acknowledges that, during the Term, it will receive information from the other party that is highly confidential and proprietary, including but not limited to information concerning such party’s business, marketing, financial and operations, the Documentation, and/or Product (“Confidential Information”). Neither party shall, either directly or indirectly, divulge, disclose or communicate, exploit, duplicate, publish, or otherwise reveal or make available to any third party, the Confidential Information of the other, whether delivered electronically or in writing, or obtained through observation of such other party’s business. Each party agrees to hold Confidential Information of the other in strict confidence, exercising the same standard of care as it uses to protect its own confidential information, but no less than a commercially reasonable standard of care. Each party agrees to the disclosure of their Confidential Information to the other party’s employees and subcontractors solely on a need-to-know basis and only after the employee or subcontractor has executed an agreement that protects the Confidential Information of the other party with confidentiality provisions equivalent to those contained in this Agreement. The recipient of Confidential Information shall continue to maintain its obligation of confidentiality for a period of two (2) years following the expiration or termination of this Agreement. Each party warrants that it has implemented and agrees to maintain administrative, physical and technical safeguards that protect the confidentiality and integrity of all Confidential Information received from the other party. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (a) information already lawfully known to one (1) party at the time of disclosure by the other, (b) information generally known to the public other than as a result of disclosure in violation of this Section, (c) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information. Confidential Information may be disclosed to the extent required by court order or other legal process, provided that the party directed to disclose shall give the maximum practical advance written notice of same to the other party, and shall use its best commercial efforts to limit the disclosure and maintain the confidentiality of such Confidential Information. In addition, the party directed to disclose shall permit the other party to attempt to limit such disclosure by appropriate legal means. The parties recognize that a breach of this Section will result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a party to seek any other remedy or relief to which it may be entitled under law, each party agrees that the other is entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.

11.0 TERM, TERMINATION AND EFFECT.

The applicable Subscription Term will be as set forth in the applicable Order Form. The term of this Agreement (“Term”) shall continue in effect until the end of Subscription Term set forth on an applicable Order Form. This Agreement may be terminated by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required hereunder shall immediately cease, provided that Sections 6.0, 7.0, 9.0 through 11.0 and 14.0 shall survive termination; (b) Customer will promptly delete and destroy any and all Spigit Confidential Information in its possession or control, and upon request by Spigit shall certify in writing such destruction; (c) Customer shall pay to Spigit any outstanding fees that have accrued prior to the date of termination. Additionally, a particular Order Form may be terminated by Spigit in the event that Customer fails to pay applicable fees when due.

12.0 FEES AND PAYMENT.

Subject to the terms and conditions herein, all fees for the Product, Professional Services and/or Support Services will be set forth on the applicable Order Form (“Fees”). Unless otherwise agreed to in an Order Form bi-laterally signed by the parties, Customer will pay to Spigit all undisputed Fees within thirty (30) days after the invoice date. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use, excise, customs duties, tariffs and other taxes, (other than taxes based on Spigit’s income) which if applicable shall be paid by Customer.

13.0 CUSTOMER DATA.

Customer retains all rights in any data, or information that Customer uploads to the Product (“Customer Data”). Customer shall have sole responsibility for the accuracy, reliability, appropriateness, ownership and right to use Customer Data. Spigit will not engage any third party to process Confidential Information under this Agreement without: (i) a contractual relationship with such third party which includes equivalent information security controls, data privacy and confidentiality requirements as those set forth under this Agreement; (ii) performing and documenting a risk analysis to ensure that the processing of Confidential Information by such third party will not compromise Spigit’s obligations under applicable laws; and (iii) performing a privacy and information security due-diligence assessment of such third party’s privacy and security practices to ensure compliance with the requirements set forth under this Agreement. Spigit’s obligation to retain Customer Data expires at the end of the Subscription Term. Within 30 days of the end of the Subscription Term and upon written request from Customer, Spigit will provide Customer Data in a .csv file format or other mutually agreed file format.

14.0 MISCELLANEOUS.

Replacement of Spigit Personnel. If either party determines that the continued assignment of any Spigit personnel is not in the best interests of the Customer, Customer may request in writing that the individual be replaced. Within ten (10) business days after Spigit’s receipt of that request, Spigit will remove that individual from Customer’s account and replace that individual, using commercially reasonable efforts, with Spigit personnel of suitable ability and qualifications at no additional cost.

Independent Contractors. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
Force Majeure. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a “Force Majeure Event”). The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

Acceptance. The Product is deemed accepted upon receipt of appropriate log in credentials.

Assignment. Customer will not assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without Spigit’s prior written consent.

Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to California conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in San Francisco County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.

Waiver. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

Entire Agreement. This Agreement includes any applicable Order Form(s) and any Service Descriptions attached thereto. Collectively, the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Spigit. In the event of a conflict between this Agreement and any other terms and conditions, to the extent that they are inconsistent, the following order of precedence shall apply: the Order Form, this Agreement, and attachments to an Order Form (including Service Descriptions). The terms on any purchase order or similar document submitted by Customer to Spigit will have no effect and are hereby rejected.

Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its main corporate headquarters.