1. Order Form

Services will be ordered by Customer pursuant to executed order form (each, an “Order Form”). Each Order Form will include the specific services being ordered (the “Services”) and the associated fees and any additional terms as applicable. Each additional Order Form upon execution by both parties will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries or affiliates may also order services under this Agreement by entering into an Order Form signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Order Form.

2. Software/Service

2.1. Rights for Use
Subject to timely payment of all applicable fees, Company hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferrable (except as expressly permitted hereunder), limited right to access and use the Service subject to the terms and conditions herein.

2.2. Accounts; Security
Access to or use of certain portions and features of the Service may require you to create an account (“Account”). Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its account(s), including your password. Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the accounts. A user license is required for each person utilizing Customer’s master account, or other data generated through the use of the [Service. Any sharing of such data to reduce the number of licenses required or sharing account information in any way is strictly prohibited.

2.3. Restrictions on Use
In accessing or using the Service, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Service; (c) apply systems to extract or modify information in the Service using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Service any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others (e) input or transmit through or to the Service any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Service or grant unauthorized access thereto; (f) use or access the Service for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes; or (g) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (h) use the Service to compete with Company in any way; or (i) permit any third party to use or access the Service other than your direct employees or contractors who are acting on your behalf.

2.4. Maintenance
Customer agrees that Company may install software updates, error corrections, and software upgrades to the Service as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Service for purposes of this Agreement.

2.5. Applicable Laws
Customer’s access to and use of the Service is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Service or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws is the responsibility of Customer.

2.6. Suspension of Service
Company has the right to immediately suspend the Service (a) in order to prevent damage to or degradation of the Service or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Customer prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.

2.7. Terms of Use/Privacy Policy
Customer acknowledges and agrees to the terms of the Privacy Policy. Each user and end user of the Service must acknowledge and agree to the Terms of Use and Privacy Policy before they have access to the Services.

3. Data Licenses

3.1. Customer Content
As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) is owned by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service. Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services.

3.2. Aggregated Data
Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Service by Customer and its end users, (b) collect metrics and data included in the Company Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Company Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.

4. Third Party Services

Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Service, framing of all or any portion of the Service, and the extraction of data from the Service. Company reserves the right to disable any unauthorized links or frames. Company will not be responsible and expressly disclaims any liability for any third party services that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service, Customer thereby authorizes Company to send and receive Customer Content with any such activated third party service and represents and warrants to Company that Customer has all appropriate right and title to grant such authorization.

5. Intellectual Property

5.1. Proprietary Rights
Company’s intellectual property, including without limitation the Service, its trademarks and copyrights and excluding any Company Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.

5.2. Feedback
Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.

6. Payment and Taxes

6.1. Payment
Fees are set forth in the applicable Order Form (“Fees”). Company will send invoices to the contact(s) provided in an Order Form. Unless otherwise set forth in the applicable Order Form, Fees are due and payable by Customer in full upon the commencement of the term as set forth in the applicable Order Form. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Company, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time after the first year, which right will include without limitation the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge. Unless otherwise noted in the Order Form, all Fees are payable in United States Dollars, and non-refundable.

6.2. Taxes
Company Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. Term and Termination

7.1. Term
This Agreement will be effective as of the stated date in an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Order Form the initial term will be for one year, thereafter, the Order Form will automatically renew for successive periods equal to the initial term, unless cancelled by either party in accordance with this Agreement.

7.2. Termination
Either party may terminate this Agreement for any reason by providing 30 days’ prior written notice. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.

7.3. Effects of Termination
Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Service, (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.

7.4. Survival
Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.

8. Confidential Information

8.1. Confidential Information
“Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.

8.2. Non-Disclosure
Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.

8.3. Exclusions
The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.

9. Disclaimers

COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.

10. Limitation of Liability

IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.

11. Indemnification

Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Service.

12. Publicity

Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.

13. Assignment

Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.

14. Notices

Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: [email protected]. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Service.

15. Attorney’s Fees

In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.

16. Relationship of the Parties

This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.

17. No Third Party Beneficiaries

. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

18. Equitable Remedies

Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.

19. Force Majeure

Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.

20. Limitation of Claims

No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.

21. FCPA Compliance

Customer will comply with the United Stated Foreign Corrupt Practices Act (as amended) and any analogous law or regulations existing in any other country or region in the Territory, in connection with its performance under this Agreement. Customer shall not make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, candidates for government or political office, or representatives of other businesses or persons acting on behalf of the foregoing, that would violate any applicable law, rule or regulation.

22. Export Compliance

Customer must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Service including technical data and any Service deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is responsible for ensuring that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Company for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.

23. Governing Law, Jurisdiction and Venue

This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Colorado, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal or state courts located in of Colorado. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

24. Severability, Waiver and Amendment

If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.

25. Counterparts, Entire Agreement and Order of Precedence

This Agreement or any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.

1. BACKGROUND

1.1. Company has developed a club business management platform (“Platform”) which allows Customer and its Users (as defined below) to provide clients (“Clients”).

1.2. Company has also developed the Application which allows the Customer and its Users to engage with Clients through a mobile application.

1.3. Company has also developed the Branded Application to allow Customer to ‘white-label’ (by using a web sub-domain of the Platform but which operates under the web domain name of Company) which has the effect of placing the Customer’s trademarks and logo on to and to front the Application and therefore making the Application and Platform available to Customer, its Users, and Clients through a Customer-branded mobile application.

1.4. By purchasing the Application, the terms of this Agreement (including this Addendum) will govern and apply to your purchase and ongoing use of the Service, which including the Application.

DEFINITIONS.

Capitalized terms not otherwise defined in this Addendum shall have the meaning set forth in the Terms of Service. The following definitions apply to this Addendum.

Documentation: means software information, being technical information used, or useful in, or relating to the design, development, use or maintenance of any version of the Application or use of the Platform.

User: any person the Customer permits access to use the Application to gain access to the Service and/or who has access to the Service.

User Account: the account held and maintained with the Customer by any User as a prerequisite to accessing and using the Application on the Platform to gain access to the Service and in relation to which the User has first agreed the Terms of Use.

User Content: all text, information, data, images, audio or video material, in whatever medium or form, inputted by any User in relation to the use of the Application or the Service.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks.

Mark Guidelines: the mark guidelines set out in Schedule 1.

Marks: any trademarks, trade names, service marks, trade dress, logos, URLs and domain names, any identifying slogans and symbols, any abbreviation, contraction or simulation of any of the aforementioned items and the “look and feel” of a party to this Agreement, whether or not registered.

Normal Business Hours: 8.00 am to 6.00 pm local MT time, each business day.

Open-Source Software: any software licensed under any form of open-source license meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public License (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Service or the Software, or with which the Service or the Software is compiled or to which it is linked.

Platform: Company’s infrastructure and cloud computing platform and runtime environment to which access is given by the Application being and upon which the Service are offered and delivered to Users.

Security Event: any unauthorized third party access to the Service or the Platform; or any use of the Service by the Customer or any User that is in breach of the Terms of Use and has the potential to materially impact Company’s business activities, the Platform, the Service or use of the Service by any User or other customer of Company or any of that User’s or Customer’s Clients; or any Vulnerability or Virus introduced into the Platform or the Service by (or facilitated through) the Customer or any User.

Software: the online software applications and tools provided by Company from time to time as part of the Service, including any updates Company may make to such applications and tools from time to time.

Terms of Use: those Terms of Use (https://www.clubwise.com/us/terms-of-use/) which are required to be agreed by authorized end users and Users before they have access to the Platform and the Service.

Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

3. SUBSCRIPTIONS AND USE.

3.1. Subject to the Customer’s compliance with this Agreement and payment all Fees, subject to the terms of this Agreement, Company hereby grants to the Customer:

3.1.1. a worldwide, non-exclusive, non-transferable, non-sub licensable, limited license for Customer, Uses and its Clients to access and use the Application;

3.1.2. if Customer purchases a Branded Application, a non-exclusive, non-transferable right during the term of this Agreement to: (a) place and integrate the Branded Application so as to front and ‘white label’ the Platform so as to enable access thereto to Users branded with Customer’s icon and branding Marks; (b) permit Users with a User Account to use the Service and the Branded Application in accordance with the Terms of Use; (c) to provide the Service, solely as integrated through the Branded Application, to Users and to permit those Service to be used by Users in association with the Customer’s Marks; and (d) to promote the Branded Application as a web sub-domain of Company which gives access to the Platform and the Service to prospective and actual Users.

3.2. In relation to its Users, the Customer undertakes that:

3.2.1 Customer will not allow or suffer any User Account to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Service;

3.2.2 it shall disable any User’s access to the Service promptly upon termination or suspension of such User’s User Account or services contract with the Customer or if such User does (or omits to do) anything which then places the Customer in breach of any term of this Agreement;

3.2.3 it shall maintain an up-to-date list of current Users and provide such list to Company within five business days of Company’s written request at any time or times;

3.2.4 it shall permit Company or Company’s designated auditor to audit the Service taken through the Application by the Customer and its Users in order to establish the name and password of each User and Company’s data processing facilities to audit compliance with this Agreement. Such audit may be conducted no more than once per quarter, at Company’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

3.2.5 if any such audit reveals that any password has been provided to any individual who is not an User, then without prejudice to Company’s other rights, the Customer shall promptly disable such passwords and Company shall not issue any new passwords to any such individual; and

3.2.6 if any such audit reveals that the Customer has underpaid Fees for Service to Company, then without prejudice to Company’s other rights, the Customer shall pay to Company an amount equal to such underpayment as calculated in accordance with the Fees for each such User Account within ten business days of the date of the relevant audit.

3.3 The Customer shall comply with the Terms of Use in relation to the Application and Platform and shall ensure that its Users also comply.

3.4 Whenever Company reasonably suspects that there has been a breach of the Terms of Use, the Customer shall permit Company to audit all Applications and Customer‘s content to ensure compliance with the Terms of Use by the Customer and all Users. Such right to audit shall be exercised at Company’s expense, with reasonable prior notice and in such a manner as not to substantially interfere with the Customer’s normal conduct of business. For clarity, the parties acknowledge that Company is not obliged to carry out any such audit.

3.5 If the Customer becomes aware that the Application or a User’s use of the Application or Service breaches the Terms of Use, the Customer shall suspend the relevant User Account and that User’s access to the Application and Platform.

3.6 If the Customer is in breach of this Section, Company may (but shall not be obliged to) disable the Customer’s Application fronting the Platform and/or the relevant User’s access to the Application or any material that breaches the Terms of Use; and disable the relevant User Account for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights against and without prior notice to the Customer or the relevant User.

3.7 Notwithstanding any other provision in this Agreement, if there is a Security Event, Company may, without liability or prejudice to its other rights and without prior notice to the Customer or any User, remove the relevant Customer content and disable the use of the Application, any User Account and the relevant Application until the relevant Security Event has been resolved. Company shall give the Customer written notice as soon as is reasonably practicable of the nature of the relevant Security Event.

3.8 The Customer shall not:

3.8.1 except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;

3.8.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

3.8.3 access all or any part of the Platform or the Service in order to build a product or service which competes with the Service and/or the Documentation;

3.8.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or the Service available to any third party except the Users with User Accounts who have agreed the Terms of Use;

3.8.5 attempt to obtain, or assist third parties in obtaining, access to the Platform and/or the Service, other than as provided under this Section; or

3.8.6 introduce, or permit the introduction of, any Virus or Vulnerability into the Platform and/or the Service.

3.9 The Customer shall:

3.9.1 prevent any unauthorized access to, or use of, the Platform and/or the Service and, in the event of any such unauthorized access or use, promptly notify Company; and

3.9.2 comply with any further reasonable requests from Company governing the use of the Platform, Service, or the Brand Application.

3.10 The rights provided under this Section are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer or any of Customer’s Users directly.

Any Open-Source Software provided by Company may be used according to the terms and conditions of the specific license under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimers set forth in the Service Agreement. Such terms and conditions shall govern such use to the extent that they expressly supersede this Agreement.

4. APPLICATION SERVICES.

4.1 Company shall, during the term of this Agreement:

4.1.1 provide the Service and access to the Platform and make available the Documentation provided by Company to the Customer on and subject to the terms of this Agreement; and

4.1.2 enable Users to connect via the internet to any Application that the Customer has deployed on the Platform and to use in accordance with this Agreement such of the Service as have been integrated into that Application.

4.2 Company will, as part of the Service and at no additional cost to the Customer, provide the Customer with the Company’s standard customer support services during Normal Business Hours. Company may amend the Support services in its sole and absolute discretion from time to time.

4.3 Notwithstanding any other provision in this Agreement, the Customer acknowledges and agrees that it is responsible for technical support of the Application.

4.4 From time to time Company may, at entirely its own discretion, modify the Platform or Service by issuing updates and make new features, undertake maintenance developments and fixes, works, functionality, applications or tools available in respect of the Application, Platform and/or Service, provided that Company shall give the Customer written notice of any such material modifications and any such material new features, functionality, applications or tools.

5. CUSTOMER OBLIGATIONS.

5.1. The Customer acknowledges and agrees that:

5.1.1. Company may include the Customer’s name or the Customer’s Marks in a list of Company’s customers in any medium or in any link from the Platform to the Customer’s website; and

5.1.2. Company may refer to the Customer, orally or in writing, as a customer of the Service for promotional, marketing, and financial reporting purposes.

5.2. The Customer will:

5.2.1. Provide all necessary cooperation in relation to this Agreement;

5.2.2. Provide all necessary access to such information as may be required by Company to provide the Application, Platform and/or the Service, including security access information and configuration services;

5.2.3. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under this Agreement;

5.2.4. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Company may adjust any agreed timetable or delivery schedule as reasonably necessary;

5.2.5. ensure that the Users use the Platform and the Service in accordance with the terms and conditions of this Agreement, Terms of Use and shall be responsible for breach thereof caused or contributed to by any acts or omissions on the part of any User or Client;

5.2.6. obtain and shall maintain all necessary licenses, consents, and permissions that are necessary for the Customer to hold to allow Company, its contractors, and agents to perform their obligations under this Agreement, including provision of the Service;

5.2.7. ensure that its network and systems comply with the relevant specifications provided by Company from time to time;

5.2.8. not duplicate, share, disseminate in any way, modify or attempt any of such actions in relation to the Marks, the Platform, the Service, the Software or any of Company’s intellectual property whatsoever either by itself or with any third party;

5.2.9. assist Company upon its request concerning responding to and preventing any actual or likely infringement of any of Company’s Intellectual Property Rights or any User doing (or omitting to do) anything that is likely to lead to the Customer being in breach of this Agreement;

5.2.10. be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Company’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s or any User’s network connections or telecommunications links or caused by the internet; and

5.2.11. as between the parties, be responsible for responding to all third party requests concerning the use of the Platform and/or the Service by the Customer or any User.

5.3. The Customer assumes sole responsibility for results obtained from the use of the Platform and/or the Service by the Customer or any User, and for conclusions drawn from such use. Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Company by the Customer or any User in connection with the Platform and/or Service, or any actions taken by Company at the Customer’s direction.

5.4. If Customer purchases a Branded Application:

5.4.1. The Customer shall set up (and pay for ongoing) the relevant Google Development Accounts or Apple Development Accounts (individually each an “Account”, or together “Accounts”), as the case may be, it requires in order to set up the Application and shall notify Google and Apple (with copy to Company), as the case may be, that Company is to be the only administrator of such Accounts that may manage the applications within such Accounts. The Customer will not attempt to manage the Accounts in any way.

5.4.2. The Customer shall give Company notice and details of each Account set up by the Customer (including all access details) relating to this Agreement and shall give Company free unfettered access at all times to all the Accounts in order that Company can administer such Accounts for the purposes of providing access to and use of the Platform and/or the Service by the Customer and Users and to publish and develop applications through such Accounts. In addition, Company shall not be removed from an administration role within the developer account until the agreed subscription has been terminated. Upon termination of this Agreement and cessation of the Application being a web sub-domain of Company, the Customer will notify Google or Apple (with copy to Company), as the case may be, of Company’s cessation as the Accounts’ administrator as and how instructed by Company.

5.4.3. The Customer will ensure that it has all necessary appropriate consents from the Users in place to enable lawful transfer of their personal data to Company as its processor for the duration and purposes of this Agreement so that Company may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf and, without limitation, the Customer shall ensure that all Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all User Content by the Customer or Company in accordance with this Agreement.

5.4.4. The Customer warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.

6. THIRD PARTY PROVIDERS.

The Customer acknowledges that the Service may enable or assist it or any of the Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does, and the Users do, so solely at its own risk. Company makes no representation or commitment to the Customer or any User and shall have no liability or obligation to the Customer or any Users whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer or any User (as the case may be), with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer or the relevant User (as the case may be) and the relevant third party, and not Company. Company recommends that the Customer and Users refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Company does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Platform or the Service.

7. PROPRIETARY RIGHTS.

The Customer acknowledges and agrees that Company and/or its licensors is and shall remain the legal and beneficial owner of all Intellectual Property Rights in the Platform, the Service (whether integrated into a Application or not), the integrated elements constituting the Service, the Software, Company’s Marks and any documentation produced by Company in connection with any of the foregoing. For the avoidance of doubt, nothing in this Agreement assigns or transfers to the Customer or any User any Intellectual Property Rights in the Platform, the Service (whether integrated into a Application or not), the integrated elements constituting the Service, the Software, Company’s Marks and any documentation produced by Company in connection with any of the foregoing. Company confirms that it has all the rights in relation to the Service and Company’s Marks that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement. If the Customer wishes to display Company’s Marks in relation to its use of the Service, the Customer shall first obtain a written license to do so from Company and comply with the Mark Guidelines.

SCHEDULE 1
MARK GUIDELINES

Each party hereby agrees as follows:

1. The Marks must be shown in the exact form in which it is given by the Mark holder.

2. The Marks are only to be used for the purposes of performing the obligations in this Agreement or the actions contemplated by this Agreement.

3. All uses by the Customer of Company Marks shall be in accordance with such quality control standards as Company may promulgate from time to time. The Customer shall refrain from all uses of the Company Marks to which Company objects.

4. The Customer shall not, without Company’s prior written consent in each instance, use any Company Mark in advertising, publicity, marketing or other promotional materials or activities.

5. The Customer shall submit to Company in advance for its approval any marketing materials, and a mock-up of any web pages, which refer to Company, any Company Mark, the Platform or the Service.

6. Any license that may be granted by Company to the Customer to use any of Company’s Marks shall be a non-exclusive, non-transferable, non-assignable, royalty-free license to use such Marks solely for the purposes of exercising the Customer’s rights and performing its obligations under this Agreement.

7. All promotional literature and other materials prepared by the Customer in connection with its promotional obligations under this Agreement shall bear any appropriate copyright and trade mark notices as prescribed by Company.

8. The Customer shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to any of Company’s Mark or will dilute the distinctive nature of any of Company’s Marks.

9. At no time during the Subscription Term or thereafter shall the Customer attack, challenge or file any application with respect to any Company Mark.