Ezassi Client Software Subscription
Terms and Conditions

This Enterprise Subscription Agreement is entered into as of the last date (the “Effective Date”) it is signed by the parties in the “Signature” section of this agreement, by and between Ezassi, Inc., a Delaware corporation (“Ezassi”), and the named client in the form fields below [LEGAL ENTITY] (including with its affiliates and related entities, “Client”). This Agreement, together with any materials available on the Site and specifically incorporated by reference herein, and all modifications made thereto are hereinafter collectively referred to as the “Agreement.”  Client and Ezassi hereby agree as follows:

1. DEFINITIONS
   • Application Software – shall mean, individually or collectively, the collection of computer software programs including Ezassi software used in the Ezassi solution that is owned, or developed, by Ezassi and made available to a Client via the Ezassi System (as hereinafter defined).

• Documentation – shall mean the then-current instructions, technical data, specifications, and User’s guides published by Ezassi from time to time and made generally available to Client regardless of the format or media on which such information is published.
• Ezassi Proprietary Information – shall mean, collectively and separately, the Ezassi System, Documentation, Services, Application Software, and other information provided, disclosed, or made available by Ezassi (regardless of the manner or the media in which such provision, disclosure, or access is made). Ezassi Proprietary Information shall not include: (a) information that is or becomes a part of the public domain through no act or omission of Client; (b) information that was not obtained by Client either directly or indirectly from Ezassi or from a third party known to be under a non-disclosure agreement with the owner of the confidential information; (c) information that is lawfully disclosed to Client by a third party without restriction on disclosure; (d) information that is independently developed by Client or known to Client prior to disclosure by Ezassi. Notwithstanding the foregoing, Ezassi Proprietary Information will not include Personal Information or any data, ideas, materials or other information submitted by a User.
• Ezassi System – shall mean the Application Software, databases, online community and reporting tools that reside on the Host Computer System (as hereinafter defined) and made available to Client pursuant to the Agreement. New software components and new functionalities that will extend the Ezassi System in the future may not be included in this Agreement without a written consent of both parties.
• Host Computer System – shall mean any computer(s) utilized by Ezassi to provide Client access to the Ezassi System, including those made available by a third party.

• Personal Information – shall mean information about Client or its Users, including a User’s name, mailing address, e-mail address, telephone number, contact information, and other related information disclosed and delivered to Ezassi by User via the Internet by means of the browser interface to the Ezassi System and from which User’s identity is discernible. Personal Information is and shall remain the sole property of Client (“Client Proprietary Information”).

• Services – shall mean Ezassi’s provision of access to the Ezassi System and/or services provided by Ezassi to Client pursuant to the Agreement, including, but not limited to, the provision of Application Software, any professional services (i.e. custom software development, systems integration, installation, training, consulting), support and maintenance.

• User – shall mean a person accessing the Site and using the Ezassi System with a unique user identification and password issued under a Client account.

2. HOSTING SERVICES; SUPPORT SERVICES; PROFESSIONAL SERVICES
   • Grant of License. Subject to Client’s compliance with the terms and conditions of this Agreement, Ezassi hereby grants to Client (and its agents, contractors and affiliates) a non-exclusive, worldwide, license to access and use the Ezassi System, all copies and derivative works thereof (by whomever produced), all formulas and functions used for data analysis and manipulation, and all related documentation and materials for its internal purposes only. This license is personal and does not include the right to a copy of the source code or object code of any software.

• Hosting Services. Ezassi shall use the Host Computer System to provide Client access to the Ezassi System (“Third Party Provider”). Ezassi will remain primarily liable for the performance of the Services hereunder and will ensure that its Third Party Provider complies with each of the terms and conditions of this Agreement. The application and all associated data will be hosted by the Third Party Provider, a SOC-3 compliant hosting provider.

• Support Services. Ezassi shall provide to Client standard support for the Ezassi System consisting of the telephone or e-mail “help desk” type support, taking support requests on problem situations, capturing descriptive data, and offering resolution assistance for problems and issues pertaining to the functionality of the Ezassi System on a 24×7 basis.
• Other Services. Ezassi shall timely perform and provide to Client the Services set forth in the applicable Statement(s) of Work (“SOW”) (attached hereto as Exhibit A) and elsewhere in this Agreement. Ezassi agrees that while on or entering Client premises, Ezassi employees and contractors shall comply with all applicable Client policies and procedures. Each Statement of Work shall refer to this Agreement and shall constitute a separate agreement, and each such Statement of Work shall incorporate therein all of the terms and conditions of this Agreement. In the event of a conflict between this Agreement and a Statement of Work (including any attachments thereto), this Agreement shall prevail.

3. USE OF SERVICES:
   • Client Responsibilities. Client will: (a) be responsible for its employees’, contractors’ and other users’ compliance with this Agreement and for all acts and omissions of such personnel as if they were Client’s acts or omissions; (b) be responsible for the accuracy, quality, and legality of Client’s data and information, including its Confidential Information, and the means by which Client acquired such data and information; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Ezassi promptly of any unauthorized access or use of which Client becomes aware; (d) use Services only in accordance with this Agreement and the Documentation; (e) comply with all laws applicable to Client’s use of the Services; and (f) promptly and fully cooperate with Ezassi and make the necessary personnel and resources available to Ezassi for Ezassi to deliver the Services, as reasonably requested by Ezassi.
   • Prohibited Uses. Client will not permit others in using the Services to: (a) make any Service available to, or use any Service for the benefit of, anyone other than Client or Users, unless expressly stated otherwise in a Statement of Work, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) remove any copyright, trademark or other intellectual property notices or property tags from any Service or the Ezassi Confidential Information, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) copy any content made available through the Service or a Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of any Service, other than framing on Client’s own intranets or otherwise for Client’s own internal business purposes or as permitted in the Documentation, (i) access any Service in order to benchmark or build a competitive product or service, (j) change, alter, modify, create derivative works from, translate, reverse assemble, reverse engineer, decompile or disassemble any Service or any of Ezassi’s Confidential Information, or (k) transmit or upload any material through the Services that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Ezassi’s, or any other person’s or entity’s, network, computer system, or other equipment. Any use of the Services in breach of this Agreement, Documentation or Statement of Work, by Client or its personnel that, in Ezassi’s reasonable judgment, threatens the security, integrity or availability of Ezassi’s services, may result in Ezassi’s immediate suspension of the Services. Ezassi will, however, use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to such suspension.
   • Removal of Content. If Ezassi is required by any third-party rights holder to remove content from the Services, or receives information that content provided to Client may violate applicable law or third-party rights, Ezassi may discontinue Client’s access to such content through the Services, and/or may notify Client that it must discontinue all use of such content, and to the extent not prohibited by law Client will do so and promptly remove such content from its systems. If Client does not take required action in accordance with the above, Ezassi may disable the applicable content or Service until the potential violation is resolved.
4. TERM AND TERMINATION
   • The term of the Agreement shall initially be for a period of one year commencing upon the Effective Date (the “Initial Term”), at which time this Agreement and each applicable Statement of Work shall automatically renew for successive terms of one (1) year each (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party provides written notice of its intent not to renew no later than sixty (60) days prior to the expiration of the Initial Term or then-current term Renewal Term.
   • Either party may immediately terminate the Agreement in the event the other party breaches the Agreement, which breach is not cured by the other party within thirty (30) days after written notice from the non-breaching party specifying the breach.
5. BACKUP, DISASTER RECOVERY, PRIVACY AND DATA SECURITY; AUDIT; DATA RETENTION
   • Unless otherwise set forth in the applicable Statement of Work, Ezassi will perform, or cause to be performed by its Third Party Provider, an incremental backup of the Ezassi System, including any Covered Data, on a daily basis and full back up every 2 weeks.
   • Disaster Recovery. Ezassi shall and shall have its Third Party Provider maintain throughout the Term the disaster recovery plan that provides for the restoration of the Services at an alternate location within two days of a failure (“Disaster Recovery Plan”).
   • Privacy and Data Security. Ezassi shall maintain and comply with the following privacy and data security requirements.
     • Ezassi implements and maintains security procedures and internal controls to protect the confidentiality, integrity, and security of Personal Information and Client’s Confidential Information in accordance with commercially reasonably prudent practices in the application service provider industry, including industry-standard encryption, such as the Secure Socket Layer (“SSL”) protocol, to protect data transmissions to and from browsers. Ezassi does not, however, guarantee that unauthorized third parties will never be able to defeat these measures or use such information for improper purposes. Ezassi assumes no liability for such information once transported onto a non-Ezassi managed communication network, including, but not limited to, the Internet.
       • Ezassi shall promptly notify Client in writing in the event that: (i) any Personal Information is disclosed or by Ezassi (including its employees, its Third Party Provider or its other (sub)contractors in violation of this Agreement; (ii) Ezassi (including its employees, its Third Party Provider or its other contractors) discovers, is notified of, or suspects the unauthorized access, acquisition, disclosure or use of Personal Information has occurred or may occur, or (iii) Ezassi (including its employees, its Third Party Provider or its other contractors) discovers or is notified that a breach of Section 5 has occurred or may occur (whereby any incident under (i) and/or (ii) and/or (iii) shall be a “Security Incident”). Ezassi shall investigate the Security Incident and to the extent that Ezassi determines that a Security Incident caused by Ezassi’s breach of its obligations under this Section 6 gives rise to a need to provide notification to public authorities or affected individuals (collectively, “Remedial Actions”), Ezassi shall, at Ezassi s cost, undertake such Remedial Actions.

6. CONFIDENTIALITY
   • Definition of Confidential Information. “Confidential Information” means information disclosed by a party (the “Disclosing Party”) to the other party (the “Recipient”) that is designated as confidential or that reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Ezassi includes the Services, System, and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement, business information, and all Statements of Work (including pricing). Confidential Information does not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
   • Requirement of Confidentiality. The Recipient agrees that it will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates’, officers, employees, consultants and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 7; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. Notwithstanding the foregoing, Ezassi may disclose the terms of this Agreement to a subcontractor to the extent necessary to perform Ezassi’s obligations to Client under this Agreement, under terms of confidentiality materially as protective as set forth herein. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 7 will survive termination and continue for so long as the applicable information constitutes Confidential Information.
   • Compelled Disclosure. The Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Recipient gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
   • Use of Knowledge. Ezassi may use and disclose non-identifying usage data; knowledge gained, information and suggestions provided by Client, as the foregoing relates to Ezassi’s System, software, business processes or documentation.
   • Identification of Parties. Ezassi may identify Client as its customer and use Client’s name and logos to the extent necessary to provide Client the services under this Agreement. In addition, all or part of the Ezassi System for Client, and particularly the Ezassi hosted software platform for Client, may include a small visible banner link that reads “Powered by Ezassi”. Client will share business value metrics associated with this solution with Ezassi. Ezassi may use such metrics, provided that Ezassi does not reveal Client as the source of any metrics and that Ezassi does not disclose any Client-specific company information associated with business value metrics.

7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
   • Ezassi warrants that the Ezassi System provided under the Agreement conforms in all material respects to the Statement of Work provided that the Ezassi System is used in accordance with the provisions of the Agreement and applicable Statements of Work. Ezassi does not warrant that operation of the Ezassi System shall be uninterrupted or error free. Ezassi does not warrant that the Ezassi System is compatible with any hardware or browser software that is not approved as compatible by Ezassi or that the Ezassi System will meet Client’s requirements. As Ezassi’s sole liability and Client’s exclusive remedy for any breach of the foregoing warranty, Ezassi shall , at its own expense, at Ezassi’s sole and absolute option, and in response to written notice of a warranty claim by Client received by Ezassi within ninety (90) days after the initial failure to substantially conform in all material respects to the Statement of Work, either (i) promptly modify the Ezassi System so that it substantially conforms in all material respects to the Statement of Work; or (ii) promptly (A) refund to Client the prorated amount of the fees paid to Ezassi based on the number of months remaining in the Term following the month in which Client notifies Ezassi of a nonconformity and (B) refund the Client implementation fees should a breach of this warranty occur within the Term of this Agreement.
   • OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE arising from a course of dealing or usage of trade are expressly excluded and disclaimed BY PROVIDER.
8. LIMITATION OF LIABILITY
   • IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OR EQUIPMENT DOWN TIME, AND LOSS OF OR CORRUPTION TO DATA) OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF THE PARTY CLAIMING THE NEED TO BE RECOMPENSED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
   • IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
   • The exclusions and limitations in Sections 9.1 and 9.2 do not apply to Client’s breach of Section 3 (Use of Services), Client’s breach of Section 6 (Payment Terms), a party’s breach of Section 7 (Confidentiality), or either party’s obligations under Section 10 (Indemnity).
9. INDEMNITY
   • Ezassi shall indemnify, defend, and hold Client harmless from and against any liability and costs incurred by Client to the extent that such liability or costs are the result of any claim or suit brought against Client by a third party alleging that any submission, authorized use of the Application Software, or Client’s use of Ezassi’s Services in accordance with this Agreement infringes such third party’s patent or copyright, provided that Client: (a) timely notifies Ezassi of any such claim or suit; (b) permits Ezassi to take sole control of the defense and settlement of any such claims, and (c) gives Ezassi reasonable information and assistance in settling and/or defending the claim. After Ezassi has assumed the defense of any of the foregoing claims, Ezassi shall not be liable for any costs or expenses incurred by Client without Ezassi’s prior written authorization. Ezassi will have no obligations under this Section with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Client to Ezassi; (b) use of the Services or Application Software in combination with any materials or equipment not supplied to Client or specified by Ezassi in writing; (c) any modifications or changes made to the Application Software or Services by or on behalf of any person or entity other than Ezassi; (d) the use of any version of the Ezassi Services or Application Software other than the most current release made available by Ezassi; (e) Client Confidential Information; or (f) Client’s breach of this Agreement. If an Application Software or Service, or any part thereof, becomes, or in the opinion of Ezassi may become, the subject of a claim of infringement or misappropriation, Ezassi may, at its option: (x) obtain a license for Client’s continued use of that Application Software or Service in accordance with this Agreement; (y) replace or modify the Application Software or Services so that they are no longer claimed to infringe or misappropriate; or (z) terminate this Agreement and refund to Client any portion of the fees prepaid by Client for the infringing Application Software or Service. This Sections sets forth Ezassi’s sole liability and Client’s exclusive remedy for any intellectual property infringement or misappropriation claims.
   • Client shall indemnify, defend, and hold Ezassi harmless from and against any liability and costs incurred by Ezassi to the extent that such liability or costs are the result of any claim or suit brought against Ezassi by a third party arising out of relating to (i) any allegation that Client’s Confidential Information or any other content provided by Client misappropriates or infringes any third party’s intellectual property or proprietary rights or (ii) any act or omission of CLIENT in violation of its obligations under the Confidentiality Agreement, provided that Ezassi (a) notifies CLIENT of any such claim or suit; and (b) gives CLIENT reasonable information and assistance in settling and/or defending the claim or suit.
10. GENERAL PROVISIONS

This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. All communications required or otherwise provided under this Agreement will be in writing and will be deemed given when delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight courier service; to the address set forth for the applicable party on the first page of this Agreement, as may be amended by the party by written notice to the other party in accordance with this Section. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign this Agreement, in whole, to a successor of all or substantially all of the assets of that party through merger, reorganization, consolidation or acquisition. No assignment will relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of this Agreement will be null and void, and the other party will have the right to terminate this Agreement immediately upon written notice. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Both parties participated in the drafting and negotiating of this Agreement. In case any one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party. This Agreement, including any schedules and exhibits hereto and the Statements of Work previously entered, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof or rights herein will be effective unless explicitly set forth in writing and signed by the party so waiving. Neither party will be liable for delay or failure in performing any of its obligations (other than payment obligations) hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties. There are no third party beneficiaries, intended or otherwise, to this Agreement. Nothing in this Agreement will constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party will have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement.  

Ezassi and Client have executed this Agreement by their duly authorized representatives to be effective as of the Effective Date set forth in the preamble hereof.