SOFTWARE PRODUCT SUBSCRIPTION AGREEMENT

THIS SUBSCRIPTION AGREEMENT (THE “TERMS”) CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS. THE FOLLOWING DESCRIBES THE TERMS ON WHICH APPFICIENCY AND OUR AUTHORIZED RESELLERS AND AFFILIATES OFFER YOU ACCESS TO AND USE OF THE SERVICES DEFINED HEREIN.

Effective Date: This Software Product Subscription Agreement is effective as of October 1, 2022.

These Terms are a legal agreement between Appficiency Inc., together with its authorized resellers (each a “Reseller”) and affiliates (collectively, “Appficiency”, “us”, “we”, “Licensor” or “our”) and you (“you”, “Licensee” or “your”) which governs our relationship with you in respect of your use of the software and services for which you have a subscription license to access and use granted to you directly by us or from one of our Resellers (collectively, the “Services”). These Terms, together with our Privacy Policy, and any relevant purchasing document (e.g., a Purchase Order), govern our relationship with you with respect to your use of the Services. By using any of our Services, whether or not you become a registered user of the Services, you accept and agree to be bound and comply with these Terms and our Privacy Policy, found here: https://www.appficiency.com/privacy/ and which is incorporated herein by reference. We and you are each a “Party” and are collectively the “Parties”.

Accessing and/or using any of the Services is the equivalent of your signature and indicates your acceptance of the Terms and that you intend to be legally bound by the Terms.

IF YOU DO NOT AGREE TO THESE TERMS OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES.

If you are accepting these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its employees to the Terms. Organizations, companies, and businesses may only become registered members or use our Services as entities or through individual members with the prior written authorization of Appficiency.

You agree that it is solely your responsibility to ensure that your access to and use of the Services complies with the laws of your jurisdiction. We make no representation that the Services are appropriate for use outside Canada..

You are responsible for all software, hardware, services (such as Internet service), and equipment necessary to access and use the Services, including all related expenses, if any.

1.     Services Scope.

1.1.  Services: Licensor agrees to provide the Services to the Licensee, pursuant to the terms of this Agreement. The Services are licensed for the term of the subscription license you have purchased for such Services, either from us or from a Reseller or such other period of time agreed to between you and us or a Reseller, as applicable, for provision of the Services to you in accordance with fees for said provision of Services (the “Subscription Term”). The Subscription Term will be deemed to have commenced upon your payment for the license for the Services and be effective until the end of such Subscription Term, as set out in the applicable documentation.

2.     Services License.

2.1.  Licensor hereby grants Licensee a nonexclusive, non-transferable, worldwide right and license to use the Services solely for Licensee’s internal business purposes, subject to the terms of this Agreement during the Subscription Term.

2.2.  All Services shall be provided solely in the English language. The Licensee bears all responsibilities and liabilities for compliance with all laws applicable in the jurisdiction where you are located (the “Territory”) for systems and data used with or by the Services, and for its use, and that of any users you may have, of the Services, including but not limited to hardware, internet connections, consents and authorizations.

3.     Services. The Services that Licensor will provide to Licensee include the following:

3.1.  Provision of software for the Services: The Licensor will provide the software environment required to implement and provide the Services. The implementation and provision of the Services generally, and any updates or upgrades thereto, shall be in accordance with a schedule determined by the Licensor, which shall be subject to alteration at the Licensor’s discretion. Licensor shall provide Licensee with notice at least three (3) months prior to modifications to any Services. For clarity, “NetSuite” means any and all third party software provided by Oracle under the brand name NetSuite.

3.2.  Maintenance of software for the Services: Licensor may, from time to time, perform maintenance on the software for the Services and related infrastructure, which may include updates, modifications, bug fixes, upgrades, enhancements and new versions of the software. Licensor shall apply reasonable efforts to perform such maintenance during off-peak work hours to minimize disruption to access to and use of Licensee’s system by its users, excepting emergency or otherwise urgent maintenance. Licensee acknowledges that the performance of such maintenance may cause the software and/or Services to be temporarily unavailable.

3.3.  Support: If Licensee purchases the license for the Services from a Reseller, the Reseller will provide support for some of the Services, in accordance with the agreement between such Reseller and Licensor.

3.4.  If Licensee purchases the license for the Services directly from Licensor, or if the Licensor provides support to Licensee who purchased said license from a Reseller, Licensor will provide Licensee with access to Licensor’s customer portal in NetSuite or other system for the purpose of Licensee logging any support tickets. Licensor will solely respond to and resolve customer support requests submitted by the Licensee which are directly attributable to the Services, and shall apply commercially reasonable efforts to respond to and resolve such customer support requests submitted by the Licensee, in accordance with the service levels set out in section 13 of this Agreement.

3.5.  Software Modifications: If NetSuite releases a version of its software that is incompatible with the Services, Licensor shall apply commercially reasonable efforts to promptly develop and make available a modified and upgraded version of its Services to Licensee. Licensor shall further support commercially reasonable requests of Licensee for installation of commercially available upgrades or updates to any third party software. Licensor may modify the Services that is source code developed by Licensor at its discretion and the sole obligations of Licensor for any such modification are those obligations that are expressly set out in this Agreement. Following the date when any new version of any software is made available by a third party software provider (the “Upgrade Date”), such new version may be implemented by the Licensor, and both the prior and new versions shall be supported by Licensor for six (6) months after the Upgrade Date and thereafter the Licensor shall no longer be required to support the prior version.

3.6.  Software Testing: If the Services involve NetSuite, Licensor shall conduct testing to confirm Licensor’s Software function in a manner that is compatible with the then current NetSuite version, and shall not be required or responsible to conduct any other testing. For clarity, Licensor bears no responsibility or liability should any third party software or services, or any software in the Licensee’s system, cause any errors or degradation of performance of any Services, nor shall such outcome be deemed a product deficiency of any Licensor Services.

4.     Licensee Obligations

4.1.  Provide Licensor Account Login: To receive the Services, Licensee must provide Licensor with an identification (ID) and password for login and, if applicable, access to an administrator-level account for Licensee’s NetSuite account. For clarity, Licensee shall be responsible for the maintenance of user login information for access to and use of the Software.

4.2.  Support Requests: If Licensor is providing support to Licensee, Licensee shall promptly log support tickets for each request for support from Licensor, and shall provide accurate and full details relating to all support requests. Licensee shall log support requests either: through the Licensor’s customer portal in NetSuite; or by submitting support requests via email at softwaresupport@appficiencyinc.com. Licensor may alter the options and facilities for submitting support requests during the Term of this Agreement.

4.3.  Prerequisite Applications; Internet Access: Licensee shall be solely responsible for procuring and maintaining, at its sole expense, the necessary environment for the use and function of the Services via the Internet, including, without limitation:

4.3.1.     A valid license to applicable software required for the Services as determined by Licensor, including NetSuite, and other external software including any software applications, and such license shall include rights extended to Licensor to utilize all such software as required for the Licensor to fulfill its obligations under this Agreement;

4.3.2.     Internet access required for the foregoing; and

4.3.3.     Telecommunications services required for the foregoing.

4.4.  Use of the Services: Licensee shall be responsible for its users’ use of the Services, which shall at all times be in accordance with the User Requirements. “User Requirements” means (i) all applicable user manuals and other documentation, Licensor instructions and guidance (including that which is provided in written or other formats), for use of the Services, all of which may be amended from time to time by Licensor; and (ii) all instructions, manuals and other documentation provided by NetSuite and the providers of any other third-party software relating to such software.

4.5.  Data: Licensee shall not, and shall ensure that its users shall not, use, submit, or enter any data, information or other materials in the course of using the Service that:

4.5.1.     Violates any applicable laws, rules or regulations;

4.5.2.     Infringes upon, misappropriates or otherwise violates any intellectual property or proprietary rights of any other person; or

4.5.3.     Violates or breaches the privacy rights of others.

4.6.  Restrictions: Licensee shall not, and shall not allow any of its users or any third party to, do any of the following:

4.6.1.     Decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Service by any means whatsoever;

4.6.2.     Remove any product identification, copyright or other notices from any Services;

4.6.3.     Provide, lease, lend, use for time sharing, service bureau or hosting purposes or otherwise use the Service to or for the benefit of third parties;

4.6.4.     Reproduce the Service or any component thereof, or any software or services similar thereto;

4.6.5.     Modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Service nor any service or product that is similar to or a substitute in whole or in part for the Service;

4.6.6.     Disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Service; or

4.6.7.     Resell, sublicense, distribute, or transfer the Service or any component thereof to any third party (including, without limitation, sharing Licensee’s username(s) and password(s) for the Service with any third party).

4.7.  Implementation Support: Licensee shall provide all such systems, data, information and other support required for Licensor to implement any Services or any upgrades thereto. Should Licensee’s failure to do so result in any implementation exceeding any maximum implementation window established by Licensor, Licensor may charge a stocking fee to Licensee as part of the Fees, at Licensor’s sole discretion. Should Licensee failure to pay any Fees in any invoice provided by Licensor prior to the completion of any installation, Licensor: (i) shall bear no responsibility or liability for any failure to complete or commence such installation; (ii) may charge a disruption fee as part of the Fees; and (iii) may uninstall any portion of software that it has installed on the Licensee’s system.

5.     Fees.

5.1     “Fees” means the fees set out in this Agreement or in any invoice, order or other purchase agreement between Licensee and either Licensor or Reseller, as applicable, as may be amended from time-to-time by the Licensor in accordance with the terms of this Agreement, and such other fees to be paid by Licensee to Licensor pursuant to this Agreement or to Reseller, as applicable. For clarity, the Licensor may amend the Fees to reflect fluctuations in the rate of inflation and to include fees, such as the stocking fee and disruption fees, or other fees. Licensor shall not amend the subscription costs for the Services to reflect an increase of more than ten percent (10%) in a twelve (12) month period.

5.2     During the Term, Licensor will generate invoices for Fees for Licensees that do not obtain the license to the Services via a Reseller, and other approved costs and fees incurred by any Licensee, and such invoices will be payable by Licensee within thirty (30) days of the date thereof. All invoice payments shall be paid in the currency indicated on the invoice. Late payments are subject to interest in the amount of one percent (1%) per month on overdue amounts thereon.

5.3     All Fees and other costs and fees are exclusive of all taxes now in force or enacted in the future and imposed on the provision of goods and services. Licensee is responsible for the payment of all applicable taxes.

5.4     No refund will be provided by the Licensor for any Fees paid by Licensee. To the extent that any dispute with respect to the payment of any Fees by Licensee is determined in favor of Licensee, any applicable overpayment shall be credited to the benefit of Licensee in connection with the next invoice rendered by Licensor.

5.5     The Licensor, or any Reseller, may offer multiple Service products and various Services in accordance with bundle-packages costing (“Bundle Pricing”). Once such Bundle Pricing is implemented prior subscription pricing Fees for such Software Service Products and Services shall no longer be applicable to this Agreement.

5.6     For all pre-paid subscriptions, the charges for the Services shall be deemed to commence upon the day when the Fees for such pre-paid subscription are received by Licensor or by Reseller, as applicable.

5.7     Services may be interrupted on accounts for which the Fees reach ten (10) days past due. Accounts sixty (60) days past due can be interrupted without notice and may not be reinstated without additional charges, fees or other reasonable commercial criteria. Unpaid Fees that are not collectible by Licensor may be turned over to an outside collection agency for collection.

6.     Ownership & Intellectual Property.

6.1.  Ownership: The Services and its components, and anything developed by Licensor for Licensee under this Agreement (collectively the “Deliverables”), are licensed in accordance with section 2 of this Agreement, and are not sold, to Licensee by Licensor. Licensor and its suppliers retain all intellectual property and proprietary rights in all Services and Deliverables, including but not limited to all copyright, trade secret, trademark, patent and other rights in all Services and Deliverables. For clarity, the Deliverables include but are not limited to, all software, technology, information, content, materials, guidelines, and documentation provided by Licensor to Licensee that are specifically and uniquely developed by Licensor for Licensee. Except as otherwise expressly agreed by Licensor in writing, the license rights granted under this Agreement confer no title to, or ownership in, any Services or Deliverables, and Licensor reserves all rights not expressly granted to Licensee herein.

6.2.  IP Infringement: If a claim of infringement of the intellectual property of a third party based upon the Services or any Deliverables is made or in the opinion of the Licensor appears likely or possible to be made, Licensee hereby agrees to permit Licensor, at Licensor’s sole discretion, to: (i) modify the Services or Deliverables, as applicable to be non-infringing; (ii) seek a license right or other authorization to utilize the Services or Deliverables, as applicable, without any such claim being raised or enforced; (iii) replace any Services or Deliverables, as applicable, with non-infringing alternatives; (iv) cease to provide any Services or Deliverables, as applicable, that are identified in any such claim; or (v) take any other measure to enable the Licensor to continue to provide the Service or Deliverables, as applicable. Licensor may require Licensee to, cease use of, and, if applicable, return, such Services or Deliverables as are the subject of the infringement claim. Canopy’s obligations in this Section 6.2will not apply if the alleged infringement arises, in whole or in part, from: (A) modification of any Services or Deliverables by Licensee or its users; or (B) combination, operation or use of the Services or Deliverables with software, hardware or technology neither provided by Licensor, nor suggested, recommended or contemplated by any documentation or other Licensor materials addressing use of the Services or Deliverables; (C) any data or information received by Licensor or provided for use of any Services or Deliverables.

 

7.     Term & Termination.

7.1.  Term: The term of this Agreement shall commence upon the Effective Date and continue during the Subscription Term, unless earlier terminated in accordance with the terms of this Agreement. If the license for the Services is not purchased via a Reseller, A Subscription Term may only be extended by the Licensor in writing.

7.2.  Termination for Breach: Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party that is not cured within thirty (30) days of written notice of such breach. For clarity: (i) failure to pay any Fees or other costs owed by Licensee, in full is a material breach of this Agreement, and may further result in the cessation of the Services until such breach is cured; and (ii) the Licensor shall bear no obligations or liabilities whatsoever for any business interruptions created by any cessation or suspension of Services on the basis of any material breach of this Agreement by Licensor, including any caused due to a failure of the Licensee to pay any Fees as required by the terms of this Agreement.

7.3.  Termination and Expiration: Upon termination of this Agreement, by either Party Licensor may immediately terminate access to the Services (including but not limited to the software provided by the Licensor), and Licensee acknowledges that it may thereafter be denied access to the Services. Upon the expiration of a Subscription Term, this Agreement will expire, unless a new subscription license for Services is purchased by Licensee upon such purchase the Agreement will continue during the subscription term relating to such license (which shall then be the Subscription Term). Upon the expiration or termination of this Agreement for any reason whatsoever, the Services will be terminated, at Licensor’s discretion, including but not limited to all the cessation of the function of automations (scripts). Licensor shall not bear any responsibility or liability for any business interruptions, or any lack of access to any historical activity data and other data relating to the Services that has been generated by said scripts, after any termination or suspension of the Services.

7.4.  Obligations on Termination: Upon expiration or termination of this Agreement for any reason whatsoever, Licensee shall ensure that it and its users immediately:

7.4.1.     Cease all use of the Services (including but not limited to any software provided by Licensor);

7.4.2.     Deliver to Licensor or destroy all copies of any materials relating to the Services and all Licensor Confidential Information; and

7.4.3.     Certify in writing to the Licensor that such delivery or destruction has been accomplished.

7.5.  Expiration Notices: Licensor may provide Licensee with notice prior to the expiration of a then current Subscription Term by providing notices in the form of messages displayed in the Services that provide advance notice that a new subscription license needs to be purchased to continue the Services. Licensee shall respond to such message as indicated therein and should a new subscription license be purchased this Agreement shall apply thereto and the Subscription Term shall be the term of such purchased subscription license.

8.     Representations and Warranties.

8.1.  Mutual Representations and Warranties: Each Party represents and warrants to the other that the execution and performance of this Agreement does not and will not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.

8.2.  Licensee Representations and Warranties: Licensee further represents and warrants to the Licensor that its use, and that of its users, of all Services and Deliverables, and all data, materials and other information provided by Licensee or its users to Licensor for the Services or Deliverables: (i) will comply with all laws, rules and regulations applicable to the Services and Deliverables; and (ii) will not infringe upon the intellectual property rights of any third party in Canada or any other jurisdiction.

8.3.  Licensor Representations and Warranties: Licensor represents and warrants that the Services will materially: (i) conform with the documentation or specifications provided by Licensor that describe the components and function of such Services. Should Licensor breach this warranty, Licensor shall use commercially reasonable efforts to make the Services materially conform with such documentation or specifications; and (ii) comply with all laws, rules and regulations applicable to the Licensor and the Services.

9.     Confidentiality.

9.1.  Licensee shall keep confidential and shall not disclose the existence or terms of this Agreement without our prior written consent. Licensee shall keep confidential and not disclose or use (except as contemplated by this Agreement) any information that Licensor provides to Licensee or its users, or other information relating to the Licensor which is accessed or otherwise obtained by Licensee or its users, including but not limited to information relating to Licensor’s business, operations or activities, finances, know-how, intellectual property, trade secrets, proprietary information, software, and software-based Services (collectively the “Confidential Information”).

9.2.  Licensor may disclose its relationship with Licensee through the use of Licensee’s name and logo in connection with promotional, marketing and sales purposes of Licensor. Such promotional, marketing, and sales materials may include, but are not limited to, sales pitch materials, social media sites, internet websites and/or other periodicals.

9.3.  The Parties agree that the confidentiality obligations imposed on each in this Agreement do not apply to any information which:

9.3.1.     is or becomes generally available to the general public other than as a result of an unauthorized disclosure by the Party which received the information (the “Receiving Party”);

9.3.2.     is already known to the Receiving Party;

9.3.3.     is independently developed by the Receiving Party without any reliance on the confidential information of the other Party (the “Disclosing Party”), as can be supported by evidence;

9.3.4.     is obtained from a third party who is not bound by any duty of confidentiality owed to the Disclosing Party; or

9.3.5.     must be disclosed as required by law, provided that the Receiving Party uses its reasonable best efforts to protect the confidentiality of such information that is required to be disclosed by law, limits disclosure to solely such information and to the government authority to which such disclosure is required to be provided by law, and provides prior written notice of the disclosure required by law to the Disclosing Party with sufficient advance notice for the Disclosing Party to seek to avert or limit the requirement for such disclosure by law.

10.  Limitation of Liabilities.

10.1.               Internet Delays: THE SERVICES AND DELIVERABLES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH INTERNET AND ELECTRONIC COMMUNICATIONS ISSUES.

10.2.               Disclaimer: EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 8 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DELIVERABLES, AND ALL OTHER DATA, MATERIALS, DOCUMENTATION AND INFORMATION PROVIDED BY LICENSOR ARE PROVIDED “AS IS,” AND LICENSOR DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. LICENSOR DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET LICENSEE’S OR ANY USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

10.3.               PRODUCTS AND SERVICES OF THE LICENSOR MAY BE GOVERNED BY EXPIRY DATE EMBEDDED IN THE SOFTWARE PROVIDED BY LICENSOR UPON IMPLEMENTATION THEREOF FOR THE SERVICES. IF A NEW SUBSCRIPTION LICENSE FOR THE SERVICES IS NOT PAID FOR BY THE EXPIRY DATE OF THE THEN CURRENT SUBSCRIPTION TERM, CUSTOM SCRIPT AND SCRIPT-BASED CUSTOMIZATIONS MAY STOP FUNCTIONING. NEW SUBSCRIPTION LICENSES CAN BE RENEWED VIA A RESELLER (THE PRESENT LICENSE WAS PURCHASED VIA A RESELLER), OR: SOFTWARESUPPORT@APPFICIENCYINC.COM, AS APPLICABLE. WARRANTIES EXTENDED IN THIS SECTION 10 SHALL NOT BE EXTENDED: (I) IF POOR DATA QUALITY INPUT BY LICENSEE OR ITS USERS CAUSE ANY COMPROMISED PERFORMANCE OF ANY SERVICES; OR (II) TO ANY SOFTWARE CODE THAT WAS SUCCESSFULLY TESTED AND IS FUNCTIONING AS PER LICENSEE SIGNED OFF VERSION.

10.4.               Exclusions of Remedies; Limitation of Liability:

10.4.1.  EXCEPT AS SET OUT HEREIN, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LOSSES, LIABILITIES, COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES) AND DAMAGES RESULTING FROM (A) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (B) A VIOLATION OF DATA PRIVACY AND SECURITY OBLIGATIONS SHALL BE CONSIDERED DIRECT DAMAGES FOR PURPOSES OF THIS AGREEMENT.

10.4.2.  THE LIMITATION UPON DAMAGES AND CLAIMS IN THIS SECTION 10.4 IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

10.4.3.  EXCEPT AS SET OUT IN THIS SECTION 10.4 THE CUMULATIVE LIABILITY OF LICENSOR TO LICENSEE FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

10.4.4.  THE LIMITATION OF LIABILITY IN THIS SECTION 10.4 IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

10.4.5.  NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF LIABILITY OR LIMITATION OF WARRANTY HEREIN SHALL BE APPLICABLE TO ANY INDEMNIFICATION OBLIGATIONS OF LICENSEE SET FORTH IN SECTION 11.

11.  Indemnities.

11.1.               Licensor’s Indemnity Obligations: Licensor agrees to indemnify, defend and hold harmless Licensee and its affiliates, officers, directors and employees from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party arising from Licensor’s gross negligence or willful misconduct.

11.2.               Licensee’s Indemnity Obligations: Licensee agrees to indemnify, defend and hold harmless Licensor and its affiliates, officers, directors and employees from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim arising from any Licensee data or information provided to Licensor, any breach of a term of this Agreement by Licensee or any of its users, any of Licensee’s systems, software, or instructions, any infringement or allegation of infringement of a third party’s intellectual property relating to any action, information, instruction or system of Licensor or its users, or Licensee’s gross negligence or willful misconduct.

11.3.               Indemnification Procedure: The party claiming an indemnity (the “Indemnitee”) shall promptly notify the other Party (the “Indemnitor”) in writing of any action for which the Indemnitee believes it is entitled to be indemnified (the “Action”). The Indemnitee shall cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3will not relieve the Indemnitor of its obligations under the applicable indemnity granted by the Indemnitor under Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

12.  NON-SOLICITATION. Licensee acknowledges and agrees that the employees of Licensor who perform the Services are a valuable asset to Licensor and are difficult to replace. Accordingly, during the term of this Agreement and for a period of one (1) year thereafter, Licensee shall not solicit, whether directly or indirectly, the employment of any Licensor employees without the prior written consent of Licensor.

13.  SERVICE LEVELS

13.1.               Support for Services. Licensor shall provide support for the Services as follows: (a) respond to support requests logged by Licensee in Licensor’s customer portal (each a “Support Request”) in accordance with the Severity Level relating thereto; and (b) provide Licensee with online access to support information, to the extent that Licensor makes such resources available to its other customers.

13.2.               Response Extensions. The Licensor may, on a case-by-case basis, decide to implement a reasonable extension of the Severity Level response or Resolution times.

13.3.               Support Response to Request: Licensor shall respond to all Support Requests within the following times based on Licensor’s determination of the severity of the associated issue (“Severity Level”), and the information and other assistance provided by the Licensee as required for Licensor’s response thereto: