SUBSCRIPTION SERVICES AGREEMENT

Last Updated Date: June 10, 2021

This Subscription Services Agreement (the “Agreement”) is a binding contract between Vision33 and Customer. This Agreement governs Customer’s access
to and use of the Subscription Services. Capitalized terms have the definitions set forth in this Agreement.

THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER CLICKS A BOX INDICATING ACCEPTANCE OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR WHEN CUSTOMER FIRST ACCESSES OR USES THE SUBSCRIPTION SERVICES, WHICHEVER OCCURS FIRST (the “Effective Date”). BY CLICKING A BOX INDICATING ACCEPTANCE OF AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY ACCESSING OR USING THE SUBSCRIPTION SERVICES, CUSTOMER: (I) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (II) REPRESENTS AND WARRANTS THAT CUSTOMER IS A COMPANY OR OTHER LEGAL ENTITY AND THAT THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER HAS THE LEGAL AUTHORITY
TO BIND CUSTOMER TO THE TERMS AND CONDITIONS CONTAINED HEREIN.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SUBSCRIPTION SERVICES.

  1. Definitions and Interpretation.
    • “Aggregated Statistics” has the meaning given in Section 2.d.
    • “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Subscription Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Subscription Services has been purchased from Vision33 pursuant to this Agreement.
    • “Customer” means the company or other legal entity identified in the Order Form as the customer.
    • “Customer Data” means, other than Aggregated Statistics, information, data, and any other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User to the Subscription Services.
    • “Documentation” means Vision33’s standard end user documentation relating to the Subscription Services accessible through a website operated by Vision33 which may include but is not limited to user manuals, operating instructions, handbooks, guides and release notes, each as updated by Vision33 from time to time.
    • “Initial Term” has the meaning given in Section 14.a.
    • “Order Form” means an online order for Subscription Services entered into between Vision33 and Customer that incorporates this Agreement by reference and includes details on pricing, payment terms and subscription term, as amended or supplemented from time to time.
    • “Renewal Term” has the meaning given in Section 14.a.
    • “Subscription Fees” means the subscription fees payable by Customer to Vision33, as set forth in the applicable Order Form, which will entitle Authorized Users to access and use the Subscription Services and the Documentation in accordance with this Agreement.
    • “Subscription Services” means the web-based applications, tools, integrations and platforms that are developed, operated and maintained by Vision33 and made available by Vision33 to Customer online via a browser or mobile application, as identified on the applicable Order Form.
    • “Subscription Term” has the meaning given in Section 14.a.
    • “Third-Party Services” means any services, products, content, information, applications, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Subscription Services.
    • “Vision33” means the applicable Vision33 contracting entity identified in Section 19.
    • “Vision33 IP” means the Subscription Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt Vision33 IP includes Aggregated Statistics and any information, data, or other content derived from Vision33’s monitoring of Customer’s access to or use of the Subscription Services, but does not include Customer Data.
    Any capitalized terms not defined in this Section 1 have the meaning given in any other part of this Agreement.

  2. Access and Use.
    • Provision of Access. Subject to Customer’s and other Authorized Users’ compliance with the terms and conditions of this Agreement, Vision33 grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Subscription Services during the Subscription Term solely for use by Authorized Users for Customer’s internal business operations. Vision33 will provide Customer the necessary passwords and access credentials to allow Authorized Users to access the Subscription Services.
    • Documentation License. Subject to the terms and conditions contained in this Agreement, Vision33 grants Customer a non-exclusive, nonsublicensable, non-transferable license for Authorized Users to use the Documentation during the Subscription Term solely for Customer’s internal business operations in connection with use of the Subscription Services.
    • Use Restrictions. Customer shall not, and shall not permit any Authorized Users to, use the Subscription Services, any software component of the Subscription Services, or the Documentation for any purposes beyond the scope of the access granted under this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Subscription Services, any software component of the Subscription Services, or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, include in a service bureau or outsourcing offering, or otherwise make available the Subscription Services or the Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, or decode the Subscription Services or any software component of the Subscription Services, in whole or in part; (iv) remove any proprietary notices from the Subscription Services or the Documentation; (v) use the Subscription Services or the 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, regulation, or rule; (vi) use the Subscription Services to store or transmit any code, files, scripts, agents or programs intended to do harm, including, but not limited to, viruses, worms, time bombs and Trojan horses; or (vii) use the Subscription Services or the Documentation for any fraudulent, offensive, or obscene activity, or in a manner that violates any policies, guidelines, standards and requirements relating to the Subscription Services or the Documentation that may be posted online by Vision33 from time to time.
    • Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Vision33 may monitor Customer’s use of the Subscription Services and collect and compile data and information related to Customer’s use of the Subscription Services to be used by Vision33 in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Subscription Services (“Aggregated Statistics”). As between Vision33 and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Vision33. Customer agrees that Vision33 may make Aggregated Statistics publicly available and use Aggregated Statistics for the purpose of providing, improving or publicizing Vision33’s products and services and for other business purposes, in each case to the extent and in the manner permitted under applicable law.
    • Reservation of Rights. Vision33 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 Vision33 IP.
    • Suspension. Notwithstanding anything to the contrary in this Agreement, and in addition to any other remedies available under this Agreement or at law or in equity, Vision33 may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Subscription Services if: (i) Vision33 reasonably determines that: (A) there is a threat or attack on any of the Vision33 IP; (B) Customer’s or any other Authorized User’s use of the Vision33 IP disrupts or poses a security risk to the Vision33 IP or to any other customer or vendor of Vision33; (C) Customer or any other Authorized User is using the Vision33 IP in a manner prohibited by this Agreement or for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Vision33’s provision of the Subscription Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Vision33 has suspended or terminated Vision33’s access to or use of any third party services or products required to enable Customer to access the Subscription Services; or (iii) in accordance with Section 6.a. (any such suspension described in subsection 2.f.(i), (ii), or (iii), a “Subscription Services Suspension”). Vision33 will use commercially reasonable efforts to provide written notice of any Subscription Services Suspension to Customer and to provide updates regarding resumption of access to the Subscription Services following any Subscription Services Suspension. Vision33 will use commercially reasonable efforts to resume providing access to the Subscription Services as soon as reasonably possible after the event giving rise to the Subscription Services Suspension is cured. Vision33 will have no liability for any damages, liabilities, losses, or any other consequences that Customer or any other Authorized User may incur as a result of a Subscription Services Suspension.
    • Open Source Components. Customer acknowledges that the Subscription Services may include open source components and that any use of such open source components by Customer is subject to and governed solely by the terms and conditions of the applicable open source license agreements. Notwithstanding anything to the contrary in this Agreement, Vision33 provides no warranty or indemnity with respect to such open source components.
  3. Customer Responsibilities.
    • Account Use. Customer is responsible and liable for all uses of the Subscription Services and the Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the preceding sentence, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized Users’ use of the Subscription Services and the Documentation, and shall cause all Authorized Users to comply with such provisions.
    • Customer Data. Customer grants to Vision33 a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for Vision33 to provide the Subscription Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate the terms of this Agreement or any policy referenced in or incorporated into this Agreement or any applicable law. Customer is solely responsible for the accuracy, quality, integrity, development, content, operation, maintenance, and use of Customer Data.
    • Passwords and Access Credentials. Customer is responsible for keeping its passwords and access credentials associated with the Subscription Services secure and confidential. Customer shall not sell or transfer such passwords and access credentials to any other person or entity. Customer shall promptly notify Vision33 about any unauthorized access to such passwords or access credentials.
    • Customer’s Network and Systems. Customer shall ensure that its network and systems comply with the relevant specifications for
      accessing the Subscription Services as set forth in the Documentation. Customer shall be, to the extent applicable and permitted by law,
      solely responsible for: (i) procuring, maintaining and securing its network connections and telecommunications links from its systems to the
      Subscription Services; and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to
      Customer’s network connections or telecommunications links or caused by the internet.
  4. Third-Party Services.
    • Independent Relationship. The Subscription Services may permit access to Third-Party Services procured by Customer from a third party provider. Vision33 assumes no responsibility for, and specifically disclaims, any liability or obligation with respect to such Third-Party Services. Customer’s relationship with such Third-Party Services and any terms governing Customer’s payment for, and use of, such Third-Party Services, including the collection, processing and use of Customer Data by such Third-Party Services, are subject to a separate contractual arrangement solely between Customer and the provider of such Third-Party Services. Vision33 is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Services. Vision33 does not warrant or support Third-Party Services, whether they are designated by Vision33 as “certified” or otherwise.
    • Integration with Third-Party Services. The Subscription Services may contain features designed to interoperate with Third-Party Services. If the provider of such Third-Party Services ceases to make such Third-Party Services available for interoperation with the corresponding Subscription Services features in a manner acceptable to Vision33, then Vision33 may cease providing those Subscription Services features without entitling Customer to any refund, credit, or other compensation.
  5. Support. Vision33 will provide standard technical support for the Subscription Services to Customer at no additional charge, and upgraded technical support if purchased separately by Customer. All technical support requests will be submitted by Customer via email to: support@vision33.com. Vision33 will use commercially reasonable efforts to respond promptly to all such technical support requests during Vision33’s normal business hours.

  6. Subscription Fees.
    • Invoicing and Payment. In consideration of providing access to the Subscription Services and the Documentation, Customer will pay to Vision33 the Subscription Fees. The Subscription Fees will be invoiced by Vision33 and paid by Customer in advance in accordance with the payment terms set forth in the applicable Order Form. Except as otherwise specified in this Agreement, all Subscription Fees are nonrefundable and not subject to set-off or deduction by Customer. If any invoice is not paid when due, Vision33, without waiving any other rights or remedies to which it may be entitled, may: (i) charge interest on the unpaid amounts at the rate of two percent (2%) per month or the maximum rate permitted by law, whichever is lower; and (ii) suspend, in accordance with Section 2.f., Customer’s and any other Authorized User’s access to any portion or all of the Subscription Services until such amounts, including interest, are paid in full. All Subscription Fees and other amounts payable to Vision33 under this Agreement do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes, statutory withholdings or deductions based on, or with respect to, Vision33’s net income or personnel). Customer agrees that its order of Subscription Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made
      by Vision33, including any roadmaps, with respect to future functionality or features.
    • Fee Increases. Vision33 shall be entitled to increase the Subscription Fees at the start of each Renewal Term upon sixty (60) days’ prior
      written notice to Customer. In the event of any such fee increase, Customer may terminate this Agreement upon written notice provided to
      Vision33 at least thirty (30) days prior to the start of the applicable Renewal Term. Not raising the Subscription Fees for a given Renewal
      Term shall not be a waiver of Vision33’s right to do so for subsequent Renewal Terms.
    • Increasing Authorized Users. Customer may purchase an increase to the number of Authorized Users at any time during the Initial Term or a Renewal Term by entering into an additional Order Form which will become an integral part of the original Order Form. The subscription term for such additional Authorized Users will be coterminous with the Initial Term or the then-current Renewal Term, irrespective of the effective date of the additional Order Form. The fees for the increase to the number of Authorized Users will be prorated accordingly to reflect the remaining period of the Initial Term or the then-current Renewal Term. Any increase to the number of Authorized Users during the Initial Term or the then-current Renewal Term will continue to apply for each subsequent Renewal Term, except as otherwise reduced in accordance with Section 6.d. below.
    • Reducing Authorized Users. Customer may reduce the number of Authorized Users set forth in an Order Form as originally entered into or as increased as set out in Section 6.c. above by providing written notice of the reduction to Vision33 at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term. Any such reduction will take effect on commencement of the next following Renewal Term. For the avoidance of doubt, this means Customer is not entitled to reduce the Subscription Fees during the Initial Term or the then-current Renewal Term.
    • Usage Limits. The Subscription Services may be subject to usage limits specified in the Order Form. If Customer exceeds such usage limits, Vision33 may work with Customer to seek to reduce Customer’s usage so that it conforms to such limits. If, notwithstanding those efforts by Vision33, Customer is unable or unwilling to abide by such usage limits, Customer will enter into an Order Form for additional quantities of the applicable Subscription Services promptly upon Vision33’s request and pay any Vision33 invoice for excess usage no later than thirty (30) days after Customer’s receipt thereof.
  7. Confidential Information. From time to time during the Subscription Term, Vision33 and Customer may disclose or make available to the other party information about its business affairs, products, services, pricing, confidential intellectual property, third party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party will not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information to the limited extent required: (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, unless prohibited by law, first have given written notice to the other party so that the other party may seek a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of nondisclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire three (3) years thereafter.

  8. Data Security. Vision33 will maintain and enforce an information security program for the protection of Customer Data, including commercially reasonable administrative, physical, and technical measures designed to: (a) protect the confidentiality, availability and integrity of Customer Data; (b) restore the availability of Customer Data in a timely manner in the event of a physical or technical incident; and (c) ensure the proper disposal and destruction of Customer Data. Vision33 will notify Customer, as required by applicable law, of any actual or reasonably suspected breach of security known to Vision33 that has resulted in, or creates a reasonable risk of, unauthorized access to Customer Data without undue delay, consistent with the legitimate needs of law enforcement and with any measures necessary to determine the scope of the breach.

  9. Privacy Policy. Vision33 complies with its privacy policy available at www.vision33.com (“Privacy Policy”) in providing the Subscription Services. The Privacy Policy is subject to change by Vision33 from time to time. By accessing, using, and providing Customer Data to or through the Subscription Services, Customer acknowledges that it has reviewed and accepted the Privacy Policy, and Customer consents to all actions taken by Vision33 with respect to Customer Data in compliance with the then-current version of the Privacy Policy.

  10. Intellectual Property Ownership; Feedback. Except for the limited rights and licenses expressly granted under this Agreement, as between Vision33 and Customer: (a) Vision33 owns all right, title, and interest, including all intellectual property rights, in and to the Vision33 IP; and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer grants to Vision33 and its affiliates a worldwide, transferable, perpetual, irrevocable, royalty-free license to use and incorporate into their products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or other Authorized Users to Vision33 relating to the Subscription Services.

  11. Warranty.
    • Vision33 Warranty. Vision33 warrants that the Subscription Services will perform substantially in accordance with the applicable Documentation. This warranty will not apply to the extent of any non-performance which is non-material or caused by use of the Subscription Services contrary to the Documentation or Vision33’s instructions, or modification or alteration of the Subscription Services by any person other than Vision33. In the event of breach of this warranty and Vision33 does not cure or correct the non-performance within thirty (30) days following receipt of Customer’s written notice of the breach, Customer may terminate this Agreement, as it relates to the non-performing Subscription Services, and Vision33 will refund any prepaid Subscription Fees relating to the non-performing Subscription Services for the remainder of the Initial Term or the then-current Renewal Term, as the case may be. Such termination and refund constitute Customer’s sole and exclusive remedy for any breach of the warranty in this Section 11.a. Except for the warranty explicitly set forth in this Section 11.a., Vision33 makes no warranties or representations of any kind, whether oral, written, express, implied, or arising by statute, custom, course of dealing, or trade usage, with respect to the Subscription Services. Vision33 specifically disclaims any and all implied warranties or conditions of title, merchantability, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, Vision33 makes no warranty of any kind: (i) relating to third party products, software or services or that the Subscription Services will be compatible or work with any third party software, system or other services; (ii) that the Subscription Services will operate on every device (including mobile devices) even if the device is running the correct version of the operating system identified in the applicable Documentation; (iii) that the Subscription Services will meet Customer’s requirements or achieve any intended result; (iv) that the Subscription Services will be uninterrupted, error free (or that any errors or defects will be corrected), or free of viruses or other harmful components or code; or (v) that any Customer Data will be secure or not otherwise lost or damaged.
    • Customer Warranty. Customer represents and warrants to Vision33 that Customer owns or otherwise has and will have the necessary rights and consents in and relating to Customer Data so that, as used by Vision33 in accordance with this Agreement, it does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights, of any third party or violate any applicable laws, including data protection and export control laws.
  12. Indemnification.
    • Vision33 Indemnification. Vision33 will indemnify, defend and hold harmless Customer from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees (collectively, “Losses”), finally awarded against Customer by a court of competent jurisdiction, or agreed to via settlement approved by Vision33 in writing, as a result of any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Subscription Services, or any use of the Subscription Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Vision33 in writing of the Third-Party Claim, cooperates with Vision33, and allows Vision33 sole authority to control the defense and settlement of such Third-Party Claim. If such a Third-Party Claim is made or Vision33 reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Vision33, at Vision33’s sole discretion, to: (i) modify or replace the Subscription Services, or the affected component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use of the Subscription Services. If Vision33 determines that neither alternative is commercially reasonable, Vision33 will terminate this Agreement, in its entirety or with respect to the affected component or part of the Subscription Services, effective immediately on written notice to Customer and refund any prepaid Subscription Fees relating to the affected component or part of the Subscription Services for the remainder of the Initial Term or the then-current Renewal Term, as the case may be. This Section 12 will not apply to the extent that any Third-Party Claim arises from: (A) modifications or changes made to the Subscription Services by any person other than Vision33 or its subcontractors; (B) use of the Subscription Services in combination with data, services, products, software, hardware, equipment, or technology not provided by Vision33 or authorized by Vision33 in writing; (C) Vision33’s customization of the Subscription Services based on Customer’s specifications or instructions; (D) Customer Data; (E) Third-Party Services; or (F) Customer’s breach of this Agreement. This Section 12 sets forth Customer’s sole remedies and Vision33’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Subscription Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
    • Customer Indemnification. Customer will indemnify, hold harmless, and, at Vision33’s option, defend Vision33 and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that Customer Data, or any use of Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Customer’s or any Authorized User’s use of the Subscription Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Vision33 unless Vision33 consents to such settlement, and further provided that Vision33 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.
  13. Limitation of Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, PURE ECONOMIC LOSS, OR LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) BUSINESS INTERRUPTION; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IF A REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL EITHER PARTY’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, MISREPRESENTATION, RESTITUTION, OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO VISION33 UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING PROVISIONS OF THIS SECTION 13 WILL NOT APPLY TO: (i) THE EXTENT PROHIBITED BY LAW; (ii) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6; (iii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12; OR (iv) CUSTOMER’S VIOLATION OF VISION33’S INTELLECTUAL PROPERTY RIGHTS.

  14. Term and Termination.
    • Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for the initial subscription period specified in the applicable Order Form (the “Initial Term”). Unless terminated earlier in accordance with the terms of this Agreement or either party provides notice to the other party of its intent not to renew at least thirty (30) days prior to expiration of the then-current term, this Agreement will automatically renew for successive terms equal in length to the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Subscription Term”).
    • Termination for Convenience. Either party may terminate this Agreement for any reason upon providing written notice to the other party at least thirty (30) days prior to expiration of the then-current term. Any such termination will be effective at the end of the then-current term. For the avoidance of doubt, in the event of such termination, Customer will pay all Subscription Fees owing for the Subscription Services up to the end of the then-current term regardless if Customer accesses the Subscription Services after providing such termination notice and any Subscription Fees paid in advance by Customer will be non-refundable.
    • Termination for Cause. Each party may terminate this Agreement immediately if the other party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof; or (ii) ceases to operate in the ordinary course of business, becomes insolvent, is unable to pay debts when due, is subject to bankruptcy, receivership or dissolution proceedings, or makes an assignment for the benefit of creditors or similar disposition of its assets. In addition, and without affecting any other available rights or remedies, Vision33 may terminate this Agreement immediately upon written notice if any act or omission by Customer or any other Authorized User results in a suspension described in Section 2.f. above.
    • Consequence of Expiration or Termination. Upon expiration or earlier termination of this Agreement: (i) Customer shall immediately discontinue use of the Vision33 IP; and (ii) if requested in writing by Customer within thirty (30) days after such expiration or earlier termination, Vision33 will make any Customer Data in its possession or control available to Customer for export or download. After such thirty (30) day period, Vision33 will have no obligation to maintain or provide any Customer Data and may thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. No expiration or termination of this Agreement shall affect Customer’s obligation to pay all Subscription Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
    • Survival. Sections 1, 2.d., 2.e., 3.b. (as it relates to Aggregated Statistics), 6, 7, 10, 12, 13, 14.d., 14.e., 18, 19 and 20 of this Agreement shall survive any termination or expiration of this Agreement. No other provisions of this Agreement shall survive such termination or expiration.
  15. Modifications. Customer acknowledges and agrees that Vision33 has the right, in its sole discretion, to modify this Agreement from time to time, and that the modified terms will become effective upon commencement of the next following Renewal Term. Vision33 will provide sixty (60) days’ prior written notice to Customer of any such modifications. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Subscription Services after the effective date of the modifications will be deemed acceptance of the modified terms.

  16. Export Regulation. The Subscription Services utilize technology that may be subject to export control laws. Customer shall not, directly or indirectly, export, re-export, or release the Subscription Services or the underlying technology to, or make the Subscription Services or the underlying technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.

  17. US Government Rights. The Subscription Services and the Documentation are “commercial items” consisting in part of “commercial computer software” and “computer software documentation,” as such terms are used in the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS). In accordance with FAR 12.211 and FAR 12.212, and DFARS 227.7102 and DFARS 227.7202, as applicable, if Customer is an agency of the US Government or any contractor therefor, then the rights of Customer to use, modify, reproduce, release, perform, display, or disclose computer software, computer software documentation, and technical data furnished in connection with the Subscription Services and the Documentation will be pursuant to the terms of this Agreement. This Section 17 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation, or technical data.

  18. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money)
    due to causes beyond its reasonable control, including, but not limited to, fire, flood, explosion, labor disputes, strikes, lockouts, shortages of or
    inability to obtain labor, energy, raw materials, transportation or supplies, denial-of-service attacks, interruption or failure of the internet or any
    telecommunications or utility service, failures in third party hosting services, virus attacks or hackers, failure of third party software or hardware, war,
    acts of terror, riot, natural disaster, acts of God or governmental action.

  19. Jurisdiction-Specific Terms.
    • The following provisions apply if Customer is domiciled in Canada:
      • The Vision33 contracting entity is Vision33 Canada Inc., a Newfoundland and Labrador corporation with offices at 210 Water Street, Suite 400, St. John’s, Newfoundland and Labrador, A1C 1A9.
      • This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including noncontractual claims or disputes) shall be governed by and construed in accordance with the laws of the Province of Newfoundland and Labrador and the federal laws of Canada applicable therein, without reference to conflicts of law principles. Each party irrevocably: (A) attorns to the exclusive jurisdiction of the courts of Newfoundland and Labrador and all courts of appeal therefrom with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.
    • The following provisions apply if Customer is domiciled in a country that is part of the United Kingdom:
      • The Vision33 contracting entity is Vision33 Limited, registered in England and Wales under company number 03786914 with registered office at 260/268 Chapel Street, Salford, Lancashire, M3 5JZ.
      • This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including noncontractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales, without
        reference to conflicts of law principles. Each party irrevocably: (A) attorns to the exclusive jurisdiction of the courts of England
        and Wales with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such
        claims or disputes.
    • The following provisions apply if Customer is domiciled in a country that is a member of the European Union:
      • The Vision33 contracting entity is zedIT Europe Limited, doing business as Vision33, an Irish company with offices at Castleyard, 20/21 St Patrick’s Road, Dalkey, Co. Dublin, A96 AX92.
      • This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including noncontractual claims or disputes) shall be governed by and construed in accordance with the laws of the Republic of Ireland, without reference to conflicts of law principles. Each party irrevocably: (A) attorns to the exclusive jurisdiction of the courts of the Republic of Ireland with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.
    • The following provisions apply if Customer is domiciled in the United States or any other country that is not referenced in Sections 19.a., 19.b. or 19.c. above:
      • The Vision33 contracting entity is Vision33 Inc., a Delaware corporation with offices at 6 Hughes, Suite #220, Irvine, California, 92618.
      • This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including noncontractual claims or disputes) shall be governed by and construed in accordance with the internal laws of the State of California, without reference to conflicts of law principles or rules. Each party irrevocably: (A) attorns to the exclusive jurisdiction of the federal courts of the United States or the courts of the State of California in each case located in the city of Irvine and County of Orange and all courts of appeal therefrom with respect to any such claims or disputes; and (B) waives any right it may have to a jury trial in respect of any such claims or disputes.
    • The following provisions apply if Customer is domiciled in a country that is part of the United Kingdom or a country that is a member of the European Union:
      • Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 19.e. is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Section 19.e.:
        (A)  “Applicable Laws” means: (I) where Customer is domiciled in a country that is a member of the European Union and for so long as and to the extent that they apply to Customer, the law of the European Union and/or the law of any member state of the European Union; and (II) where Customer is domiciled in a country that is part of the United Kingdom, the law of the United Kingdom or a part of the United Kingdom;
        (B)  “Data Protection Legislation” means: (I) where Customer is domiciled in a country that is a member of the European Union, the General Data Protection Regulation ((EU) 2016/679) and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data; and (II) where Customer is domiciled in a country that is part of the United Kingdom, all applicable data protection and privacy legislation in force from time to time in the United Kingdom including the retained European Union law version of the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
        (C)  “Jurisdiction” means: (I) where Customer is domiciled in a country that is a member of the European Union, the European
        Economic Area; and (II) where Customer is domiciled in a country that is part of the United Kingdom, the United Kingdom.
      • The parties acknowledge that for the purposes of the Data Protection Legislation, Customer is the controller and Vision33 is the processor. The scope, nature and purpose of processing by Vision33, the duration of the processing and the types of personal data and categories of data subject are as follows:
        (A) Scope, Nature and Purpose of Processing – To enable Vision33 to provide the Subscription Services to Customer in accordance with this Agreement;
        (B) Duration of Processing – With respect to the Subscription Services in relation to which the processing is carried out, for the duration of this Agreement in relation to those Subscription Services;
        (C) Types of Personal Data – Depending on the nature of the Subscription Services the types of personal data will vary but may include Authorized User names and email addresses and any Customer Data relating to existing employee records and business partner records, including names, addresses, phone numbers and financial information; and
        (D) Categories of Data Subject – Depending on the nature of the Subscription Services provided this may include Customer’s employees, consultants, contractors, agents, end users, customers, suppliers and other business partners of Customer.
      • Without prejudice to the generality of Section 19.e.i., Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the personal data to Vision33 for the duration and purposes of this Agreement. Vision33 will comply with instructions received from Customer with respect to the personal data unless such instructions: (A) are legally prohibited; or (B) require changes or modification to the Subscription Services. Vision33 will promptly notify Customer if Vision33 cannot comply with an instruction. Vision33 will not be liable for, and Customer will indemnify, defend and hold harmless Vision33 against, any claim brought by a data subject arising from any act or omission by Vision33 to the
        extent that such act or omission resulted directly from Customer’s instructions.
      • Without prejudice to the generality of Section 19.e.i., Vision33 shall, in relation to any personal data processed in connection with the performance by Vision33 of its obligations under this Agreement:
        (A) process that personal data only on the documented written instructions of Customer unless Vision33 is required by Applicable Laws to otherwise process that personal data. Where Vision33 is relying on Applicable Laws as the basis for processing personal data, Vision33 shall promptly notify Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Vision33 from so notifying Customer;
        (B) ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in
        a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
        (C) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
        (D) not transfer any personal data outside of the Jurisdiction unless the following conditions are fulfilled: (I) Customer or Vision33 has provided appropriate safeguards in relation to the transfer; (II) the data subject has enforceable rights and effective legal remedies; (III) Vision33 complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (IV) Vision33 complies with reasonable instructions notified to it by Customer with respect to the processing of the personal data;
        (E) assist Customer, at Customer’s expense, in responding to any request from a data subject and in ensuring compliance with Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
        (F) notify Customer without undue delay on becoming aware of a personal data breach;
        (G) at the written direction of Customer in accordance with Section 14.d., delete or return personal data and copies thereof to Customer on termination of this Agreement unless required by Applicable Laws to store the personal data; and
        (H) maintain complete and accurate records and information to demonstrate its compliance with this Section 19.e. and, at Customer’s expense and subject to Section 7, allow for audits by Customer or Customer’s designated auditor.

      • Customer consents to Vision33 appointing third party processors of personal data under this Agreement to the extent deemed necessary by Vision33 to perform the Subscription Services. Vision33 confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this Section 19.e. and in either case which Vision33 confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between Customer and Vision33, Vision33 shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this `Section 19.e..
      • Vision33 may, at any time on not less than 30 days’ prior written notice to Customer, revise this Section 19.e. to the extent necessary to comply with any changes to the Data Protection Legislation or to reflect any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
  20. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. All notices required or permitted under this Agreement will be in writing and will be deemed to be duly given when delivered to: (a) Vision33 at legal@vision33.com; (b) Customer at the email address set forth in the Order Form; or (c) such other email address as may be specified by either party to the other party in accordance with this Section 20. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The waiver of any breach or default of any provision of this Agreement will not be effective unless set forth in writing signed by the party so waiving and will not constitute a waiver of any other right hereunder or of any subsequent breach or default. Neither party may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party; provided that, upon prior written notice to the other party, either party may assign this Agreement to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party any right, benefit or remedy of any nature whatsoever. Section headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement the words “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”, and the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole.