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Terms

1. Services

1.1 Subject to the terms of the Agreement, Samespace grants Customer a non-transferable, non-sublicensable, non-exclusive Subscription to access and use the Samespace Cloud Service during the Subscription Term.

1.2 Samespace will provide Support as described in the Samespace Support Policy, attached to this Agreement as Exhibit A.

1.3 Customer may retain Samespace to perform Professional Services as set forth in a mutually acceptable Statement of Work (“SOW”).

1.4 Customer may retain Samespace to provide training as set forth in a Services Order.

2. Invoicing & Payment

2.1 Payments will be due within thirty (30) days of the date of the applicable invoice unless otherwise specified in a Services Order.

2.2 Fees shall be as set forth in the Services Order or SOW (“Fees”). Unless otherwise stated in a Services Order or this Agreement: (a) all Fees are quoted and payable in the currency set forth in the applicable Services Order, and (b) Customer will be invoiced for the Professional Services Fees as set forth in the SOW.

2.3 Customer will reimburse all pre-approved travel and other expenses incurred in connection with the Services.

2.4 Fees are exclusive of applicable Taxes and Regulatory Charges. Customer will reimburse Samespace for Taxes and Regulatory Charges arising in connection with the Services.

2.5 If a Customer in good faith disputes the amount of any invoice, Customer will timely pay the undisputed amount and will notify Samespace in writing of the disputed amount no later than the date payment would otherwise be due, providing the reasons for the dispute. The parties will attempt in good faith to resolve the dispute within thirty (30) days after Samespace’ receipt of Customer’s notice of dispute (the “Resolution Period”), during which time Customer’s withholding of the disputed amount will not be considered a material breach of this Agreement. Upon resolution of the dispute, Customer will pay the resolved amount promptly but in any case within ten (10) days of mutual written agreement resolving the dispute. If the dispute is not resolved within the thirty-day (30) Resolution Period, then each party will be entitled to pursue all available remedies.

3. Term & Termination

3.1 The term of the Agreement shall commence upon the Effective Date and shall continue for the duration of any effective Services Orders or SOWs.

3.2 In the absence of a written non-renewal notice provided at least sixty (60) days prior to the end of the applicable Term, each Subscription Term shall automatically renew for Renewal Subscription Terms as set forth in the applicable Services Order.

3.2 Either party will have the right to terminate the Agreement by written notice to the other party if (a) the other party has breached a material obligation under the Agreement or any Services Order or SOW and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party; provided such breach is curable, it being understood that a breach of Sections 4.1 and 4.2 are incurable.; or (b) 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 any termination of the Agreement by Customer for breach by Samespace, Samespace shall refund any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. Upon any termination of the Agreement by Samespace for breach by Customer, Customer shall pay any unpaid Fees covering the remainder of the Subscription Term after the effective date of termination, and prepaid fees shall not be refunded. Termination of the Agreement by a party shall be without prejudice to any right or remedy of such party under the Agreement or applicable law. If, during the cure period referenced in 3.2(a), Samespace documents an effort to promptly cure the breach, then, notwithstanding anything to the contrary, Customer will not terminate this Agreement or a Services Order or SOW while such good faith efforts are continuing. Samespace’ efforts to cure the breach may not exceed 120 days from Customer’s notice.

3.4 Notwithstanding any term in the Agreement to the contrary, Samespace reserves the right to suspend the Services, or portion thereof, or reject or cancel the transmission of any information through the Samespace Service based upon (i) reasonable belief that the use of the Samespace Services is in violation of applicable Laws, (ii) Customer’s failure to pay amounts when due, or (iii) an imminent compromise to the security or integrity of the network. As practicable depending on the circumstances, Samespace will provide notice of the suspension and keep Customer reasonably informed of Samespace’ efforts to restore the Services.

3.5 Except as otherwise stated therein, upon execution by both parties, each Services Order shall be a non-cancelable, non-refundable order by Customer. The Fees and Subscription Term stated on each Services Order shall be applicable only for that Services Order. Fees shall apply during periods of suspension and as incurred for unauthorized use of the Samespace Cloud Service. Customer’s purchase of the Samespace Service is not conditioned on the availability of any future service or enhancement. Upon termination of this Agreement (or a Services Order) for any reason all licenses granted hereunder and Customer’s access to the Services will terminate.

4. Intellectual Property

4.1 All Intellectual Property Rights in the Services (and other materials or services provided hereunder) remain the exclusive property of Samespace and its licensors or suppliers, as applicable. Samespace and its licensors and suppliers reserve all rights not expressly granted in this Agreement and own all rights in all Derivative Works of the Services (and other materials provided hereunder) and any copy, translation, modification, adaptation or derivation (including any improvement or development) of the Services (and all other materials provided hereunder).

4.2 No implied licenses are granted hereunder. Customer is granted no rights in or to the Services except as expressly set forth under a Services Order. Customer shall not (a) modify or create any Derivative Works, functionally equivalent works, or translations of the Services or any other materials provided hereunder, (b) reverse engineer the Services or take any action that jeopardizes Samespace’ rights or the rights of its licensors and service providers in any materials, including the Services, made available to Customer hereunder; (c) access the Services in order to build a competitive product or service or to assist anyone else to compete with Samespace; or (d) use the Services in a way that violates any Law. Samespace Services include tools that can be used to create content related to Customer Data. The algorithms, compilations, collation methods and anonymized analyses created through the use of Samespace Services are considered Derivative Works and therefore are retained by Samespace. Customer retains, however, non-anonymized analyses of Customer Data obtained from its use of such tools.

4.3 As between Samespace and Customer, the Customer Data are the proprietary material of Customer and shall be considered Customer’s Confidential Information. Customer grants Samespace a non-exclusive, non-sublicensable (except to parties working on Samespace’ behalf), non-transferable, royalty-free license to access, process, store, transmit, and otherwise make use of the Customer Data as directed by Customer or as necessary to provide the Services and to otherwise fulfill its obligations under and in accordance with the Agreement.

4.4 To the extent not already owned by Samespace and subject in each case to Section 12.1 to the extent Customer is identified by name or logo, Customer, on behalf of itself and its Related Parties, hereby grants Samespace a perpetual, exclusive, royalty-free, worldwide license to use or disclose (or choose not to use or disclose), and create derivative works of Feedback for any purpose, in any way, in any media worldwide.

4.5 Nothing in this Agreement precludes or limits Samespace in any way from providing materials or services that are similar to materials or services provided or contemplated in this Agreement or developing deliverables or other materials or services that are similar to or compete with any materials or services developed as a result of this Agreement, regardless of their similarity to any Services. Samespace will be free to use any concepts, processes, techniques, improvements or other know-how developed by Samespace in the course of performance of this Agreement free from any use restriction or payment obligation. For the avoidance of doubt, but subject to this Agreement, including this Section 4.5, Samespace does not claim any rights to any of Customer’s Confidential Information.

5. Warranties

5.1 Samespace warrants that the (i) Professional Services and (ii) Maintenance and Support will be performed in a professional and workmanlike manner and in accordance with applicable requirements of this MSA.

5.2 Samespace warrants that the Samespace Services will materially conform to the specifications set forth in the Documentation. For purposes of this Section 5, “Documentation” shall mean applicable technical published manuals that accompany the Samespace Services.

5.3 Customer’s sole and exclusive remedy for breach of the warranties set forth in this section shall be for Samespace to re-perform non-conforming services or to correct errors.

5.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” ‘WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Samespace MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE Samespace SERVICE WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR ERROR-FREE.

6. Limitation of Liability

6.1 THE CUMULATIVE AGGREGATE LIABILITY OF A PARTY AND ALL OF ITS RELATED PARTIES (AND IN THE CASE OF Samespace, ITS LICENSORS OR SERVICE PROVIDERS) UNDER THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE FEES PAID TO Samespace DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE COMMENCEMENT OF THE DISPUTE FOR THE SERVICES THAT ARE THE SUBJECT OF THE DISPUTE. CUSTOMER AGREES THAT THIS LIMITATION ON LIABILITY FORMS A FUNDAMENTAL BASIS OF THE BARGAIN HEREUNDER, IN THE ABSENCE OF WHICH, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD HAVE BEEN DIFFERENT.

6.2 IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF Samespace, ITS LICENSORS OR SERVICE PROVIDERS) BE LIABLE TO THE OTHER PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF Samespace, ITS LICENSORS OR SERVICE PROVIDERS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OF ANY CHARACTER, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOST PROFITS, REVENUE, DATA OR USE, COMPUTER FAILURE OR MALFUNCTION AND TELECOMMUNICATIONS CHARGES FROM UNAUTHORIZED ACCESS), COVER DAMAGES , OR OTHER SIMILAR DAMAGES REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF Samespace, ITS LICENSORS OR SERVICE PROVIDERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.

6.3 THIS LIMITATION OF LIABILITY SHALL NOT OPERATE SO AS TO: (I) REDUCE ANY AMOUNTS DUE AS FEES; (II) LIMIT LIABILITY ARISING IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS; OR (III) LIMIT LIABILITY FINALLY DETERMINED TO HAVE RESULTED FROM A PARTY’S GROSS NEGLIGENCE OR WILFULL MISCONDUCT. THIS SECTION WILL NOT APPLY TO DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW (IN WHICH EVENT THE LIMITATION WILL BE THE MINIMUM AMOUNT REQUIRED BY LAW).

7. Confidentiality

7.1 During the Confidentiality Period, recipient shall (a) protect the confidentiality of all Confidential Information using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) to prevent unauthorized use or disclosure; (b) not use any Confidential Information except as expressly authorized in the Agreement; (c) not disclose, orally or in writing, any Confidential Information to any person, other than an employee, consultant or agent of recipient bound by terms at least as restrictive as those set forth herein with a need to know such Confidential Information.

7.2 The obligations in Section 7.1, however, shall not apply to any information which: (a) is already in the public domain or becomes available to the public through no breach of the Agreement by recipient; (b) was in the recipient’s possession prior to receipt from disclosure, as proven by recipient’s written records; (c) is received by the recipient from a third party free to disclose such information to recipient; or (d) is independently developed by recipient without use of the Confidential Information.

7.3 Nothing in this Agreement shall prevent a party from disclosing Confidential Information to the extent required by applicable Law, judicial or administrative process, provided that recipient shall: (i) notify disclosure of any duty to disclose, affording opportunity for disclosure to take protective actions (except to the extent notice is prohibited by Law), and (ii) disclose only as much of the Confidential Information as required, maintaining all proprietary notices applicable to such Confidential Information.

7.4 Upon written request in connection with termination of the Agreement, each party shall deliver to the other party or destroy all copies of such other party’s Confidential Information. Notwithstanding the foregoing, recipient may retain an archival record of Confidential Information to the extent required pursuant to applicable Law subject to recipient’s compliance with the remaining terms of this section.

8. Compliance with Laws

Each party shall comply with all applicable Laws in connection with the performance of its obligations under this Agreement. Notwithstanding the foregoing, however, Samespace is not responsible for ensuring that the Services, or Customer’s use thereof, comply with any Laws applicable to Customer’s business or industry, including, without limitation communications and privacy regulations such as the Telephone Consumer Protection Act of 1991 and the Health Insurance Portability and Accountability Act (HIPAA).

9. Use of the Service

9.1 Customer will not, and will not permit or authorize others, to use the Samespace Service for any of the following:

  1. to violate applicable Law;
  2. to transmit Malicious Code;
  3. to transmit 911 or any emergency services (or reconfigure to support or provide such use);
  4. to interfere with, unreasonably burden, or disrupt the integrity or performance of the Samespace Services or third-party data contained therein;
  5. to attempt to gain unauthorized access to systems or networks; or
  6. to provide the Samespace Services to non-User third parties, including, by resale, license, lend or lease.

9.2 Customer will use commercially reasonable efforts to prevent and/or block any prohibited use by Customer personnel or Customer’s Users.

9.3 Customer will maintain any reasonable, appropriate administrative, physical, and technical level of security regarding its account ID, password, antivirus and firewall protections, and connectivity with the Samespace Services.

9.4 Customer shall maintain strict security over all VoIP Services lines. Customer acknowledges that Samespace does not provide Customer the ability to reach 911 or other emergency services and Customer agrees to inform any individuals who may be present where the Samespace Services are used, or who use the Samespace Services, of the non-availability of 911 or other emergency dialing.

9.5 If the Samespace Service will be used to transmit or process Sensitive Information, Customer will ensure that all Sensitive Information is captured and used solely via the use of available Security Features.

9.6 Recordings. As between Samespace and Customer, Customer acknowledges that Recordings are solely within its discretion and control. Without limiting the foregoing: (i) Customer accepts sole responsibility for determining the method and manner of performing recording such that it is compliant with all applicable Laws and for instructing the services accordingly; and (ii) Customer shall ensure that Recordings shall be made only for diagnostic, quality assurance, archival, and/or Support purposes, and in any event only for purposes required and/or in compliance with, all applicable Laws. Customer will ensure that either (a) Recordings will not knowingly include any bank account number, credit card number, authentication code, Social Security number, or other personal or Sensitive Information, except as allowed or required by all applicable Laws; or (v) Recordings are encrypted at all times. Customer shall not modify, disable, or circumvent the Recording encryption feature within the Samespace Services and shall otherwise ensure that it will use the Samespace Services in compliance with the encryption feature.

10. Customer Data

General.

  • Customer acknowledges and agrees that the Customer Data may be transferred or stored outside the country where Customer and its customers are located in order to carry out the Services and Samespace’ other obligations under the Agreement.

  • Customer represents and warrants that it has obtained all consents necessary for Samespace to collect, access, process, store, transmit, and otherwise use Customer Data in accordance with the Agreement.

  • Customer shall comply with all requirements of integrity, quality, legality and all other similar aspects in respect of Customer Data and Messages. Samespace may, but is not obligated to, review or monitor any Customer Data. Samespace expressly disclaims any duty to review or determine the legality, accuracy or completeness of Customer Data used through the Samespace Services.

  • If Customer, End Users or Persons provide payment card information to the Services, Customer retains responsibility for its compliance with all applicable standards, including the Payment Card Industry Data Security Standards (“PCI-DSS”).

Protection of Customer Data.

  • Unless Customer’s failure to comply with Section 9 prevents Samespace from doing so, Samespace shall maintain reasonable, appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.

  • Samespace shall not modify, disclose, or access Customer Data except to provide the Services and perform Support to prevent or address service issues or technical problems, at Customer’s request in connection with Support, or to the extent otherwise permitted in the Agreement.

11. Indemnification

11.1 Subject to the Exclusions, Samespace shall pay to defend Customer at Samespace’ expense, indemnify Customer against any judgments finally awarded by a court and pay any settlements approved by Samespace with respect to any third-party claims that the original, unchanged Samespace Service, as it stands alone, infringes or misappropriates any third party’s Intellectual Property Rights as identified in a patent or copyright that is valid and enforceable in the United States. Samespace may at any time and at its option and expense: (i) obtain for Customer the right to continue using the Samespace Service, (ii) modify or replace or modify the Samespace Service so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably effected by Samespace, terminate Customer’s right to use the Samespace Service and refund to Customer any prepaid, unused Fees. The provisions of this Section 11 state the sole, exclusive, and entire liability of Samespace and are Customer’s sole remedy with respect to the infringement of third party intellectual property rights.

11.2 Customer will defend Samespace and its Related Parties at Customer’s expense, indemnify Samespace and its Related Parties against any judgments finally awarded by a court, and pay any settlements approved by Customer with respect to any claims: (a) that Customer Data and/or Customer’s method or process of doing or conducting business infringes any Intellectual Property Rights of a third party; (b) arising from Customer’s non-compliance with Section 4 (Intellectual Property); or (c) that the Services or the use thereof infringes any Intellectual Property Rights of a third party to the extent such claim arises in connection with an Exclusion(s).

11.3 A party entitled to indemnification (“Indemnified Party”) shall take all reasonable steps to mitigate any potential expenses and shall provide the other party (the “Indemnifying Party”) with: (i) prompt written notice of any such claim or actions, or possibility thereof upon becoming aware of the same; and (ii) relevant information (subject to confidentiality restrictions the Indemnified party owes to third parties), authority and reasonable assistance to settle or defend and such claim or action. Failure to provide timely notice or reasonable assistance will relieve the Indemnifying Party of its indemnification obligations to the extent that the Indemnifying Party has been materially prejudiced thereby. The Indemnified Party shall tender sole control and authority over to the Indemnifying Party, and reasonably assist with the defense or settlement of such claim or action. Notwithstanding the foregoing, the Indemnified Party shall have the right to retain counsel of its own choice, at its own expense, in respect of the subject of the Indemnification, for purposes including services as co-counsel, or to monitor the defense provided by the Indemnifying Party’s appointed counsel. The Indemnified Party shall have the right to approve counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld or delayed.

12. Miscellaneous

12.1 Marketing. Customer grants Samespace the right to use Customer’s name and logo to identify Customer as a Samespace customer. Customer grants Samespace the right to issue a media release after execution of the Agreement announcing that Customer has become a Samespace customer, and to make other announcements and place promotion in various publications and media. Customer agrees that, not less than once per calendar quarter during the Term of this Agreement, to act as a reference customer as requested by Samespace. Except as set forth in a mutually agreed written public statement, Customer will not imply or state that Customer is affiliated with or endorsed by Samespace, publicize the existence of the Agreement, or disclose any of its terms.

12.2 Assignment. Neither party may assign its rights or obligations under the Agreement, either in whole or in part, except (1) with respect to a sale of substantially all of the assets of its business, merger, or change in the party’s ownership, or (2) with the prior written consent of the other party, which shall not be unreasonably withheld. Without limiting the preceding sentence, the rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.

12.3 Government Usage. This is a commercial item agreement. If the Services are acquired by or on behalf of the U.S. Government, a state or local government, or a prime contractor or subcontractor (of any tier) of the foregoing, such government customers and users shall obtain only those commercial license rights set forth in the Agreement.

12.4 Professional Services. Samespace will perform Professional Services on a time and materials basis unless otherwise stated in an SOW. Samespace shall control the manner by which the Professional Services are performed. Samespace reserves the right to make all staffing decisions in its sole and reasonable discretion. Customer shall make available at no charge all technical data, computer facilities, programs, files, documentation, test data, sample output, office space, equipment and other assistance as reasonably requested by Samespace in the performance of Professional Services. Samespace retains sole and exclusive ownership of all materials created in connection with its performance of the Professional Services, including but not limited to: methodologies, know-how, source and object code; specifications, configurations, designs, architecture, processes, techniques, concepts, discoveries, and, inventions made or developed (collectively, “PS Creations”), in addition to all Derivative Works of the foregoing. Unless otherwise set forth in the Statement of Work, Customer is hereby granted a license to use the PS Creations solely in connection with, and under the same provisions as, its use of the Samespace Services.

12.5 Survival: The provisions of the Agreement regarding payment, confidentiality, assignment, licenses, definitions, limitation of liability, intellectual property and any provision which by its nature should survive, will survive the termination of the Agreement. In the event that any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force.

12.6 Cumulative Remedies, Force Majeure and Injunctive Relief: All remedies available to Samespace will be cumulative and the specification of a remedy will not preclude Samespace from pursuing other remedies available at law, or in equity. Neither party will be responsible for acts of Force Majeure. Nothing in this Agreement will prevent Samespace from seeking immediate injunctive relief against Customer in the courts having jurisdiction over Customer.

12.7 Governing Law: This Agreement shall be governed by and construed in accordance with the California and United States federal law. All disputes arising between the parties as to the interpretation, operation, or effect of any clause in this Master Subscription Agreement or any other difference arising between the parties, which cannot be mutually resolved within 30 (Thirty) days of its having arisen, shall be referred to the sole arbitrator mutually appointed by both the parties. The parties agree that the sole arbitrator shall have the powers to pass interim orders, including any injunctive relief and decision of such arbitrator shall be binding on the parties. Arbitration proceedings shall be held/conducted as per the Arbitration and Conciliation Act, 1996 as amended, reframed, renumbered or substituted from time to time. Arbitration proceedings shall be held in California. Language of arbitration proceedings and award shall be English language. Courts located in California shall have exclusive jurisdiction over the matters of arbitration and any other matter arising out of the present Agreement. The parties agree that sole arbitrator shall have the powers to pass interim orders, including any injunctive relief and that parties shall be bound by the same. In any dispute under the Agreement, the prevailing party shall be entitled to recover its cost of enforcing its claim, including but not limited to attorney fees.

12.8 Authority to Execute: The party executing the Agreement on behalf of the parties represents and warrants that he or she has been duly authorized under the party’s charter documents and applicable law to do so.

12.9 Independent Contractors: The parties are acting as independent contractors. Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.

12.10 Third party beneficiaries: No third-party beneficiary relationships are created by this Agreement.

  • Notices: All notices under the Agreement shall be in writing and shall be deemed to have been given when (a) personally delivered; (b) sent by electronic facsimile transmission; or (c) sent by registered mail, postage prepaid (which notice shall be deemed to have been received on the third (3rd) business day following the date on which it is mailed) or (d) sent overnight by a commercial overnight courier that provides a receipt (which notice shall be deemed to be received on the next business day after mailing). Notices to either party shall be sent to the applicable address set forth in the preamble of the Agreement or such other address as a party may notify the other party of in writing.

    12.11 Waiver: No provision of the Agreement may be waived unless such waiver is in writing and signed by the party against which the waiver is to be effective.

    12.12 Complete Agreement; Amendment. The Agreement constitutes the complete agreement between the parties and supersedes all prior agreements and representations, written or oral, concerning the subject matter of the Agreement. In the event of a conflict between the terms of a Services Order and the other provisions of the Agreement, the terms of the Services Order shall take precedence; however, Sections 6, 8, 9, 10 and this section 12.13 of the Agreement may only be modified in the Services Order by a direct reference to such sections. The Agreement may not otherwise be modified or amended except in a writing signed by a duly authorized representative of each party. The terms of the Agreement shall supersede the terms in any Customer purchase order or other ordering document.

    12.13 Execution; Digitized Copies. The parties agree that this Agreement may be executed by any means of signature, including electronic commerce or transmission, including facsimile, email, or acknowledgement through a webpage. The Agreement may be executed in two (2) or more counterparts, each of which is deemed an original, but which together constitute one contract or document. Signed digitized copies of the Agreement and other associated documents, including attachments and amendments shall legally bind the parties to the same extent as original documents.

    12.14 Subcontracting. Samespace may subcontract certain portions of the Services under this Agreement to third parties, provided that Samespace shall be responsible for the performance of such subcontractors.

13. Definitions

Affiliate: A business entity that: (a) Controls the party; (b) is Controlled by the party; or (c) is under common Control with the party, but only during the time that such Control exists. For the purposes of this definition, “Control(led)” is the ability to determine the management policies of an entity through ownership of a majority of shares or by control of the board of management.

Confidential Information: Any information disclosed by one party to the other party, or otherwise learned by the recipient from the discloser, marked “confidential” or disclosed or learned under circumstances that would lead a reasonable person to conclude that the information was confidential. Notwithstanding the foregoing, Samespace Confidential Information includes but is not limited to the Services and the terms of this Agreement and Customer Confidential Information includes but is not limited to Customer Data. In addition, whether or not marked “confidential” or otherwise identifiable as confidential, the following information shall be deemed Confidential

Information of the discloser: inventions, product development plans, education materials, pricing, marketing plans, and customer lists.

Confidentiality Period: The longer of: (i) three (3) years after termination of the Agreement, or (ii) indefinitely with respect to trade secrets, Customer Data, and the Services.

Customer Data: (a) all data submitted through the Samespace Service by Customer or Users; and (b) the non-anonymized content of any reports generated by the Samespace Service regarding Customer’s use of the Samespace Service.

Derivative Work: A new or modified work that is based on or derived from all or any part of the Services, including without limitation, a revision, modification, translation, localization, adaptation, abridgment, port, condensation or expansion, in any form, of the Services, or any work that would infringe any copyright if created without the authorization of the copyright holder or any other intellectual property right in the Services or that uses trade secrets or other Confidential Information embodied in or used by the Services.

Effective Date: The effective date of the Agreement, which shall be the date both parties have signed the Agreement.

Exclusions: are conditions that are deemed excluded from, and that terminate, Samespace’ warranty, defense or indemnity obligations, as follows: (i) use of Samespace Service in combination with any non-Samespace equipment, software, services, processes, data or materials; (ii) Customer’s non-compliance with this Agreement or

Documentation; (iii) use of the Samespace Service after receipt of notice from Samespace to discontinue such use; (iv) the development or use of any alteration, derivation, modification or customization of the Samespace Service regardless of whether developed by Samespace, Customer, or any other person or entity and regardless of whether developed using any Samespace tools, methods or training; (v) Samespace’ compliance with Customer’s requests or instructions or the use of any materials provided by Customer; (vi) Customer’s business method(s) or process(es); (vii) Customer content or Customer Data.

Feedback: any suggestions, enhancement requests, recommendations, report, feedback, proposals, anonymized statistical data or other information concerning the Samespace Service provided by Customer to Samespace hereunder. Notwithstanding anything to contrary herein contained, in no event shall Feedback be deemed Customer Intellectual Property unless such Feedback existed on or before the Effective Date.

Force Majeure: Delays or failures on performance resulting from acts beyond the control of a party. Such acts include acts of God, provider blockades, denial of service attacks, strikes, lockouts, riots, acts of war, terrorism, epidemics, Laws effective after the Effective Date, fire, communication line failures, power failures, earthquakes or other disasters natural or man-made.

Samespace Service(s): The individual services and use of features and functionality of Samespace proprietary software and supporting facilities, all as further described in this Agreement and the Documentation, that are ordered by Customer by a Services Order. The term “Samespace Service” excludes Professional Services, Support and the use of Third-Party Applications.

Indemnify (and all forms of the word (e. g. Indemnification): Agreement to indemnify, hold harmless, and defend the other party and its Related Parties and from and against any and all third-party claims, demands, sums of money, actions, rights, causes of action, obligations, allegations and liabilities of any kind or nature whatsoever, and from any resulting liabilities, damages, losses, and costs (including, but not limited to, attorney fees and disbursements) arising from or relating, directly or indirectly, to the use, act, omission, or manner set forth as the subject of and giving rise to the claim.

Initial Subscription Term: The minimum term for the initial Subscription under each Services Order.

Intellectual Property Rights: Any and all technology, know-how, software, data, ideas, formulae, processes, charts, Confidential Information, and any other materials or information and any and all worldwide intellectual property rights (present and future) therein and thereto, including copyrights, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.

Law(s): Laws, statutes, regulations, directives, rules, standards and the like of any territorial division (e. g. federal, national, state, province, etc.).

Malicious Code: Viruses, worms, time bombs, corrupted files, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, or any other similar code that may interrupt, limit, damage the operation of Samespace’ or another’s computer or property. Professional Services (or PS): The professional services described in a Statement of Work executed by the parties.

Recordings: Recorded inbound or outbound Samespace VoIP Service transmission, performed by Customer, via the Samespace Service. Related Parties: A party’s past, present and future officers, directors, employees, and other personnel, agents, insurers, reinsurers, servants, attorneys, parent company, subsidiaries and affiliates.

Renewal Term(s): Each subsequent term of a Services Order after the Initial Subscription Term.

Security Features: The features and functionality associated with the Samespace Service used to help secure transmitted data. Security Features may include secure SIP/RTP, voice connection encryption, log masking, or other similar features. Sensitive Information: All sensitive Customer Data, including but not limited to personal health information (PHI), personally-identifiable information (PII) and credit card information.

Services: The Samespace Service, Professional Services, Support and all related services provided under the Agreement. Service Level Agreement: Samespace’ agreement to perform the Samespace Services in accordance with specific metrics, subject to a defined set of remedies as set forth in Sections 12 and 13 of the Supplemental Terms of this Agreement.

Services Order(s): The document by which Customer orders Samespace Services, or other goods and services that Customer may purchase from Samespace pursuant to this Agreement. Services Order shall include: (a) a description of items being ordered, including Subscription Term, and the quantity, (b) Fees, method of determining Fees, and pricing terms, (c) billing address; and (d) other addresses for the parties, if applicable. Samespace reserves the right to waive any or all of the aforementioned requirements either in writing or by fulfilment of the Order.

Subscription: Term-based grant, for a specified time to use a specific quantity and type of Samespace Service, all as described in the applicable Services Order. Subscriptions exclude services and expenses associated with decommissioning Customer’s use of the Samespace Service, migration of Customer Data, and storage and retrieval of records associated with Customer’s use of the Services.

Channels: The number of concurrent sessions that Samespace can handle is governed by the number of channels subscribed by the customer. By default, every customer gets free channels that are twice the no. of user licenses subscribed. Every additional channel is billed per month as per the terms agreed on the service order.

Subscription Term: The Initial Subscription Term and all Renewal Subscription Terms.

Support: the maintenance and support of the Samespace Service, subject to the terms and policies set forth in Exhibit A of this Agreement.

Support Level: The applicable level of Support as selected by Customer and elected under the Services Order.

Taxes and Regulatory Fees: Any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including regulatory fees (such as USF), fines, penalties, value-added, use or withholding taxes. Taxes and Regulatory Fees shall not include charges based upon Samespace’ income or employees.

Term: Any term (time period) under the Agreement (e. g. Subscription Term, License Term).

Third-Party Applications: Third party or Customer-developed online, Web-based applications and offline software products that are provided by Customer or third parties, that may or may not interoperate with the Samespace Service.