Validity, Inc. Subscription Master Agreement (“Agreement”)

1. License Grant
   1. Validity hereby grants to Customer a non-exclusive and non-transferrable right to access the DT SMB solely for the internal business purposes of Customer. Customer may make a reasonable quantity of copies of the Documentation for use only in connection with Customer’s use of the DT SMB, provided that all such copies retain Validity’s trademark, copyright and other proprietary legends and logos.
   2. Customer will comply with all applicable laws and regulations in connection with Customer’s use of the DT SMB. Customer will not use the DT SMB to post or transmit any illegal material, including, without limitation, any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, Customer shall not:
      1. Provide, rent, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the DT SMB for their own benefit or for the benefit of third parties;
      2. Modify, adapt, translate, incorporate into or with other software, or create a derivative work or an improvement of, any part of the DT SMB;
      3. Disclose the results of any benchmarking of the DT SMB, or use such results for its own competing software development activities;
      4. Copy, reproduce or duplicate the DT SMB, by any means or in any manner, except for backup purposes;
      5. Decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the DT SMB by any means whatever;
      6. Transmit or post chain letters or pyramid schemes, or undertake other acts that involve deceptive online marketing practices or fraud;
      7. Affect the quality of other users’ experience;
      8. Undertake actual or attempted unauthorized use or sabotage of any computers, machines or networks or introduce malicious programs into the DT SMB;
      9. Engage in any monitoring or interception of data not intended for Customer;
      10. Attempt to circumvent authentication or security of any host, network or account;
      11. Use any method, software or program designed to collect identity information, authentication credentials, or other information;
      12. Transmit or receive, upload, use or reuse material that (A) is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights, (B) violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights, (C) Customer does not have a right to transmit under any law or under any contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or (D) Customer has not collected directly from live web forms or other opt-in collection mechanisms directly related to Customer’s business; or
      13. Falsify user identification information or impersonate any person or entity.
   3. Customer is responsible and liable for all uses of the DT SMB and Documentation through access thereto by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the DT SMB and Documentation by its authorized Users or by any other person to whom Customer or an authorized User may provide access to or use of the DT SMB or Documentation, whether such access or use is permitted by or in violation of this Agreement. Customer shall defend, indemnify, and hold harmless Validity from and against any claims, loss, liability, or damages (including reasonable attorneys’ fees) arising from Customer’s use of the DT SMB.
   4. Customer will create a password and account. Customer is responsible for maintaining the confidentiality of the password and account and is fully responsible for all activities that occur under its account, including, without limitation, all actions by sub-users registered under its account. In addition, Customer is solely responsible to review the instructions and user policies provided in conjunction with the DT SMB and bears all responsibility for using the DT SMB correctly in accordance with such instructions and user policies. Customer will (i) immediately notify Validity of any unauthorized access to or use of its password or account or any other breach of security; and (ii) ensure that Customer exits (logs off) from its account at the end of each session. For the avoidance of doubt, Validity cannot and will not be liable for any loss, damage or other liability arising from Customer’s failure to comply with the requirements or from any unauthorized access to or use of Customer’s account.
   5. Collection and Use of Information:
      1. Customer represents and warrants that all data sent to Validity or otherwise processed through or used in connection with the DT SMB has been legally obtained and that its use is not in violation of any laws, rules, regulations, legislation or directives, including, without limitation, any relevant local data protection laws, rules, regulations, legislation or directives pertaining to any country or territory the DT SMB is used. In the event Customer provides access to its or any contact data in a file stored with a third party source, Customer represents and warrants that Customer has all legal rights and authority to grant Validity access to such files in order to download or process such contact data using the DT SMB.
      2. Customer acknowledges that Validity may, directly or indirectly through the services of third parties (including, without limitation, Validity’s vendors,
         affiliates, and Customers), collect and store information regarding use of the DT SMB and about equipment on which the DT SMB is installed or through which it otherwise is accessed and used, through (A) the provision of maintenance and support services; and (B) security measures included in the DT SMB. Validity may use such information for any purpose related to any use of the DT SMB by Customer or on Customer’s equipment, including, but not limited to, (A) improving the performance of the DT SMB or developing updates; and (B) verifying Customer’s compliance with the terms of this Agreement and enforcing Validity’s rights, including all intellectual property rights in and to the DT SMB.
2. Price and Payment
   1. Customer shall pay Validity fees to purchase a subscription to be used by Customer in Customer’s use of the DT SMB. The pricing shall be located at https://www.validity.com/products/demandtools/try-it-pricing/, which may be modified from time to time, and at any time, by Validity in its sole discretion.
   2. Customer shall be required to pay by credit card, unless Validity, in its sole discretion, permits Customer to pay by check or wire transfer. All fees are due immediately upon purchase and Customer hereby authorizes Validity to charge Customer’s credit card at the time of purchase for all amounts due. If Customer does not pay Validity when due or if Customer’s credit card is declined at any time, or in the event that Customer’s check does not allow Validity to receive payment, Validity has the option to terminate DT SMB immediately until such amounts are paid.
   3. All fees are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Customer will pay or reimburse Validity for all federal, state, dominion, provincial, or local sales, VAT, use, personal property, import, export, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement, other than taxes based upon Validity’s net income.
3. Term and Termination
   1. This Agreement is effective upon Customer’s purchase and shall continue until terminated per this Section 3 or upon the expiration of a subscription term. Each subscription term is twelve (12) months and shall automatically renew for successive additional periods of twelve (12) months, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then current subscription term.
   2. Without limiting any other rights or remedies available to Validity, Validity has the right to terminate this Agreement immediately and without notice to Customer, if:
      1. Customer is in breach or default of any of its obligations under this Agreement, other than with regard to Section 2, and such breach or default continues unrectified for ten (10) days following the provision of written notice of such breach or default to Customer;
      2. Customer voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against Customer under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to Customer’s assets;
      3. Customer ceases to carry on its business; or
      4. Validity has not received any payment when due either under this Agreement.
      5. Upon termination of this Agreement for any reason whatsoever, Customer must immediate cease using the DT SMB and, if applicable, disconnect or disable any application (API) that provides access to the DT SMB.
      6. The termination of this Agreement will not affect the survival and enforceability of any provisions of this Agreement which are expressly or impliedly intended to survive and remain in force after such termination or expiration of this Agreement, including, without limitation, Sections 1(b), 1(c), 1(d), 2, 3(d), 4, 5, 7, 8 and 9.
4. Confidentiality
   The DT SMB and Documentation, including, without limitation, trade secrets, performance data, design, features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods and procedures of operation and other information relating to or obtained therefrom, by use, examination or otherwise, which is not generally publicly known are the valuable trade secrets of Validity, and shall be deemed to be confidential information of Validity (“Confidential Information”). Customer shall use the same degree of care to protect the Confidential Information from improper use or non-disclosure as Customer would use with respect to Customer’s own information of like importance which Customer does not desire to have published or disseminated, but in any event no less than reasonable care. Customer will not use any Confidential Information for any purpose not expressly authorized under this Agreement and will not disclose to third parties any such Confidential Information.
5. Intellectual Property Rights
   The DT SMB is owned by Validity, and its structure, organization and code are the exclusive intellectual property and valuable trade secrets of Validity. All intellectual property rights in and to the DT SMB, including, without limitation, all copyright, trade secret, patent, trademark, and other proprietary or industrial property rights in and to the DT SMB, are the sole and exclusive property of Validity. Except for the right to use the DT SMB as specifically stated in Section 1, Customer is not granted any other right, title, or ownership in the DT SMB. Customer acknowledges that the DT SMB is protected by copyright and other intellectual property laws. Only Validity shall have the right to maintain, enhance, or otherwise modify the DT SMB. Customer shall not contest or challenge or take any action inconsistent with or that may damage or impair Validity’s ownership or intellectual property rights of Validity’s affiliates or authorized users. Customer acknowledges that Validity may retain certain transactional information for data aggregation services or to permit data analyses. Customer shall promptly notify Validity if Customer becomes aware of any infringement of the Validity’s intellectual property rights in the DT SMB and fully cooperate with Validity in any legal action taken by Validity to enforce its intellectual property rights.
6. Disclaimer of Warranty
   VALIDITY MAKES NO WARRANTY OR CONDITION OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED REGARDING THE DT SMB. ALL IMPLIED OR STATUTORY WARRANTIES OR TERMS & CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. VALIDITY DOES NOT WARRANT THAT THE OPERATION OF THE DT SMB WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE DT SMB WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER. THE DT SMB IS PROVIDED AND LICNESED ON AN “ASIS” BASIS WITH NO WARRANTY OR REPRESENTATION OF ANY KIND.
7. Indemnification
   Customer shall indemnify and hold harmless Validity from and against all losses, claims, damages or other causes of any nature or kind whatsoever (including reasonable attorney’s fees) arising directly or indirectly out of third party claims concerning:
   1. A breach of any of Customer’s obligations, covenants, representations or warranties contained herein;
   2. Disclosure of Confidential Information;
   3. Customer’s use of the DT SMB; and
   4. The negligence or intentional misconduct of Customer or Customer’s officers, employees, agents or contractors.
8. Limitation of Liability
   1. In no event whatsoever will either party be liable for punitive, exemplary or similar damages; damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored data; or indirect, consequential or special damages of any kind.
   2. The maximum total liability of Validity, for any claim whatsoever, under any circumstances, regardless of the cause of action and including, without limitation, claims for breach of contract, tort, negligence or otherwise, and Customer’s sole remedy therefor, shall be strictly limited to an amount not to exceed the amount of Fees paid by Customer to Validity hereunder.
   3. No action arising out of or relating to this Agreement, or Validity’s obligations hereunder, regardless of form, may be brought by Customer more than twelve (12) months after the facts giving rise to the cause of action are known to Customer.
9. Miscellaneous
   1. This Agreement sets forth the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements. There are not and shall not be any oral statements, representations, warranties, undertakings or agreements between the parties. Validity may elect to change or supplement the terms of this Agreement from time to time, at its sole discretion. Validity will exercise commercially reasonable business efforts to provide notice to Customer of any material changes to this Agreement. Within thirty (30) business days of posting changes to this Agreement, they will be binding on Customer. If Customer does not agree with the changes, Customer should immediately discontinue using the DT SMB. If Customer continues using the DT SMB after such thirty (30) business day period, Customer will be deemed to have accepted the changes to the terms of this Agreement.
   2. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding the application of its conflict of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
   3. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder part of this Agreement will continue in full force and effect.
   4. Customer shall comply with all United States and foreign export control laws and regulations applicable to the exercise of its rights under this Agreement, including but not limited to the Foreign Corrupt Practices Act, UK Bribery Act, all US and international anti-bribery laws and all US export, trade and sanctions programs laws. Neither Customer nor any of its employees, contractors or agents may make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act of decision of an official of any foreign government or the U.S. government (including a decision not to act) or inducing such a person to use his/her influence to affect any such governmental act or decision in order to assist in obtaining, retaining or directing any business via or in relation to this Agreement. A foreign governmental official shall include any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or of any public international organization, such as the United Nations or the World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business, any political party or party official, any political candidate or any person or entity who Customer knows or has reason to believe will give part of any part of any payment to any of the aforementioned categories of people for such purpose.
   5. If Customer is the U.S. Government or an agency thereof, Customer (i) with respect to civilian agencies, will grant protection for the DT SMB as “commercial computer software” and related documentation in accordance with the terms of 48 C.F.R. 12.212 of the Federal Acquisition Regulations; and (b) for use by or on behalf of the Department of Defense, will grant protection for any DT SMB as “commercial computer software” and related documentation in accordance with the terms of 48 C.F.R. 227.7202-1 of the DoD FAR Supplement.
   6. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, except no consent shall be required should either party undergo a change of control. This Agreement shall be binding upon and inure to the benefit of the successors and assignees of Validity or Customer.
   7. Validity shall be authorized to identify Customer as a customer of Validity in public relations and marketing materials.
   8. Validity will have no obligation to perform its obligations hereunder to the extent and for the period that Validity is prevented from doing so by reason of force majeure or any cause beyond its reasonable control.
   9. DT SMB Description is set forth in Exhibit A attached hereto.

01/31/2020
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