Master Subscription Agreement – Terms & Conditions

During the applicable Subscription Period, Company shall make available the Subscription Services to Customer on the terms and subject to the conditions set forth in this Agreement.

Company is responsible for the deployment, operation, management and hosting of the Subscription Services, including the provisioning and maintenance of all server-side hardware, software and telecommunications capacity. Customer is responsible for all hardware, software, connectivity and related infrastructure required for Customer and Authorized Users to access and use the Subscription Services.

Company shall use commercially reasonable efforts to ensure that the Subscription Services are available for use by Authorized Users in accordance with Thrive 360's User Agreement and subject to the remedies specified therein.

Customer is solely responsible for the security and proper creation, use and termination of all Authorized User IDs, passwords and other security devices used in connection with the Subscription Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Customer shall immediately inform Company if there is any reason to believe that a user ID, password, or any other security device has or is likely to become known to any Person not authorized to use it, or is being or is likely to be used in an unauthorized way. Company reserves the right (in its sole discretion) to require Customer to change any or all of the user IDs, passwords or other security devices used by Customer in connection with the Subscription Services, and Customer shall promptly comply with any such requirement. If the Order Form specifies a maximum number of Authorized Users for Customer's subscriptions, then each Authorized User must be a unique individual and Customer shall be responsible for ensuring that the maximum number is not exceeded. An Authorized User license may be permanently transferred from a former Authorized User (such as an individual whose employment by Customer terminates) to a replacement Authorized User, but two or more individuals may not share a single Authorized User login.

Customer is solely responsible for its relationships with all Authorized Users and Affiliates of Customer, for their use of the Subscription Services, and for ensuring that they comply with all the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by an Authorized User or Affiliate of Customer shall be deemed to be a violation by Customer of such terms and conditions.

Company shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data.

Subject to the terms and conditions of this Agreement (including Customer's payment obligations hereunder), Company grants to Customer a limited, non-exclusive, non-transferable right and license during the applicable Subscription Period to access and use, and permit Authorized Users to access and use, the Subscription Services and Documentation solely for the Permitted Purpose.

Except for the rights granted in Section 4.1, no other rights in or to any SaaS Services or Company IP, express or implied, are granted to Customer.

As between the Parties, Customer shall retain all right, title and interest in and to all Customer Data. Customer hereby grants to Company a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display Customer Data solely to the extent necessary to provide the Subscription Services to Customer and as otherwise set forth in this Agreement.

Customer represents and warrants that: (a) it has obtained all necessary rights, releases and permissions to provide all Customer Data to Company and to grant the rights granted to Company in this Agreement; and (b) the Customer Data and its transfer to and use by Company as authorized by Customer under this Agreement do not violate any applicable laws or regulations or any privacy policies, terms of service or other agreements to which Customer is a party or by which Customer is otherwise bound.

Company's collection, use and disclosure of Personal Information in connection with the Subscription Services is governed by Company's Privacy Policy, which is incorporated herein by reference.

Customer shall pay Company the fees set forth in the applicable Order Form in accordance with the payment terms specified therein. Unless otherwise specified in the Order Form, all amounts are payable in U.S. dollars and are non-refundable except as expressly set forth in this Agreement.

All fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases under this Agreement.

If Customer exceeds the usage limits specified in the Order Form, Customer shall be billed for such additional usage at Company's then-current rates, and Customer agrees to pay the additional fees in the manner provided in the Order Form.

Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party).

The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Subscription Services or as otherwise permitted in this Agreement) or divulge to any third party any such Confidential Information.

The foregoing shall not apply to any information that the Receiving Party can document: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party without restriction; or (d) was independently developed without use of any Confidential Information of the Disclosing Party.

As between the Parties, Company retains all right, title and interest in and to the SaaS Services, Documentation, and all modifications, enhancements, and derivative works thereof, and all intellectual property rights therein.

Customer may from time to time provide suggestions, enhancement requests, recommendations or other feedback regarding the SaaS Services ("Feedback"). Company shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any Feedback into the SaaS Services.

Company warrants that: (a) the Subscription Services will perform materially in accordance with the applicable Documentation; and (b) the functionality of the Subscription Services will not be materially decreased during the applicable Subscription Period.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, THE SAAS SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

Company shall defend, indemnify and hold Customer harmless from and against any claim, suit or proceeding brought against Customer by a third party to the extent based on an allegation that the SaaS Services infringe or misappropriate such third party's intellectual property rights (an "IP Claim").

Customer shall defend, indemnify and hold Company harmless from and against any claim, suit or proceeding brought against Company by a third party to the extent arising from: (a) Customer Data; or (b) Customer's or any Authorized User's use of the SaaS Services in violation of this Agreement.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUE, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SAAS SERVICES; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER DATA; OR (C) ANY OTHER MATTER RELATING TO THE SAAS SERVICES.

EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

This Agreement commences on the Effective Date and continues until all Subscription Periods have expired or been terminated in accordance with this Agreement.

Either Party may terminate this Agreement for cause: (a) upon thirty (30) days' written notice of a material breach by the other Party if such breach remains uncured at the expiration of such period; or (b) immediately upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Upon termination of this Agreement, all rights and obligations of the Parties shall cease, except that: (a) all payment obligations incurred prior to termination shall survive; (b) Sections 5 (Customer Data and Privacy), 7 (Confidentiality), 8 (Intellectual Property Rights), 9.2 (Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), 12.3 (Effect of Termination), and 16 (General Provisions) shall survive; and (c) any other provision that by its nature is intended to survive termination shall survive.

Company shall have the right to modify any of the terms or conditions of this Agreement from time to time, provided that no such modification shall take effect until the start of the next Subscription Period following Company's notice to Customer of such modification sent no later than sixty (60) days prior to the start of such Subscription Period.

This Agreement shall be governed by, and construed in accordance with, the Law of the State of Texas, without regard to its choice of law principles. Any litigation between the Parties concerning this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts in Travis County, Texas. Nothing contained in this Section 16.2 shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.

Neither Party shall assign or otherwise transfer this Agreement, or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of law, without the prior written consent of the other Party. Notwithstanding the foregoing, Company may freely assign or otherwise transfer this Agreement without Customer's consent to any Affiliate or in connection with a merger, corporate reorganization or sale of all or substantially all of Company's business or assets to which this Agreement relates. Any purported assignment or transfer in contravention of this Section 16.3 shall be null and void ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.

Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to Company or to Customer at the addresses for notices set forth in the Order Form or as changed from time to time by notice. Such notices shall be effective when received.

If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).

The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement.

This Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Agreement.

This Agreement constitutes the entire agreement between Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. In the event of any conflict, discrepancy or inconsistency between an Order Form and this Agreement, the terms of the Order Form shall govern. Neither the course of conduct between Parties nor trade usage shall modify or alter this Agreement.