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SkyVisualEditor Master Subscription Agreement#### ##Preamble####This Master Subscription Agreement (the “Agreement”) is between TerraSky Inc. (“TerraSky”) and the entity identified as the “Subscriber” on the signature page hereto. This Agreement governs your access and use of the Services (as defined below) made available to You by TerraSky. By accepting this Agreement, you shall be regarded as having agreed to the terms and conditions of this Agreement, including with respect to any Purchase Order (as defined below) entered into hereunder. This Agreement will be effective as of the Effective Date indicated on the signature page hereto.####Article 1 – Definitions####“Affiliate” means any entity which is directly or indirectly controlled by, or is under common control with the entity in question. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity in question. ####“Documentation” means the manuals and other documentation, information and technical data related to the Services and provided, or made available to, Subscriber, including but not limited the “Help Document” that is accessible via electronic means through the Service, and any information identified in the description of the Services, all of which shall be deemed to be incorporated herein by reference.####“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, file, script, agent or program. ####“Order Form” means the document for placing an order hereunder, including attachments thereto, that may be entered into between you and TerraSky from time to time, the form of which is attached hereto as Exhibit A. ## ##“Services” means the (a) the software services described on Exhibit B which are proprietary to, and provided by, Terrasky, and (b) the maintenance and support services described on Exhibit B which are provided by TerraSky, each of which are ordered by you under a Order Form and made available by TerraSky online via customer login pages and other web pages provided by TerraSky. ####“Subscription” means the right of the User to use the Services on a “per Salesforce.com org” basis in accordance with this Agreement during the applicable term specified in the relevant Order Form.####“Users” means individuals who are authorized by you to use the Services, for whom the Subscription to the Services has been purchased, and who have been supplied user identifications and passwords by you (or by TerraSky at your request). Users may include but are not limited to your employees, consultants, contractors and agents.####“You”, “you” or “your” means the company or other legal entity indicated as the “Subscriber” hereunder, on behalf of which you accept this Agreement. ####Article 2 – Confidentiality####2.1 The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder and (a) which are labeled as confidential or proprietary, (b) if orally disclosed are referenced in a writing within 30 days after such oral disclosure noting the confidential nature of the oral disclosure or (c) information that, under the circumstances surrounding its disclosure, should in good faith reasonably be treated as confidential. Confidential Information includes all (i) trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. ####2.2 You and TerraSky shall each (a) hold the Confidential Information of the other in trust and confidence and prevent the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to prevent unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (b) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any Order Form. Each party shall disclose the Confidential Information of the other only to those of its employees, independent contractors, permitted subcontractors (including their employees and independent contractors) (“Representatives”) having a manifest need to know such Confidential Information, provided that such persons and entities have signed a non-disclosure agreement ##containing provisions no less restrictive that those contained in this section. Each party assumes responsibility for compliance with, and any breach of, this Section 2 by its Representatives.####2.3 The obligations of either party under this section will not apply to information or materials that the receiving party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (c) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, or (d) is independently developed by the receiving party without reference to the Confidential Information of the other party. The obligation of non-disclosure shall not apply to the extent that such disclosure is required by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s cost and expense, in the disclosing party’s lawful attempts to seek a protective order or other appropriate protection of its Confidential Information.####Article 3 – Services####3.1 Provision of Services. In exchange for payment of the fees set forth in an applicable Order Form, TerraSky shall make the Services available to you pursuant to this Agreement and the relevant Order Form during a Subscription term, subject to any limitations set forth in this Agreement. You acknowledge and agree that your purchase of the Services hereunder is neither contingent on the provision of any future additional functionality or features in connection with the Services, nor relying on any oral or written public comments made by TerraSky regarding future functionality or features. ####3.2 User Subscriptions. Unless otherwise specified in the applicable Order Form, the Services are purchased as Subscriptions and may for a specific org. Subscriptions are for a designated org only and cannot be shared or used by more than one org. The administrator may assign as many users as they wish to the approved org. ####3.3 Affiliate Subscriptions. Subscriber’s affiliates (each a “Subscriber Affiliate”) may subscribe for, and purchase Services from, TerraSky under this Agreement. In such event, each Subscriber Affiliate that signs a Order Form shall be considered the “Subscriber” as such term is used herein and shall be subject to the terms and conditions of this Agreement and beneficiary of all rights hereunder, and assume all obligations of the Subscriber hereunder, with respect to the applicable Order Form; in such case, “You”, “you” or “your” shall mean the applicable Subscriber Affiliate. ####Article 4 -##Responsibilities / Acceptable Use of Services####4.1 TerraSky Responsibilities. During the term of each Subscription, TerraSky shall: (a) use commercially reasonable efforts to make the Services available in accordance with the Documentation (subject to any limitations set forth in this Agreement, including but not limited to, Sections 4.3 and 4.4); and (b) provide the basic support for the Services in accordance with Exhibit B. TerraSky shall have no responsibility or liability for your network access to the Services, communications lines or corresponding security configurations.####4.2 Your Responsibilities. You shall: (a) provide Users secure network access to the Services; (b) ensure the Users comply with this Agreement; and (c) prevent unauthorized access to or use of the Services, and promptly notify TerraSky of any such unauthorized access or use. In addition, you shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third-party rights (including but not limited to privacy rights), (iv) use the Services to store or transmit any Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) gain, or attempt to gain, unauthorized access to the Services or their related systems or networks, or to any third party’s systems networks or equipment, (vii) scan or test the vulnerability of the Services or their related systems or networks, or (viii) use the Services in any way that violates applicable laws or regulations. You agree that You will be responsible for any breach of this Agreement by a third party which occurs from Your IP address, systems, software or equipment.####4.3 Limitations of Use. The availability of the Services is conditioned upon Terrasky making the Services available for use. The Services may be subject to other limitations, such as regular maintenance service of any Salesforce applications, limits on the number of calls you are permitted to make against a Salesforce application programming interface though the Services, and other limitations of Salesforce based on which the Services are provided. ####4.4 Maintenance and Security. The Services may be interrupted for TerraSky to perform maintenance or to address and/or mitigate security breaches, virus attacks and other interferences by third parties. TerraSky will exercise reasonable efforts to inform You before interrupting Service and to repair the Service promptly. You are responsible for maintaining security and disaster recovery systems.####4.5 Audit. TerraSky may audit your use of the Services during normal business hours and upon reasonable prior notice. You agree to cooperate with TerraSky in such audit and you agree to provide all records reasonably related to your use of the Services.####Article 5 – Payment####5.1 Fees. You shall pay all fees specified in each Order Form hereunder which will include (for each “Salesforce.com org”): (a) the one-time initial fee (the “Initial Fee”) and (b) a subscription fee which is payable in full in advance (and which shall be calculated based upon a monthly subscription charge for each month of the Subscription term) (the “Subscription Fee”). Except as otherwise specified herein or in a Order Form, (i) fees are incurred based on Services purchased and not actual usage of the Services and (ii) payment obligations are non-cancelable and fees paid are non-refundable. ####5.2 Invoicing. Upon signature of a Order Form, TerraSky will submit an invoice to You for the charges specified therein, and you must pay the invoiced amount in full within thirty (30) days of the date of each invoice, without deduction or setoff. You are responsible for providing complete and accurate billing and contact information to TerraSky and notifying TerraSky of any change to such information. ####5.3 Overdue Charges. If any charges have not been received from you by the due date, then TerraSky may, at its sole discretion: charge you interest at the rate of 1.5% per month or the maximum rate permitted by law in the relevant jurisdiction, whichever is lower, on the outstanding balance during a month from the due date until the date on which the payment is made as the late payment charge and/or condition future renewal of the Subscription and Order Forms on payment terms shorter than those specified in Section 5.2 above. TerraSky will have no obligation to make the Services available or perform any services when any amount required to be paid by You remains due and unpaid beyond the date such amount is due. ####5.4 Taxes. You agree to pay amounts equal to any Federal, state or local sales, use, excise, intangibles, property, privilege or other taxes or assessments, however designated or levied, relating to the Services in connection with this Agreement, exclusive of taxes based on TerraSky’s net income. TerraSky will invoice You for any taxes payable by You that are required to be collected by TerraSky pursuant to any applicable law, rule, regulation or other requirement of law.####Article 6 – Intellectual Property Rights####6.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, TerraSky reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. ####6.2 Restrictions. You shall not (a) permit any third party to access the Services except as permitted herein or in any relevant Order Form, (b) create derivative works based on the Services except as authorized herein, (c) copy any part or content of the Services, (d) reverse engineer the Services, or (e) access the Services in order to: (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Services. ####6.3 Suggestions. TerraSky (including any of its distributors) shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users, relating to the operation of the Services. ####6.4 Third Party Products and Services. The Services do not include any third party products or services other than TerraSky. Your rights to use, and obligations with respect to, any programming, materials or data obtained from third-party vendors, regardless of whether or not obtained with the assistance of TerraSky, will be determined in accordance with the licenses and policies of such vendors, and You assume all responsibility for compliance with those requirements. Except for the limited warranties set forth herein regarding the Service, TerraSky does not warrant and is not responsible for the products or services of any third party. ####Article 7 - Disclaimer####EXCEPT AS EXPRESSLY PROVIDED HEREIN, TERRASKY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.####Article 8 –##Indemnification and Limitation of Liability####8.1 Indemnification by You. You shall defend TerraSky against any claim, demand, suit or proceeding made or brought against TerraSky by a third party alleging that Your use of the Services in breach of this Agreement or in violation of any Documentation, or Your data infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and you shall indemnify TerraSky for any damages, attorney fees and costs awarded against TerraSky. ####8.2 Indemnification by TerraSky. TerraSky shall defend, at its own expense, any claim or action brought against You by a third party to the extent that it is based on the Services infringing, misappropriating or violating any patent, copyright, trademark, trade secret or other intellectual property, proprietary, moral or privacy rights of such third party. ####8.3 Indemnification Procedures. In the event of a claim pursuant to which a party believes it is entitled to indemnification hereunder, the indemnified party shall (a) promptly notify the indemnifying party in writing of the claim, (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim against the indemnified party unless the settlement unconditionally releases the indemnified party of all liability), and (c) provide to the indemnifying party all reasonable assistance, at the indemnifying party’s expense.####8.4 Limitation of liability. TerraSky’s liability with respect to any single claim arising out of or related to this Agreement, any Order Form or the Services (whether in contract or tort or under any other theory of liability) shall not exceed the amount paid by you under the applicable Order Form to which such liability relates during the three (3) month period immediately prior to when the claim arose. ####8.5 Exclusion of Consequential Damages. In no event shall TerraSky have any liability to You, including any Users, for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not TerraSky has been advised of the possibility of such damages. ####Article 9 - Term and Termination####9.1 Term of Agreement. The term of this Agreement will commence on the date you accept it and will remain in effect, unless earlier terminated or later extended in accordance with the provisions of this Agreement, for a term of (a) one (1) year or (b) until the expiration of all Order Forms entered into pursuant to this Agreement, whichever is later. Thereafter, the term of this Agreement shall automatically renew for additional one (1) year periods unless either party provides the other party with written notice of its intention not to renew no later than forty-five (45) days prior to the expiration of the then current term. Termination or expiration of this Agreement shall not terminate any Order Form or Subscription which is not otherwise terminated, and the terms of this Agreement shall continue to apply to such Order Form or Subscription until expiration or other termination thereof. ####9.2 Term of Subscriptions. Subscriptions purchased by You will commence on the start date specified in the applicable Order Form and continue for the Subscription term specified therein. ####9.3 Termination for Cause. A party may terminate this Agreement, any affected Order Form, or any Subscription for cause, (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.####9.4 Non-refundable Fees. The fees payable hereunder are non-refundable. Upon any termination (including for cause by you), TerraSky shall not refund you any prepaid fees.####9.5 Surviving Provisions. The expiration or earlier termination for any reason of all or part of this Agreement shall not affect the other provisions that are expressly or by implication intended to come into force or continue in force on or after the expiration or earlier termination.####Article 10 - Case Study####10.1 Creation of Case Study. You agree to participate, or appoint an employee to participate, in the preparation of; and to provide consent of the publication of a Case Study about you and your Company’s use of TerraSky products and services within three calendar months of using TerraSky products and services. ####10.2 Consent to Record. You agree to give us authorization to record your Company’s employees while gathering information for the case study via webinars, emails or phone calls. Your company’s equipment, services or products and Company trademarks, symbols, logos and other information relating to your Company may appear in these recordings. ####10.3 Your Company Trademarks. We will only use your Company’s name, trademarks, symbols, logos and other identifying information (including screen shots of any product or service) in the Case Study if you agree that we may do so in writing. The usage of the above mentioned properties will also be subject to any guidelines you provide. ####10.4 Your Approval of the Case Study. We will provide you with a draft of the transcript of the Case Study to review for factual accuracy and to prevent the release of any confidential information. You agree to review the final transcript, provide any comments and give a written approval of the final transcript of the Case Study within one calendar month. ####10.5 Use of the Case Study. We will have the right to use, copy, modify, edit, reference and publish the Case Study as follows: ##(i) by publication in TerraSky internal and public websites; ##(ii) by publication in any of the following media: videotapes, audio recordings, podcasts, webcasts, blogs, digital images, photographs and print publications; ##(iii) by publication in printed copies distributed and referenced to TerraSky employees and present and potential clients; ##(iv) by publication in printed copies distributed at TerraSky sponsored or co-sponsored events as well as printed copies distributed at tradeshows; and ##(v) by publication in excerpts in slides, brochures and other marketing material. ##(vi) We shall have the right to amend and edit the Case Study, provided that any modifications or alterations do not significantly alter the original content of the Case Study. ##(vii) We will use the Case Study for marketing purposes. We will not claim any rights in any of your Company’s trademarks or other intellectual property that may appear in the Case Study. ####Article 11 - General Provisions####11.1 Relationship of the Parties. The parties hereto are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.####11.2 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.####11.3 Notices. All notices, consents and other communications required or which may be given under this Agreement will be deemed to have been given (a) when delivered by hand; (b) three (3) days after being mailed by registered or certified mail, return receipt requested; or (c) when received by the addressee, if sent by facsimile transmission or by Federal Express or other express delivery service (receipt requested). Communications sent to You shall be sent to the address set forth on the signature page hereto (or to such other person or address as You may hereafter designate by notice to TerraSky) and communications sent to TerraSky shall be sent to TerraSky Inc. Care Of: James Howard Prenton, 580 California Street, Suite 500, San Francisco CA 94104####11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.####11.5 Attorney Fees. Upon demand from TerraSky, you shall pay all reasonable attorney fees and other costs incurred by TerraSky in order to collect any fees or charges due to TerraSky under this Agreement following your breach of Section 5.2 (Invoicing). ####11.6 Delays. Each party hereto will be excused from delays in performing, or from failure to perform, hereunder to the extent that such delays or failures result from causes beyond such party’s reasonable control. ####11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which shall not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or 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.####11.8 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to the principles of conflicts of law. Each party hereby submits itself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive jurisdiction of the federal or state courts located in the State of California and any courts of appeal therefrom, and waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.####11.9 Entire Agreement. This Agreement, including all exhibits and attachments hereto, all documents incorporated by reference herein and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or attachment hereto or any Order Form, the terms of such exhibit, attachment or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your pre-printed or other form of ordering documentation (excluding mutually agreed Order Forms) shall be incorporated into or form a part of this Agreement, and all such terms or conditions shall be null and void.
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