Funnelcast Self-Serve Subscription Agreement

Effective November 1, 2022

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THIS SELF-SERVE SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE FUNNELCAST LLC (“FUNNELCAST”) SERVICES (AS FURTHER DEFINED BELOW). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

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UPON ACCEPTING THIS AGREEMENT BY: (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING A WRITTEN ORDER THAT REFERENCES THIS AGREEMENT; OR (3) ACCESSING AND/OR USING THE SERVICES (AS DEFINED BELOW), CUSTOMER AGREES TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.

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IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, IS UNDER 18 YEARS OF AGE, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

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The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Funnelcast’s direct competitors are prohibited from accessing the Services, except with Funnelcast’s prior written consent.

Funnelcast or its Affiliates may provide Customer or its Affiliates with certain Services pursuant to this Agreement, unless the parties have executed a separate written agreement governing Customer’s use of the Services, in which case such agreement shall control. Funnelcast may modify this Agreement from time to time, subject to the terms in Section 14 (Changes to this Agreement) below.

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1. DEFINITIONS

   1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

   2. “Beta Services” means Services, products, or features made available to Customer on a trial, beta use, early access, or similar basis.

   3. “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Orders.

   4. “Data” means all data or information provided by Customer for use by the Services but does not include data that results from Customer’s or Users’ use of the Services.

   5. “Free Services” means Services that are provided at no charge. Free Services includes any Services that are provided during a trial.

   6. “Force Majeure Event” means any event beyond a party’s reasonable control, including but not limited to, acts of God, acts of any civil or military authority, terrorism, war or other hostility, national emergencies, civil disorder, pandemic, epidemic, fire, flood or other catastrophe, power failures, equipment failure, industrial or labor dispute, acts of third party providers, communication outage, Internet outage, cyber attack or performance (or lack thereof) of third parties, but excluding economic or other conditions that may prevent Customer’s ability to pay amounts due under this Agreement.

   7. “Intellectual Property Rights" shall mean patents, inventions, utility models, petty patents, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them), rights in know-how, moral rights, trade secrets and rights of confidence; all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may exist anywhere in the world.

   8. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, but not limited to, viruses, worms, time bombs, back-doors, Trojan horses.

   9. “Order” means the ordering documentation setting forth Customer’s enrollment in Services and the relevant fees related thereto.

   10. “Paid Services” means those Services that require payment of a fee for use.

   11. “Services” means the Funnelcast cloud-based sales and marketing intelligence platform. and which is provided by Funnelcast via https://login.funnelcast.com or any other sub-domain name or web address as designated by Funnelcast including associated offline components. Services includes Free Services as well as Paid Services.

   12. “Service Upgrade” means a change of Paid Service to a Service with a higher fee, or a change from a Free Service to any Paid Service.

   13. “Subscription” means a subscription to the Services which is further specified in the relevant Order.

   14. “Subscription Start Date” means the date that Customer initially enrolls in a Subscription or the effective date of the Order for new Services or the most recent Service Upgrade, if applicable. The Subscription Start Date for a Service offered under a free trial shall be the date that the trial period begins.

   15. Billing Date means three (3) days prior to the monthly, quarterly, or annual anniversary as applicable, of the then-current Subscription Start Date and if no such corresponding date exists in a particular month, the last day of that month.

   16. “Third Party Products” means products and services, including but not limited to, online, web-based applications, offline software products, and content that is developed or provided by third party providers and interoperates with the Services.

   17. “Users” means individuals who are authorized by Customer to use the Services and who have been supplied user identifications and passwords by Customer (or by Funnelcast at Customer’s request). Users may include employees, consultants, contractors and agents of Customer who are utilizing Services solely on behalf and for the benefit of Customer or Customer’s Affiliates.

2. USE OF THE SERVICES

   1. Subscription Terms, Renewals, and Cancellations. Paid Services are provided to Customer on a subscription basis for the term specified in the Order, which includes online Orders submitted by Customer during the sign-up process (“Initial Subscription Term”). The Subscription shall automatically renew for periods equal to the Initial Subscription Term (each a “Renewal Term”), and Customer shall be charged at the then-current rates unless Customer chooses not to renew the subscription by providing notice to Funnelcast at least 30 days prior to the next scheduled Billing Date. The Initial Subscription Term and the Renewal Term(s) together are the “Subscription Term”. Subscriptions may be terminated or changed to a different Service at any time. Terminations and changes to a Service with a lower fee or to a Free Service become effective upon the expiration of the Subscription Term. Service Upgrades shall create a new Subscription starting on the date of the Service Upgrade with an Initial Subscription Term as specified in the applicable Order, and shall require Customer to pay for the applicable higher subscription fee less a credit for the prorated remainder of the then current Subscription Term prior to having access to the Upgrade(s).

   2. Provision of Services. Upon payment of the Subscription Fees and provided that Customer complies with the terms and conditions of this Agreement and the limitations of the Services set forth in the Order, Funnelcast hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Services and reports derived therefrom for its internal business purposes during the Subscription Term. Customer agrees that its use of the Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Funnelcast regarding future functionality or features.

   3. User’s Access to Services. Customer and User access to the Services is pursuant to the specific Services and for the Subscription Term identified in an Order. Further, (i) User passwords may not be shared with any other individual and (ii) Customer may not reassign current a User’s authorization to use the Service to any other Users, except to the extent a User is no longer employed or engaged by Customer in a role requiring comparable use of the Services, in such case, Customer may reassign access to another User.

   4. Usage Restrictions. Funnelcast direct competitors may not access the Services, except with Funnelcast’s prior written consent. Customer shall not (and shall not allow any third party to) (a) make the Services available to, or use the Services for the benefit of, any third party other than Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, pornographic or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) permit any third party to access the Services, (h) create derivative works based on the Services, (i) copy, frame or mirror the Services or any part, feature, function or user interface thereof other than for Customer’s own internal business purposes, (j) reverse engineer the Services, or (k) access the Services in order to (i) build a competitive product or service, (ii) build a competitive product or service using any ideas, features, functions or graphics of the Services, (iii) copy any ideas, features, functions or graphics of the Services, or (iv) determine whether the Services are within the scope of any patent.

   5. Funnelcast reserves the right to suspend or limit Services in the event of (a) a violation of Section 2.4 above, (b) abuse, or (c) abnormally excessive usage by Customer or Users which could adversely impact the performance of the Services, the ability of other customers to use the Services, or the ability of Funnelcast to provide the Services.

   6. Beta Services and Free Services. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services or Free Services, (b) Beta Services and Free Services may not be supported by Funnelcast and may be changed or removed at any time in Funnelcast’s sole discretion, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, and (d) Funnelcast provides Beta Services and Free Services “as-is” and “as available” and Funnelcast shall have no liability arising out of or in connection with use of such Beta Services or Free Services.

3. RESPONSIBILITIES

   1. Funnelcast Responsibilities. Funnelcast shall: (i) use commercially reasonable efforts to make the Paid Services available, and (ii) provide the Services in accordance with all applicable laws and government regulations.

   2. Customer Data. Funnelcast shall access and use Data in accordance with this Agreement and the relevant documentation. Funnelcast shall not (a) modify the Data, or (b) disclose the Data to unaffiliated third parties except as compelled by law in accordance with Section 7.3 (Compelled Disclosure). Customer understands and agrees that Funnelcast uses a third party Data storage provider to provide Data storage, processing and content delivery for the Services under this Agreement (the “Third Party Provider”). Customer consents to the use of a Third Party Provider for such services.

   3. Customer’s Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of the Data and of the means by which Customer acquired the Data, (iii) prevent unauthorized access to or use of the Services, and immediately notify Funnelcast of any such unauthorized access or use, and (iv) use the Services only in accordance this Agreement and with applicable laws and government regulations. Customer takes full responsibility for its use and its User’s use of the Services.

   4. License by Customer to Host Data. Customer grants Funnelcast and its Affiliates a worldwide, non-exclusive, non-transferrable (except as otherwise set forth in this Agreement), license to host, copy, store, use, transmit and display Data as necessary for Funnelcast to provide the Services in accordance with the terms of this Agreement. Customer further grants to Funnelcast the perpetual right to use, manipulate, and disclose Data in anonymized or aggregated form, provided that any such use of Data does not identify Customer, Customer’s customers or prospects, or any individual. Subject to the limited license granted herein, Funnelcast acquires no additional right, title or interest from Customer under this Agreement in or to Customer’s Data. Further, Customer agrees to take commercially reasonable efforts to ensure that personal information is not made available to Funnelcast through the Services. Notwithstanding the foregoing, to the extent Data contains personal information, Customer has obtained the written consent from the individuals identified by such personal information to allow Funnelcast to store, process, and/or disclose that individual’s personal information (including without limitation, name and email) in furtherance of Funnelcast providing Services to Customer, pursuant to Compelled Disclosure set forth in Section 7.3 and Customer agrees that such disclosure shall not be deemed a breach of this Agreement. Customer shall defend, indemnify and hold Funnelcast harmless, without limitation, for any storage, processing, use, and/or disclosure of such personal information.

4. THIRD PARTY PRODUCTS

   1. Customer may require access to Third Party Products from and to grant Funnelcast access to Customer account(s) to the Third Party Products. The interoperability of Third Party Products with the Services is contingent upon availability to Funnelcast of the Third Party Product APIs and programs by the third party provider. If the third party provider ceases to make the API or Third Party Products or programs available to Funnelcast on terms acceptable to Funnelcast, Funnelcast may cease providing interoperability with such Third Party Products without liability and Customer shall not be entitled to any refund, credit, or other compensation.

   2. Any acquisition by Customer of Third Party Products, and any exchange of data between Customer and the third party provider of such Third Party Products is solely between Customer and the applicable third party provider. Funnelcast shall have no responsibility or liability related to the Third Party Products.

   3. Third Party Products and Data. If Customer, or Funnelcast as directed by Customer, installs or enables a Third Party Product for use with the Services, Customer grants Funnelcast the right and consent to allow the provider of such Third Party Product to access Data, as required for the interoperation of the Third Party Product with the Services. Funnelcast is not responsible and shall have no liability for any disclosure, modification or deletion of Data resulting from such access to the Data by a third party provider.

   4. Notwithstanding anything to the contrary in this Agreement: a) Funnelcast does not warrant or support any Third Party Product; b) Funnelcast shall not be liable for the Third Party Products whether or not such Third Party Products have been designated as certified or approved by Funnelcast c) Customer is solely responsible for use of the Third Party Products including any results of Services based on use of the Third Party Products, and d) Funnelcast shall have no liability for, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to, any unavailability of the optional Third Party Products or any change in the ability of Funnelcast to interoperate with the Third Party Products.

5. FEES AND PAYMENT FOR SERVICES

   1. Recurring Billing. In order to access Paid Services, Customer shall provide Funnelcast or Funnelcast’s payment processor with credit card information (“Payment Method”). By providing a Payment Method to the payment processor, Customer authorizes Funnelcast to charge the Payment Method on a periodic or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Paid Services that Customer signs up for. Any Payment Method provided must be valid and kept current by Customer during the Subscription Term. By providing Funnelcast with a Payment Method, Customer represents and warrants that it is authorized to use such Payment Method. Funnelcast may begin billing the Payment Method for the Paid Services on the day that Customer signs up for such Paid Services or at Funnelcast’s discretion after a free cancelation period has expired, regardless of whether Customer has fully configured and used the Paid Services as of that date.

   2. Changes in Fees. Funnelcast reserves the right to increase the fees for Services at any time in its sole discretion upon at least thirty (30) days’ prior notice to Customer of such increases. Unless otherwise specified in such notice to Customer, any changes to the fees shall take effect in the billing period immediately following such notice to Customer.

   3. No Refunds. FEES ARE NON-CANCELLABLE AND NON-REFUNDABLE. CUSTOMER SHALL BE INVOICEDIN ADVANCE. IF CUSTOMER CANCELS A SUBSCRIPTION, PAYMENT SHALL BE IMMEDIATELY DUE AND PAYABLE IN FULL FOR THE SUBSCRIPTION TERM IN WHICH CUSTOMER CANCELS AND NO REFUNDS SHALL BE PROVIDED FOR ANY UNUSED PORTION OF ANY SUBSCRIPTION TERM DURING WHICH CUSTOMER PROVIDES NOTICE OF CANCELLATION. Following any cancellation, however, Customer shall continue to have access to the Paid Services until the effective date of cancellation.

   4. Taxes. Unless otherwise stated, Funnelcast’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services provided hereunder or otherwise arising out of this Agreement. If Funnelcast has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid or reimbursed by Customer, unless Customer provides Funnelcast with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Funnelcast is solely responsible for taxes assessable against it based on its income, property and employees.

6. PROPRIETARY RIGHTS

   1. Reservation of Rights. Funnelcast owns all rights, title and interest in and to the Services, including the reports and any output developed as a result of the use of Services, including all Intellectual Property Rights, and nothing contained herein shall be construed so as to transfer any such rights to Customer.

   2. Ownership of Data. Customer owns all rights, title and interest in and to all of the Data, including all Intellectual Property Rights and nothing herein shall be construed as a transfer of any such rights to Funnelcast.

   3. Customer Feedback. Customer hereby assigns to Funnelcast all rights it has in any suggestions, enhancement requests, recommendations, corrections or other feedback provided by Customer, including Users, relating to the Services, including the operation of the Services.

7. CONFIDENTIAL AND PERSONAL INFORMATION

   1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether disclosed orally, in writing, electronically, by means of observation or otherwise, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Without limiting the foregoing, Customer Confidential Information shall include Data; Funnelcast Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, pricing, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party.

   2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party the Receiving Party shall, (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are legally bound by confidentiality obligations with the Receiving Party containing protections no less stringent than those herein. The Receiving Party shall be responsible for any breach of this Section 7 by its employees, contractors and agents.

   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party without written consent if the Receiving Party is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted and in a manner that allows the Disclosing Party reasonable time to contest the disclosure) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

   4. Personal Information. Customer acknowledges that in order to provide Services and/or support to Customer, Funnelcast may need access to limited personal information of Users, limited to the minimum information required by a Third Party Product to identify a User. Customer shall refrain from disclosing any further personal information. Funnelcast shall comply with all applicable laws and policies regarding the use and disclosure of personal information (as set forth in this Section 7.4) herein.

   5. Return of Confidential Information. Subject to Section 11.6 below, upon the Disclosing Party’s request and upon any termination or expiration of this Agreement, the Receiving Party shall promptly return or, if so directed by the Disclosing Party, destroy all tangible embodiments of the Confidential Information or Personal Information of the Disclosing Party. Notwithstanding the foregoing, Funnelcast may retain Data for the purposes set forth in section 3.4.

   6. Remedies. Each party understands, acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Section 7, and that the non-breaching party shall be entitled to seek specific performance and injunctive relief as remedies for any such breach, including injunctions, orders or decrees as may be necessary to protect such party’s rights under this Section, without the necessity of proving actual damages and without having to post bond or other form of financial assurance. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.

8. WARRANTIES AND DISCLAIMERS

   1. Funnelcast Warranties. Funnelcast warrants that (i) it will provide the Paid Services in a professional and workmanlike manner; and (ii) the functionality of the Paid Services shall not be materially decreased during a Subscription Term. For any uncured breach of either such warranty, Customer’s sole and exclusive remedy shall be for Funnelcast to reperform the Services.

   2. Mutual Warranties. Each party represents, warrants and covenants that it has the legal power to enter into this Agreement.

   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FUNNELCAST MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE FOR THE SERVICES OR ANY THIRD PARTY PRODUCTS. ALL SERVICES PROVIDED HEREIN ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S SOLE RISK. FURTHER, FUNNELCAST SPECIFICALLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES (I) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, (II) THAT THE OUTPUT OF THE SERVICES ARE ACCURATE RELIABLE, OR (III) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

9. INDEMNIFICATION

   1. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Funnelcast and its officers, directors, employees, consultants, Affiliates, subsidiaries and agents (collectively, the "Funnelcast Entities") from and against any and all Claims made or brought against Funnelcast by a third party arising out of or in any way connected with Customer’s access to, use of, or alleged use of the Services; (ii) Customer’s violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) Customer’s violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between Customer and any third party. Funnelcast reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (and without limiting Customer’s indemnification obligations with respect to such matter), and in such case, Customer agrees to cooperate with our defense of such claim.

   2. Remedy. To avail itself of the remedies under this Section 9, the party seeking indemnification shall (a) promptly give the indemnifying party written notice of the Claim; (b) provide all reasonable assistance, at the indemnifying party’s expense; and (c) give sole control of the defense and settlement of the Claim to the indemnifying party (provided that the indemnifying party may not settle any Claim: (i) unless the settlement unconditionally releases the indemnified party of all liability; (ii) that requires the indemnified party to admit fault or liability; or (iii) that obligates the indemnified party to take or abstain from taking any action detrimental to its reputational or pecuniary interests).

10. LIMITATION OF LIABILITY

    1. Limitation of Liability. IN NO EVENT SHALL FUNNELCAST’S MAXIMUM CUMULATIVE LIABILITY, REGARDLESS OF THE FORMS OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FOR THE SERVICES IN QUESTION FOR THE MOST RECENT TWELVE (12) MONTHS PRIOR TO THE TIME SUCH LIABILITY AROSE. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.

    2. Exclusion of Consequential and Related Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL FUNNELCAST HAVE ANY LIABILITY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) REGARDLESS OF THE THEORY OF LIABILITY, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. TERM AND TERMINATION

    1. Term of Agreement. This Agreement shall commence upon the Customer making a purchase hereunder and/or signing an Order and continue for the duration of all Subscription Terms until terminated in accordance with this Agreement.

    2. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; (ii) immediately if such material breach is not capable of being cured or (iii) immediately 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.

    3. Refund or Payment upon Termination. Upon any termination of this Agreement for cause by Customer, all Subscriptions shall terminate immediately and Funnelcast shall promptly refund Customer any prepaid fees on a prorated basis, covering the remainder of the term of all outstanding Subscriptions after the effective date of termination. Upon any termination of this Agreement for cause by Funnelcast, Customer shall promptly pay any unpaid fees covering the remainder of the term of all outstanding Subscriptions. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Funnelcast for the period prior to the effective date of termination.

    4. Deletion of Access. Immediately upon termination of this Agreement, Customer shall delete all access to the Services, including any software and passwords and shall cease use of all Services. Customer shall return all Confidential Information to Funnelcast and shall have no right to continue to use Services.

    5. Surviving Provisions. Section 3.4 (License by Customer to Host Data), 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Confidentiality and Personal Information), 8.3 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11.3 (Refund or Payment upon Termination), 11.5 (Surviving Provisions), 12 (Governing Law and Jurisdiction), and 13 (General Provisions) shall survive any termination or expiration of this Agreement.

    6. Return of Customer Data. Upon written request by Customer made to Funnelcast within thirty (30) days after the effective date of termination of this Agreement, Funnelcast shall make the Data available to Customer for export or download. After such 30-day period, Funnelcast shall have no obligation to maintain or provide Customer with any Data.

12. GOVERNING LAW AND JURISDICTION; NOTICE

    1. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of The Commonwealth of Massachusetts without regard to its principles of conflicts of law which might require the application of the laws of any other jurisdiction. Jurisdiction and venue of any actions or proceedings to construe, interpret, enforce or to recover a remedy for the breach of this Agreement shall be in the State and Federal Courts located in Middlesex County, Massachusetts.

    2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) the second business day after mailing by registered or certified mail or delivery through a reputable overnight carrier, or (ii) the first business day after sending by email. Notices to Funnelcast shall be addressed to Funnelcast LLC, Attn. Legal, 15 Autumn Lane, Wayland MA 01778. Notices to Customer shall be addressed to the Customer’s physical or email address on file.

13. GENERAL PROVISIONS

    1. Export Compliance. Each party represents that it (including Customer’s Users) is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use Services in any U.S.-embargoed country or in violation of any U.S. export law, or regulations.

    2. Anti-Corruption. Customer acknowledges that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Funnelcast’s employees or agents in connection with this Agreement. Customer shall report any violation of the above restriction to Funnelcast.

    3. Compliance with Laws. Each party shall comply with all applicable national, state/provincial and local laws, regulations, ordinances, and codes, including, but not limited to, the United States Foreign Corrupt Practices Act and any applicable anti-bribery laws, and applicable economic or trade sanctions, export controls and securities laws, now or hereafter in effect.

    4. Force Majeure. No failure or omission by either of the parties in the performance of this Agreement, shall be construed to be a breach of this Agreement, nor create a liability hereunder, if such is the result of a Force Majeure Event. In the event of any such happening, the affected party promptly shall notify the other party of such event and additional time for performance shall be negotiated in good faith between the Parties to reflect the effect of such event.

    5. Publicity. Customer hereby grants Funnelcast the right to use and display in its marketing and advertising materials (including without limitation, web sites, product literature, newsletters, and press releases) that Customer is a client of Funnelcast, including use of Customer’s name and logo.

    6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

    7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

    8. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

    9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the 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.

    10. 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; provided however, either party may assign this Agreement in its entirety, 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. Entire Agreement. This Agreement, including all exhibits and addenda hereto, 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 addendum hereto, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void

14. Changes to this Agreement. Funnelcast reserves the right to modify this Agreement at any time. If a revision materially alters Customer’s rights Funnelcast shall use reasonable efforts to contact Customer, including sending a notification to the e-mail address(es) on file. In some instances, such as with Free Services, Customer may be required to indicate consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement shall take effect at the start of Subscription Term following the notice. If Customer does not agree with the revised terms, Customer’s sole and exclusive remedy shall be not to renew the Subscription.