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By signing an Order Form which references these Terms and Conditions (together, the “Agreement”), BetterWorks Systems, Inc. (“BetterWorks”) and the customer specified on such Order Form (“Customer”) each signifies that it has read, understands, and agrees to the be bound by the terms and conditions hereof. BetterWorks and Customer may be referred to individually as a “Party” and collectively as the “Parties.” For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to these terms and conditions through their undersigned authorized representatives.####1. SUMMARY##These Terms and Conditions govern the use by the Customer of any services (the “Services”) ordered by Customer from BetterWorks and set forth in one or more Order Forms.####2. ORDER FORMS, TRAINING AND SUPPORT##2.1 Order Forms##Customer may purchase subscriptions and access to the Services, by executing one or more “Order Forms” with BetterWorks. BetterWorks will provide the Services identified in the Order Form(s) pursuant to the terms and conditions of this Agreement.####2.2 Training, Implementation Services, and Support##If applicable, BetterWorks will provide training, implementation services, and support as specified on the applicable Order Form(s) and Exhibits.####3. FEES AND PAYMENT##3.1 Fees##In consideration for the services provided by BetterWorks hereunder, Customer agrees to pay BetterWorks the fees set forth in this Agreement and the applicable Order Form(s) (collectively, the “Fees”). All Fees are non-refundable.####3.2 Payment Terms##Unless otherwise set forth in an Order Form, Customer will pay to BetterWorks (by wire transfer or other method mutually acceptable to the Parties) all Fees within thirty (30) days of the applicable invoice. Late payment of Fees may be subject to interest on the past due amount at the lesser of 1.5% per month or the maximum rate permitted by applicable law.####3.3 Taxes##All Fees are exclusive of, and Customer shall pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Fees, excluding only taxes based on BetterWorks net income. Customer agrees to indemnify, defend, and hold BetterWorks, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments as may be required by law.####TERM AND TERMINATION##4.1 Order Form Term##The “Initial Term” of each Order Form will commence on the Effective Date set forth on such Order Form, and will continue until the date set forth on such Order Form. Unless otherwise set forth on the relevant Order Form, each Order Form will automatically renew after the Initial Term for successive renewal terms of the duration identified on that Order Form (each a “Renewal Term”), unless either Party gives prior notice of its intent not to renew such Order Form at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term. BetterWorks may increase the Fees due under Order Forms for Renewal Term by providing notice to Customer of such increase at least sixty (60) days before the commencement of the upcoming Renewal Term.####4.2 Agreement Term##The “Term” of this Agreement will commence on the Effective Date and will continue until either (a) this Agreement is terminated in accordance with Section 5 below, or (b) all Order Forms under this Agreement have expired or been terminated in accordance with this Agreement.####5. Termination##5.1 Termination By Either Party##Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement if the other Party materially fails to perform or observe any term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party.####5.2 Effect of Termination##The following sections of this Agreement will survive termination or expiration of this Agreement for any reason: Sections 3, 5.2, 6-12. All other rights and obligations of the Parties under this Agreement will expire and terminate upon the earlier of the termination or expiration of this Agreement. After any expiration or termination of this Agreement, and upon Customer’s request, BetterWorks will provide Customer with access to the Content in the possession of BetterWorks for a period of thirty (30) days, in the then-current standard export format or another industry-standard format mutually agreed by the Parties, after which such Content will be deleted.####6. LICENSES, RESTRICTIONS, AND RESPONSIBILITIES##6.1 From BetterWorks##Subject to the terms and conditions of this Agreement and the applicable Order Form(s), BetterWorks hereby grants to Company a limited, worldwide, nonexclusive, non-transferable, royalty-free right and license (without the right to sublicense), during the applicable Order Form Term(s), to access and use the Services.####6.2 From Company##Company hereby grants to BetterWorks a limited, worldwide, non-exclusive, non-transferable, royalty-free right and license to use, modify, create derivative works of, copy, publicly perform, publicly display and distribute the Content and Company Data solely for purposes of providing the BetterWorks Service to Company and performing BetterWorks’ other obligations under this Agreement. BetterWorks acknowledges and agrees that it has no right, title or interest in or to the Content and Company Data other than those rights granted or allowed in this Agreement. The license granted in this section will terminate upon termination of this Agreement.####6.3 Company Data##As between Company and BetterWorks, Company will retain sole and exclusive ownership of all Company Data. “Company Data” means data supplied by Company or end users to BetterWorks, and data relating to the use of the BetterWorks Service by Company or end users. Notwithstanding the foregoing, Company Data does not include De-Identified Data. Company hereby grants BetterWorks a worldwide, non-exclusive, royalty-free, transferable license during the Term to use and make available the Company Data for the purposes of fulfilling its obligations under this Agreement.####6.4 Use of the Services##Customer may use the Services only as permitted under the terms and conditions of the Agreement or other written agreements between the Parties. Customer will not modify, make derivative works of, disassemble, decompile or reverse engineer the Sites, Services, or any component thereof (except to the extent expressly permitted by law).####6.5 Usage Limits##Services are subject to usage limits, including the quantities specified in Order Forms. A “User” is an Individual who is authorized by Customer to use the Service, for whom Customer has ordered the Service, and to whom Customer has supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors and third parties with which Customer transacts business. Unless otherwise specified, (a) a quantity in an Order Form refers to the number of Users, and the Service may not be accessed by more than the number of Users, and (b) a User’s identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service. If Customer elects to increase the contractual usage limit by adding additional Users, an amendment to the Order Form or separate Order Form will be executed for additional quantities of the applicable Services and Customer will pay the associated invoice accordance with Section 3 (Fees and Payment). Both Parties acknowledge and agree that Customer can increase the Users at any time throughout the Term of the Agreement, however Customer can decrease the number of Users only at the end of the then-current term.####6.6 Account##Customer agrees that Customer is solely responsible for maintaining the confidentiality of Customer’s username, account number and passwords and solely responsible for any unauthorized usage. Each Party agrees to immediately notify the Other Party of any unauthorized use of Customer’s account of which Party becomes aware.####6.7 Content##Customer agrees that it is solely responsible for the content of all visual, written or audible communications, files, documents, videos, recordings, and any other material (“Content”) displayed, posted, uploaded, stored, exchanged or transmitted on or through the Service. Under no circumstances will BetterWorks be liable to Customer for any loss or damages: (i) arising from any Content, or Content related errors or omissions; or (ii) incurred as a result of the use of, access to, or denial of access to the Content. Customer understands and agrees that by displaying, posting, uploading, storing, exchanging or transmitting Content while using the Services or otherwise providing Content to a BetterWorks website or space (“Site”), Customer automatically grants (and warrants and represents it has a right to grant) to BetterWorks, solely for the purpose of offering the Sites and/or the Services to Customer, a world-wide, royalty-free license to use, modify, publicly perform, publicly display, reproduce and distribute the Content, during the course of this Agreement and any delivery of Services. BetterWorks has no control over what Customer or its users of the Service (“Users”) post or submit to a Site and cannot guarantee the accuracy of any information submitted by any User. Customer shall contact BetterWorks Customer Support if Customer becomes aware of misuse of the Services by any person. BetterWorks may without notice or liability investigate any complaints or suspected violations of this Agreement that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating Customer or any User’s access to a Site or Services, however, BetterWorks also reserves the right not to take any action.####6.8 Privacy##Customer acknowledges and agrees that BetterWorks does not monitor or disclose Content, except as needed to provide the Services, as instructed by Customer, or as otherwise required by law.####6.9 De-Identified Data##Notwithstanding anything to the contrary in this Agreement, BetterWorks is permitted to use De-Identified Data for any purpose without restriction or limitation (and BetterWorks is permitted to create De-Identified Data using Company Data and end user data), provided such use is in compliance with applicable Law. “De-Identified Data” means any information or data generated, provided, collected, derived, or created in connection with use or operation of the BetterWorks Service which (i) has had end user or Company identifiers stripped from such information or data, (ii) is usage information or system performance data (e.g., usage statistics, system performance information, popular features, success criteria, and similar information about usage or performance of the BetterWorks Service) provided that such information does not refer to Company or any particular end user, or (iii) is aggregated data compiled by BetterWorks for market research purposes or for improving the BetterWorks Service and which does not refer to Company or any particular end user. For purposes of the Agreement, De-Identified Data will be regarded as BetterWorks’ Confidential Information.####7. CONFIDENTIALITY AND PUBLICITY##7.1 Nondisclosure##Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement, and only to the extent necessary for such purposes, and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know, and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.####7.2 Exceptions##Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.####7.3 Equitable Relief##The Receiving Party agrees that a breach of this Section 7 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.####7.4 Publicity##BetterWorks may refer to Customer as a BetterWorks customer in sales presentations and marketing materials. Customer also agrees to participate in the BetterWorks reference program by working with a BetterWorks representative to develop a Customer profile for use on BetterWorks.com and for other marketing activities, at the discretion of BetterWorks (the profile will include Customer’s logo and a quote from a Customer executive, and will be subject to Customer’s prior review and approval, which will not be unreasonably withheld or delayed).####7.5 Feedback##Customer may be asked to provide feedback regarding Customer’s use of the Service(s). Customer agrees that BetterWorks is free to use and incorporate into BetterWorks products and services any suggestions, ideas, recommendations, bug reports, or other feedback that Customer provides to BetterWorks without payment of compensation to Customer.####8. COPYRIGHT, MARKS, AND INTELLECTUAL PROPERTY##8.1 Copyright##Customer retains copyright and any other rights it already holds in Content which Customer submits, stores, posts or displays on or through, the Services. Customer may not post, store, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. BetterWorks may deny access to the Sites or the Services to any User who is alleged to infringe another party’s copyright.####8.2 Use of Customer’s Name and Logo##Customer agrees that BetterWorks may use Customer’s name, logo, and other trademarks or service marks of Customer (collectively “Customer’s Trademarks”) to create a co-branded Service website as part of delivery of the Services. Nothing in this Agreement transfers to BetterWorks any right, title, or interest in or to the Customer’s Trademarks, and all goodwill arising from use of the Customer’s Trademarks will inure to the Customer’s benefit.####8.3 Betterworks IP##Customer acknowledges that in using the BetterWorks Service, Customer may have access to or might be permitted to use documents, software, works of authorship, inventions, technology, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, and other tangible or intangible technical material or information (collectively, “BetterWorks Technology”), and that the BetterWorks Technology is covered by or subject to Intellectual property rights owned or licensed by BetterWorks (collectively, “BetterWorks IP Rights”). No license or other rights in or to the BetterWorks Technology or BetterWorks IP Rights, even if developed, invented, delivered, or authored by BetterWorks under or in connection with this Agreement, are granted, assigned, licensed or conveyed to Customer, and all such BetterWorks Technology and BetterWorks IP Rights are hereby expressly reserved exclusively by BetterWorks.####WARRANTIES##9.1 Disclaimer of Warranties##EXCEPT TO THE EXTENT EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER), THE BETTERWORKS SERVICE AND BETTERWORKS CONTENT ARE PROVIDED “AS IS,” AND BETTERWORKS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.####BETTERWORKS HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETTERWORKS FURTHER DOES NOT REPRESENT OR WARRANT THAT THE BETTERWORKS SERVICE OR ANY INFORMATION PROVIDED THEREFROM WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR FREE OF VIRUSES, NOR DOES BETTERWORKS WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH THE BETTERWORKS SERVICE.####10. LIMITATION OF LIABILITY##10.1 Limitation of Liability##NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID (OR DUE) BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENT).####10.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES##IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES.####THE LIMITATIONS IN THIS SECTION 10 APPLY REGARDLESS OF (i) WHETHER EITHER PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) THE FORM OF CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW####11. INDEMNIFCATION##11.1##Each Party shall indemnify, defend, and hold harmless the other Party and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees), as a result of any third-party claim, demand or action (collectively, a “Claim”) arising from a breach or alleged breach of its representations or warranties herein. BetterWorks shall indemnify, defend and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns from and against any Claims arising from infringement or alleged infringement of any third party intellectual property right only with respect to the technology underlying the BetterWorks Service. Customer shall indemnify, defend and hold harmless BetterWorks and its officers, directors, consultants, employees, successors and permitted assigns made or brought against BetterWorks by a third party alleging that Customer’s data or use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law.####11.2 Indemnification Procedure##The Parties’ obligations under Section 11 are the Parties’ entire respective liability and sole and exclusive remedies for infringement or misappropriation actions and third party liability of any kind relating to this Agreement, and are conditioned upon the indemnified company and individuals: (a) providing the indemnifying Party with prompt written notice of the lawsuit or action (though any failure to give notice will only affect the indemnifying Party’s obligations to the extent such failure materially impaired the indemnifying Party’s ability to effectively defend or settle the lawsuit or action); (b) giving the indemnifying Party sole control of the defense of the lawsuit or action and any related settlement negotiations (though the indemnified company and individuals may participate in the defense and settlement at their own expense, and the indemnifying Party may not enter into any settlement that adversely affects the indemnified company and individuals’ respective interests to a material degree without their written consent); and (c) providing to the indemnifying Party (at the indemnifying Party’s expense) all assistance, information and authority reasonably required to effectively defend or settle the lawsuit or action.####12. GENERAL##12.1 Governing Law, Jurisdication and Venue##The Agreement is governed by the laws of the State of California and the United States, without regard to any conflicts-of-laws provisions or rules. The exclusive jurisdiction and venue for any legal proceedings or actions arising out of or relating to the Agreement will be the California State and U.S. federal courts located in Santa Clara County, California, and both Parties hereby submit to the personal jurisdiction of those courts and irrevocably waive any objection they may have to such venue.####12.2 Prevailing Party Attorneys’ Fees##If the Parties litigate any issue relating to the Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees, costs and expenses (including, without limitation, expert witness fees and costs of appeal).####12.3 Injunctive Relief##The Parties acknowledge and agree that any breach or threatened breach of the Agreement may cause harm for which money damages may not provide an adequate remedy. Accordingly, the Parties agree that in the event of a breach or threatened breach of the Agreement, in addition to any other available remedies, each Party may seek temporary and permanent injunctive relief without the need to post any bond or other security that otherwise may be required under applicable law.####12.4 Assignment##Neither party shall assign or transfer, by operation of law or otherwise, any rights or obligations under this Agreement without the prior written consent of the other party, except in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a direct competitor of the other party.####12.5 Waiver; Severability; Interpretation##No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If a court of competent jurisdiction finds any provision of the Agreement to be unenforceable or invalid, then to the maximum extent permitted by law, that provision will be modified and interpreted to accomplish the objectives of such provision, or severed, and the remaining provisions will remain in full force and effect. Each Party has had a reasonable opportunity to participate in the drafting of the Agreement, and to consult its own counsel with respect to that drafting; accordingly, no ambiguity in the Agreement will be construed against either Party by virtue of such Party’s role in drafting the Agreement. The Agreement does not obligate either Party to proceed with any other activities. The Agreement also does not give rise to any expectation of compensation, or to any other inducement to take (or refrain from) any other action except as expressly set forth in the Agreement.####12.6 Counterparts##The Agreement may be signed in duplicate originals, or in separate counterparts, which are effective as if the Parties signed a single original. A facsimile, scanned, pdf or other electronic version of an original signature transmitted to the other Party is effective as though the original were sent to the other Party.####12.7 Entire Agreement; Changes##The Agreement (including the Order Form and its Exhibits) constitute the entire agreement between the Parties regarding this subject matter, and supersede all prior agreements, representations and understandings, oral or written, between the Parties regarding this subject matter. The Agreement may not be amended, modified or supplemented except by a written amendment signed by an authorized representative of each Party.
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