Subscription Agreement Terms

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Verb Data Subscription Agreement Standard Terms
This Verb Data Subscription Agreement Standard Terms (“Standard Terms”), effective as of the date you purchase an applicable Subscription (“Effective Date”), is by and between you (“Customer”) and Verb Data, Inc. (”Provider” or “Verb Data”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
1.  Access and Use. 
    (a) Subscription Agreement. Pursuant to the terms of these Standard Terms, Verb Data will provide you with access to the Verb Data platform and services as specified by the terms of any applicable Subscription Agreement. The Subscription Agreement is incorporated into these Standard Terms by reference and will include a description of the services purchased (the “Services”), data storage limitations (“Storage Limits”), subscription period (“Term”), fees payable (“Fees”), and other similar terms. To the extent that any conflict arises between these Standard Terms and a Subscription Agreement, these Standard Terms shall control.
(b) Provision of Access. Subject to and conditioned on Customer’s payment of applicable fees and compliance with all other terms and conditions of these Standard Terms, the Subscription Agreement and Verb Data’s Terms of Use and Privacy Policy (collectively, the “Agreement”), Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Services during the Term, as defined on the Subscription Agreement, solely for use by Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder (“Authorized Users’), in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
  (c)   Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 11(g)) license to use Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Services (the “Documentation”) during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
    (d)   Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. All Authorized Users must accept the Verb Data Terms of Use prior to accessing the Services and their use of the Services is conditioned upon their compliance with the terms of the Agreement. Customer will be directly liable for its Authorized Users and for any failure by Authorized Users to abide by the use restrictions provided in the Terms of Use.
    (e) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
    (f)   Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized End User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law;or (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
    (g)   Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner (“Aggregated Data”). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
2.  Customer Responsibilities.
    (a)  General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
    (b)  Third-Party Products. Provider may from time to time make third-party products provided with or incorporated into the Services (“Third-Party Products”) available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
3.  Service Levels and Support.
    (a)  Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.
    (b) This Agreement does not entitle Customer to any support for the Services.
4.  Fees and Payment.
    (a)  Fees. Customer shall pay Provider the fees (”Fees”) as set forth in the Subscription Agreement. Customer shall make all payments hereunder in US dollars on or before the due date or as otherwise provided in the Subscription Agreement. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
    (b)  Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
    (c)  Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5.0% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
5.  Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6.  Intellectual Property Ownership; Feedback.
    (a)  Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the Agreement (“Provider IP”) and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
    (b)  Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services, excluding Aggregated Data (“Customer Data”). Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
    (c)  Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7.  Limited Warranty and Warranty Disclaimer.
    (a)  Provider warrants that the Services will conform in all material respects to the service levels set forth in Exhibit A when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A. The remedies set forth in Exhibit A are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 7(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
    (b)  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a),THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8.  Indemnification.
    (a)  Provider Indemnification.
(i)  Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii)  If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Services. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii)  This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data ; or (D) Third-Party Products.
    (b)  Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
    (c)  Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 8 EXCEED THE AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
9.  Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.  Term and Termination.
    (a)  Term. The Term of the Agreement and any renewal terms are as provided in the Subscription Agreement.
    (b)  Termination. In addition to any other express termination right set forth in this Agreement:
(i)  Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 1(c) or Section 6;
(ii)  either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii)  either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    (c)  Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
    (d)  Survival. In all such cases, the Terms shall terminate, including, without limitation, your license to use the Services, except those Sections you would expect to survive termination.
11.  Miscellaneous.
    (a)  Entire Agreement. These Standard Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Standard Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Standard Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Standard Terms, excluding its Exhibits; (ii) second, the Exhibits to these Standard Terms as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
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    (b)  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. 
    (c)  Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    (d)  Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    (e)  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    (f)  Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington and County of New Castle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    (g)  Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    (h)  Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
    (j)  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
    (k)  Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
    (l)  Promotion. Each party hereby grants to the other party a nonexclusive, non-transferable, right and license to display such party's trademarks and logo (subject to the terms and conditions of such party's standard trademark usage guidelines) for purposes of reference and acknowledgement.
    (m)  Data Processing Addendum. The terms of the Data Processing Addendum shall apply to: (i) the processing (as defined in the GDPR) of personal data (as defined in the GDPR) that is regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Provider solely on behalf of Customer, if any; and (ii) from and after the CCPA Effective Date (as defined in the DPA), the processing (as defined in the CCPA) of personal information (as defined in the CCPA) that is regulated by the California Consumer Privacy Act of 2018 (the “CCPA”) by Provider solely on behalf of Customer, if any. If Customer requires, in its sole discretion, specific terms for processing Customer Content which includes personal information, Customer may submit a form agreeing to the terms of the Data Processing Addendum ("DPA") at www.verbdata.com/dpa, and the DPA on the Site at the time of such submission will be incorporated into this Agreement on the date of such submission or the Effective Date, whichever is later.
EXHIBIT A
SERVICE LEVEL AGREEMENT
1. Uptime Requirements; Response Time Requirements
Verb Data will use best efforts to ensure that the hosted items will be available at least 99.5% of the time to the extent within Verb Data’s control, measured over each calendar month during the Term, excluding scheduled maintenance (Uptime Requirement).
2. Service Credit
In the event that Verb Data, in its sole discretion, feels it has failed to provide adequate uptime, it may compensate the Customer by issuing a credit against any applicable amounts paid or owed by the Customer for the month during which the failure occurred.
3. Software Maintenance; Problem Escalation
In the event a defect, bug, or other issue affecting the hosted Items is detected by either Verb Data or the Customer, the issue will be categorized as an incident pursuant to the criteria below. Each incident will be communicated to the defined contacts and Verb Data will use its best efforts to resolve the problem as defined in the table below.
1.Severity Level 1 (Critical). A Severity Level 1 problem means any of the following:
1.A complete outage of a critical service
2.An outage that affects 25% or more of the Customer’s users
3.A recurring temporary outage of a critical service
4.Inability to provision a service
5.Loss of data
6.Inability to service user technical support requests
7.Very serious failure rendering the services, or any major function of any of the services, inoperable or severely impaired
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2.Severity Level 2 (Serious). A Severity Level 2 problem means any of the following:
1.A significant degradation of the service affecting 25% or more of Customer’s users
2.An outage that affects 10-25% of the Customer’s users Capabilities that are materially different from those described in the product definition.
3.Serious failure of the services that causes material inconvenience to the Customer, its Affiliates and/or their users
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3.Severity Level 3 (Moderate). A Severity Level 3 problem means any of the following:
1.A minor degradation of the service affecting 10% or more of Customer’s users
2.An outage that affects 5-10% of the Customer’s users
3.Recent modifications to the system that cause services to operate in a way that is materially different from those described in the product definition for non-essential features.
4.A failure of the services that causes material inconvenience to the Customer, its Affiliates, and/or their users
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4.Severity Level 4 (Minor). A Severity Level 4 problem means any of the following:
1.A minor degradation of the service affecting less than 10% of Customer’s users
2.A small system delay, but no loss of data was experienced or a minor application error occurred
3.Services do not operate strictly according to the documentation and/or technical requirements
Severity Level
Initial Response
Update Interval
Verb Data Expected Resolution
Critical (Level 1)
Within 2 hours after the Customer notifies Provider of the problem or Provider otherwise becomes aware of the problem
Every 2 hours
Reasonable Workaround within 4 hours
Final Resolution within 12 hours
Serious (Level 2)
Within 6 hours after the Customer notifies Provider of the problem or Provider otherwise becomes aware of the problem
Every 6 hours
Reasonable Workaround within 12 hours
Final Resolution within 24 hours
Moderate (Level 3)
Within 16 hours after the Customer notifies Provider of the problem or Provider otherwise becomes aware of the problem
Every 12 hours
Reasonable Workaround within 2 business days
Final Resolution within 3 business days
Minor (Level 4)
Within 24 hours after the Customer notifies Provider of the problem or Provider otherwise becomes aware of the problem
N/A
Reasonable Workaround within 3 business days
Final Resolution within 10 business days
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Subscription Agreement
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Outline
1. Uptime Requirements; Response Time Requirements

2. Service Credit

3. Software Maintenance; Problem Escalation

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