Software and Subscription Agreement

SUBSCRIPTION AND SERVICES AGREEMENT 

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Updated January 11th, 2024

This Subscription and Services Agreement (the “Agreement”) is made and entered into between BuyersRoad, Inc. d/b/a Experience.com (“Experience.com”, “we”, “our” or “us”) and the subscriber that has entered into and executed an order form (“Order Form”) with Experience.com (“Subscriber”, “you” or “your”). This Agreement shall govern the products and services provided by Experience.com to the Subscriber (such products and services are hereinafter collectively referred to as the “Products”) as described herein and in the applicable Order Form(s). 

SIGNING THE ORDER FORM INDICATES SUBSCRIBER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY AND ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS AND/OR AGREEMENTS THAT ARE AND/OR MAY BE ESTABLISHED BY EXPERIENCE.COM FROM TIME TO TIME AND INCORPORATED HEREIN BY REFERENCE. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE SUBSCRIBER’S LEGAL ENTITY, SUBSCRIBER REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF SUBSCRIBER DOES NOT AGREE WITH THIS AGREEMENT, SUBSCRIBER MUST NOT EXECUTE THE ORDER FORM AND ANY ACCESS AND/OR USE OF THE PRODUCTS IS UNAUTHORIZED. 

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 8.1, SUBSCRIBER AGREES THAT DISPUTES BETWEEN SUBSCRIBER AND EXPERIENCE.COM WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARBITRATION.

1. USE OF PRODUCTS

1.1 Access and Use; License Grant. Subject to the terms and conditions of this Agreement, including without limitation Subscriber’s payment of all applicable fees to Experience.com and execution by the parties of an Order Form further describing the applicable Product(s) and any terms and conditions related thereto, Experience.com hereby grants to Subscriber a limited, non-exclusive and non-transferable license to access and use the Products, for its internal business purposes, as of the effective date set forth on the Order Form (“Order Form Effective Date”) through the number of months set forth in Section 1.1 of such Order Form (the “Subscription Term”), for such number of Subscriber’s authorized users, locations and/or other agreed upon criteria as set forth in the Order Form or any change order mutually agreed upon by Subscriber and Experience.com in writing. Subscriber will purchase a minimum number of user licenses for the Subscription Term, as set forth on the initial Order Form (“Minimum Licenses”). Subscriber shall have no right to sub-license any of these rights to any third party.

1.2 Assistance and Support. During the Subscription Term, Experience.com may provide Subscriber with access to an Experience.com administrator for assistance and support. Subscriber shall designate an internal point of contact for coordination with the Experience.com administrator.  In addition, Experience.com may provide user guides, online help, release notes, training materials and/or other documentation to Subscriber regarding the use and/or operation of the Products (“Documentation”). Experience.com hereby grants to Subscriber a limited, non-exclusive, worldwide, non-transferable license for Subscriber to use the Documentation during the Subscription Term, for its internal purposes, to enable the full use and/or benefit of the Products. Subscriber is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (specifically including without limitation responsibility for providing appropriate personal computers and mobile devices) needed for Subscriber and its authorized users to access and/or use the Products. Subscriber shall ensure that its network and systems comply with the relevant specifications provided by Experience.com from time to time and shall provide Experience.com with such information as may be required by Experience.com in order to provide the Products.

1.3 Subscriber Responsibilities and Conduct. Subscriber represents and warrants that Subscriber and its officers, directors, employees, agents and subcontractors (and their employees) and any other individual authorized by Subscriber to use the Products (collectively, its “Representatives”) will also abide by the terms and conditions of this Agreement and any Order Form. Subscriber acknowledges and agrees that it shall be fully responsible for any Representatives’ use of the Products in breach of this Agreement and/or Order Form by such Representatives. Subscriber will determine the access controls for its users and will be liable for activity occurring under Subscriber’s account, including without limitation compliance with the terms and conditions of this Agreement and any Order Form. Subscriber agrees to: (i) use commercially reasonable efforts to prevent unauthorized access to, and/or use of the Products; (ii) maintain the accuracy and completeness of information provided to Experience.com and agrees to provide any changes to Experience.com within thirty (30) days after any such change, and (iii) notify Experience.com promptly of any unauthorized access to and/or use of the Products. Subscriber (and, where appropriate, its users and Representatives) shall: (a) comply with all applicable laws and regulations in its use of the Products, (b) act responsibly and to treat other users with respect, and shall not harass or abuse other users, and (c) be solely responsible for Subscriber’s interactions with any organizations and/or individuals that it communicates with through the Products.

1.4 Experience.com Reserved Rights.Experience.com may establish limits concerning use of the Products. Experience.com reserves the right at any time to modify or discontinue the Products (or any part thereof) with or without notice, and Experience.com shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Products. Experience.com in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Products (or any part thereof), immediately and without notice, and remove and discard any Content within the Products, for any reason, including, without limitation, if Experience.com believes that you have acted inconsistently with this Agreement. Experience.com shall not be liable to you or any third-party for any termination of your access to the Products, and you agree not to attempt to use the Products after the effective date of termination of this Agreement or Order Form, as applicable.

1.5 Prohibited Conduct. Except as expressly set forth herein, Subscriber and its Representatives may not: (i) use and/or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer any Products, any portion thereof, and/or any of Subscriber’s rights thereto, (ii) merge any Products or any portion thereof with any other program and/or materials, (iii) make the Products available to any person or entity other than authorized users, (iv) use and/or access the Products to provide service bureau and/or other computer hosting services to third parties, (v) modify and/or create derivative works based upon the Products and/or Documentation, (vi) remove, obliterate, modify and/or obscure any copyright, trademark and/or other proprietary notices and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by Experience.com hereunder; and/or fail to reproduce any such notice and/or legend on any copy made of any such materials, (vii) reverse engineer, decompile, disassemble, extract and/or otherwise derive and/or attempt to derive the source code of the Products and/or any other compiled software provided or made available by Experience.com, except and only to the extent such activity is expressly permitted by applicable law, (viii) adapt, translate, localize, port, and/or otherwise modify any Products and/or any other compiled software provided or made available by Experience.com hereunder, (ix) access the Products or use the Documentation in order to build a similar product or competitive product, (x) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the Products, Experience.com’s business operations and/or its other clients, (xi) gather email addresses through harvesting, (xii) crawl, scrape, cache, and/or otherwise access any content on the Products via automated means, and/or (xiii) permit any other person and/or entity to engage in any of the foregoing conduct.

1.6 Limitations. Subscriber shall not at any time knowingly make any false or misleading representation with regard to or in connection with its use of Products, or use Products to engage in illegal or deceptive trade practices or make any other use of Products that could expose Experience.com to any civil or criminal liability in any jurisdiction.

1.7 Illegal Use.  Subscriber shall not access, store, distribute and/or transmit any Viruses and/or any material during the course of its use of the Products that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing and/or offensive, (ii) facilitates illegal activity and/or (iii) causes damage and/or injury to any person and/or property. “Virus” shall mean any thing and/or device (including without limitation any software, code, file and/or program) which may prevent, impair and/or otherwise adversely affect the operation of any computer software, hardware and/or network, any telecommunications service, equipment and/or network and/or any other service and/or device, prevent, impair and/or otherwise adversely affect access to and/or the operation of any program and/or data, including the reliability of any program and/or data (whether by re-arranging, altering and/or erasing the program and/or data in whole or part or otherwise) and/or adversely affect the user experience, including without limitation worms, ‘Trojan’ horses, viruses and other similar things and/or devices. Notwithstanding anything herein to the contrary, Experience.com reserves the right, without liability to the Subscriber, to disable or suspend the Subscriber’s access to and/or use of the Products in the event (a) of any breach or anticipated breach of this Agreement and/or Order Form, (b) Subscriber and/or its users use of the Products disrupts and/or poses a security risk to the Products and/or any other client, may harm Experience.com’s systems and/or any provider of any third-party services and/or may subject Experience.com and/or any third-party to liability, (c) Subscriber and/or its authorized users are using the Products for fraudulent and/or illegal activities, and/or (d) Experience.com’s continued provision of any of the Products to the Subscriber and/or its users is prohibited by applicable law.

1.8 Restrictions. Subscriber (and, where appropriate, its users) shall: (i) not contact anyone who has asked not to be contacted, (ii) not delete or revise any material posted by any other user, (iii) not impersonate any person or entity or falsely state or misrepresent your affiliation with another person or entity, (iv) not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Product, and (v) not attempt to gain unauthorized access to Experience.com computer systems or networks to engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Products. Subscriber shall not post, email, or otherwise make available Subscriber Content that: (a) is unlawful, harassing, libelous, abusive, threatening, harmful, bigoted, racially offensive, obscene or otherwise objectionable, (b) advertises any illegal services or the sale of any items prohibited or restricted by applicable law, (c) is harmful to minors or displays sexually explicit material of any kind, (d) encourages conduct that could constitute a criminal offense, gives rise to civil liability or otherwise violates any applicable local, state, national or international law or regulation, (e) transmits or posts any unsolicited or unauthorized advertising, “spam,” junk mail, “chain letters,” or “pyramid schemes”, (f) transmits or posts any Subscriber Content that infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights, (g) transmits or posts any viruses or material designed to disrupt, limit or destroy any functionality of any computer software or hardware of users, or the Products, (h) collects, stores or solicits information about other users for commercial or unlawful purposes or engage in commercial activity such as contests, sweepstakes, etc. without Experience.com’s prior consent, (i) contains personally identifiable information about another user that is published without their express consent, (j) contains material originally posted by another user that is reposted without permission or attribution, (k) has misleading email addresses or other manipulated identifiers to disguise its origin, and/or (l) is purposefully posted in an irrelevant category or city, repeatedly post the same or similar Subscriber Content or otherwise impose an unreasonable or disproportionately large load on Experience.com’s infrastructure. Further, Subscriber shall not filter out, reject or refuse to post any content solely because such content is unfavorable to or critical of Subscriber including without limitation any third party content.

1.9 Third Party Services. Subscriber agrees that Experience.com may use third party service providers to host and/or provide the Products described herein (“Third Party Services”). Experience.com does not control, endorse, and/or adopt any Third Party Services, and the inclusion of any link to web pages and/or content does not imply affiliation, endorsement and/or adoption by Experience.com of any site and/or any information contained therein, and can make no guarantee as to its accuracy or completeness. Subscriber’s right to use such third party technology is governed by the terms and conditions of such third party technology specified by such third party and is not subject to the term and conditions of this Agreement and any Order Form. Subscriber acknowledges and agrees that the storage of Subscriber Content (as defined in Section 4.2 below) and the protection of such Subscriber Content will be in accordance with such third party’s safeguards for the protection of the security, confidentiality and integrity of Subscriber Content. Subscriber is responsible for properly configuring and using the Products and taking appropriate steps to maintain security, protection and backup of any Subscriber Content. Experience.com is not responsible for any unauthorized access to, alteration of, and/or the deletion, destruction, damage, loss and/or failure to store any of, Subscriber’s Content and/or other information that Subscriber and/or its users submits and/or uses in connection with the Product(s) (including as a result of Subscriber’s and/or its users’ errors, acts or omissions) outside of Experience.com’s control.

1.10 Ownership and Reserved Rights. Experience.com shall own all right, title, ownership of, and all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights (“IP”) and proprietary rights with respect to the Products, and any other, Documentation, materials, deliverables provided and/or made available to Subscriber by Experience.com hereunder. Except for the rights expressly granted to Subscriber in this Agreement, all such Products and other materials that are provided or made available, all data generated and/or created by Subscriber through operation of the Products and all work product that is developed under this Agreement, all modifications, improvements, upgrades, compilations, aggregated information, data and derivative works thereof, and all IP and proprietary rights pertaining thereto, are and shall remain the property of Experience.com and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Subscriber, Subscriber hereby assigns such ownership rights to Experience.com). “BuyersRoad, Inc.” and Experience.com or Experience.com logos, icons and other marks identifying Experience.com or Experience.com services or products are trademarks of Experience.com and may not be used without prior written permission. All rights not expressly granted in this Agreement are reserved to Experience.com. Notwithstanding anything herein to the contrary, Experience.com shall be the exclusive owner of all data generated in connection with the Products and hereby grants to Subscriber a non-exclusive, non-transferable, royalty free, limited license to use such data for its internal business purposes during the term of this Agreement. Experience.com shall have a royalty-free, worldwide, irrevocable, perpetual license to use perform, display, adapt, modify, create derivative works of, and otherwise incorporate into the Products any suggestions, enhancement requests, improvements, recommendation, feature requests and/or other feedback provided by Subscriber and/or its users, relating to the operation of the Products (collectively referred to herein as “Feedback”). Experience.com will treat Feedback as non-confidential and non-proprietary. Subscriber represents and warrants it has all rights necessary to submit the Feedback.

1.11 Professional Services. Subscriber may also purchase professional services from Experience.com as described in an Order Form.

2. SUBSCRIPTION TERM RENEWALS, FEES & PAYMENT

2.1 Subscription Term Renewals. After the initial Subscription Term, the term shall automatically renew for additional one (1) year periods, unless Subscriber notifies Experience.com of its intention not to renew at least ninety (90) days prior to expiration of the then-current term. In the event that the Products, Services, and/or quantities purchased will be modified in the renewal term, the parties shall execute an appropriate Order Form amendment or a new Order Form to reflect the changes. Upon renewal, subscription prices may be increased by Experience.com. 

2.2 Fees and Invoicing.Upon execution of the applicable Order Form, Experience.com will invoice Subscriber for set-up fees, professional services fees, and subscription fees as set forth in the Order Form(s). Except as otherwise specified in the Order Form: (a) the subscription fees are invoiced annually in advance, (b) payment obligations are non-cancelable and subscription fees and set-up fees are non-refundable, (c) authorized user quantities and/or transaction quantities purchased cannot decrease below the minimum quantity set forth in the Order Form, (d) authorized user quantities and/or transaction quantities shall be reconciled monthly, and quantities greater than that set forth in the Order Form will be invoiced in accordance with the subscription option set forth in the Order Form, with  charges prorated accordingly, (e) all payments shall be due and payable upon receipt of the invoice, and (f) Subscriber will reimburse Experience.com for its reasonable, pre-approved out-of-pocket expenses incurred in connection with the Products. For avoidance of doubt, an increase in the number of users in accordance with subsection (d) above will reset the Minimum Licenses going forward. All fees are stated in United States Dollars and must be paid in United States Dollars. All fees due and payable by Subscriber to Experience.com under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.

2.3 Payment Disputes. In the event of a payment dispute, Subscriber shall, within ten (10) days following the debit or charge, or receipt of the relevant invoice, deliver a written statement to Experience.com listing all disputed items and providing a reasonably detailed description of each disputed item. The parties shall seek to resolve all such disputes expeditiously and in good faith.

2.4 Late Fees; Suspension of Products for Non-Payment. If for any reason whatsoever, timely payment is not made, Experience.com may, in addition to other available remedies, (a) apply interest to the past due amount, calculated at a rate of 1.5% per month or the highest rate permitted by law, and/or (b) suspend your access to all, or parts, of the Products until such amounts are paid in full, and any resumption of service following such suspension shall be subject to a re-connection fee; provided that Experience.com provides Subscriber with ten (10) days’ notice prior to any suspension for Subscriber’s failure to pay fees due and owing hereunder and in the Order Form. In the event of two or more suspensions for non-payment, we reserve the right to terminate the Order Form and this Agreement without prior notice and without liability.

2.5 Taxes. Experience.com’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). Subscriber is responsible for paying all Taxes associated with your purchases hereunder. If Experience.com has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Subscriber will indemnify, defend and hold harmless Experience.com for all taxes imposed which may be attributable to the Products.

3. WARRANTIES AND DISCLAIMERS

3.1 Warranty. Each party hereby represents and warrants to the other that (a) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder, (b) such party will, at all times, comply with all applicable local, state, federal, and foreign law, and (c) the making of this Agreement does not violate any agreement existing between such party and any third party.

3.2 DISCLAIMER. EXPERIENCE.COM DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT THE USE OR OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, NOR DOES EXPERIENCE.COM, ITS LICENSORS OR SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR AS TO THE ACCURACY, TRUTHFULNESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. EXPERIENCE.COM EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON SUBSCRIBER’S USE OF THE PRODUCTS. YOU EXPRESSLY AGREE THAT USE OF THE PRODUCTS, INCLUDING CONTENT, IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF FILES, SOFTWARE, SERVICES AND/OR ANY GRAPHICS OR OTHER CONTENT. THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. EXPERIENCE.COM MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE PRODUCTS. EXPERIENCE.COM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

4. CONTENT

4.1 Content.  You understand that all listings, messages, text, files, images, photos, video, audio or other materials posted on, transmitted through, or linked from the Products are the sole responsibility of the person or organization from whom such content originated. You also understand that Experience.com does not control and is not responsible for content made available through the Products, and that by using the Products, you may be exposed to content that is offensive, indecent, inaccurate, misleading or otherwise objectionable. 

4.2 Subscriber Content. Subscriber may provide any elements of text, graphics, images, photos, designs, artwork, logos trademark, service marks, content, personally identifiable information, data and/or materials (collectively, the “Subscriber Content”) to Experience.com for use in connection with the Products. Subscriber is responsible for the accuracy, quality, integrity and legality of such Subscriber Content and of the means by which its users access and/or use the Subscriber Content. Subscriber hereby grants Experience.com a worldwide, non-exclusive right and license to reproduce, distribute, license, configure, perform, transmit and display the Subscriber Content as necessary to provide the Products. Subscriber represents and warrants that Subscriber owns all Subscriber Content or that Subscriber has permission from the rightful owner to use each of the elements of Subscriber Content; and that Subscriber has all rights necessary for Experience.com to use the Subscriber Content in connection with the Products. Subscriber and its licensors retain title, all ownership rights, and all IP, in and to the Subscriber Content and reserve all rights not expressly granted to Experience.com hereunder. You agree that Experience.com has no responsibility or liability for the deletion or failure to store any Subscriber Content maintained or transmitted through the Products. 

4.3 Links. The Products and content made available through the Products may contain links to other websites that are completely independent of Experience.com. Experience.com makes no representation or warranty as the accuracy, completeness or authenticity of the information contained therein. Under no circumstances will Experience.com be liable in any way for any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, linked or otherwise made available via the Products.

4.4 Uploading, Posting and Use. You understand and agree that any uploading or posting will be at your sole risk and Experience.com shall not be responsible to you in any way. Further, Experience.com does not provide any warranty as to your use of third-party content or software that you obtain from the Products.

5. CONFIDENTIALITY

5.1 Confidential Information. The parties agree that during the course of performance under this Agreement, each party may disclose or make accessible to the other party certain Confidential Information (defined below) of such disclosing party. “Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to research, products, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances of the disclosing party. Without limiting the generality of the foregoing, anything to the contrary herein notwithstanding, (i) the Confidential Information of Experience.com shall include the Products and all technical and business information, pricing, payment terms and documentation relating thereto, and (ii) the Confidential Information of Subscriber shall include all information regarding Subscriber’s authorized users, including email addresses of customers and employees provided by Subscriber to Experience.com for the purpose of providing the Products to Subscriber. Confidential Information does not include information, technical data or know-how which (a) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; (b) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party; (c) is approved for release by the disclosing party; or (d) or is independently developed by the receiving party without the use of any Confidential Information of the other party.

5.2 Non-Disclosure and Non-Use of Confidential Information. Each of the parties agrees not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except as necessary in the performance of its obligations under this Agreement. The receiving party will not disclose the Confidential Information of the other to third parties or to the receiving party’s officers, directors, employees, agents, subcontractors and affiliates (and their employees) (“Representatives”) except Representatives who are required to have the information in order to carry out the receiving party’s obligations hereunder. Each party has had or will have Representatives to whom Confidential Information of the other is disclosed sign a non-disclosure agreement no less protective of the Confidential Information of the other party than this Agreement. Each party agrees that it will use the same standard of care that it uses in protecting its own Confidential Information to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party and to prevent it from falling into the public domain or the possession of unauthorized persons, but in no case less than reasonable care. Each party agrees to notify the other in writing of any misuse or misappropriation of Confidential Information of the other that may come to its attention. Upon termination or expiration of this Agreement or upon the disclosing party’s written request, the receiving party will return to the disclosing party all copies of Confidential Information in the receiving party’s possession or within its control. Alternatively, with the disclosing party’s prior written consent, the receiving party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation, and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the receiving party will certify in writing to the disclosing party that all such Confidential Information has been so destroyed.

5.3 Legal Requirement. If the receiving party is requested or required to disclose any of the disclosing party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement“), the receiving party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the disclosing party so that the disclosing party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the disclosing party is not successful in obtaining a protective order or other appropriate remedy and the receiving party is legally compelled to disclose such Confidential Information, or if the disclosing party waives compliance with the provisions of this Agreement in writing, the receiving party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

5.4 Use of Subscriber’s Name. Subscriber acknowledges that Experience.com may desire to use Subscriber’s name in press releases, product brochures, Experience.com’s website and financial reports indicating that Subscriber is a customer of Experience.com, and Subscriber agrees that Experience.com may use its name and logo in such manner. Upon Experience.com’s request, Subscriber shall provide Experience.com with a quote from a Subscriber executive regarding the Products, which Experience.com may reasonably include in printed and electronic promotional materials and publications. Subscriber shall have right to review and approve in advance any use of its name or logo so long as said approval is not unreasonably delayed or denied. Subscriber may use Experience.com’s name in a similar manner upon similar approval.

5.5 Privacy Policy. Experience.com has a Privacy Policy, located at https://www.experience.com/privacy-policy, that explains to Subscribers, authorized users, and consumers how their information may be collected and used, and is incorporated herein by reference. Use of the Products by Subscriber and its authorized users signifies acknowledgement of and agreement to our Privacy Policy.

6. LIMITATION OF LIABILITY AND INDEMNIFICATION

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EXPERIENCE.COM BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT EXPERIENCE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EXPERIENCE.COM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY SUBSCRIBER FOR THE PRODUCT(S) GIVING RISE TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE PARTIES AGREE THAT THE PRECEDING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK. 

YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD EXPERIENCE.COM AND ITS REPRESENTATIVES HARMLESS FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO (A) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMIT IN CONNECTION WITH THE PRODUCTS, (B) ANY FRAUD, MANIPULATION OR OTHER BREACH OF THIS AGREEMENT BY YOU OR YOUR REPRESENTATIVES, AND/OR (C) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST EXPERIENCE.COM ARISING OUT OF YOUR USE OF THE PRODUCT.

7. TERM AND TERMINATION

7.1 Term. The term of this Agreement shall commence on the Order Form Effective Date and remain in effect through the term of the applicable Order Form, unless terminated earlier in accordance with the terms and conditions set forth herein or therein.

7.2 Termination for Cause. If either party materially breaches or defaults in any of the terms or conditions of this Agreement and/or any Order Form, including but not limited to the payment of any undisputed fees, then the non-breaching party may give written notice to the defaulting party that if the default is not cured within thirty (30) days, the Agreement and/or Order Form will be terminated. If the non-defaulting party gives such notice and the default is not cured during the thirty (30) day period, then the non-defaulting party may elect to terminate this Agreement and/or Order Form at the end of such cure period. Termination of this Agreement and/or Order Form will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, Order Form, at law and/or in equity.

7.3 Termination for Insolvency. Experience.com shall have the right to terminate this Agreement upon written notice to Subscriber (i) upon the institution by or against Subscriber of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Subscriber’s debts, (ii) upon Subscriber making an assignment for the benefit of creditors; or (iii) upon Subscriber’s dissolution or cessation of business.

7.4 Effect of Termination. In the event of termination of this Agreement pursuant to Section 7.2 or Section 7.3, Subscriber will immediately pay all fees, charges and expenses due and owing through the stated Subscription Term of the applicable Order Form.  Upon any termination of this Agreement, all usage rights and licenses granted hereunder shall terminate. The provisions regarding data and IP ownership, disclaimer of warranties, confidentiality, indemnification, limitations of liability, termination, and any payment obligations shall survive the expiration or termination of this Agreement for any reason and all other rights and obligations of the parties shall cease upon termination of this Agreement.

7.5 Transition Services. Upon expiration or termination of this Agreement (unless this Agreement is terminated for Subscriber’s uncured, material breach), and for a period not to exceed ninety (90) days, Subscriber may request that Experience.com cooperate with Subscriber in transitioning Subscriber’s Content, data and reports, to a new provider designated by Subscriber (the “Transition Services”). Such Transition Services will be provided at Experience.com’s then-current rates and shall be due and payable by Subscriber in advance. So long as Transition Services are being provided by Experience.com, Subscriber will continue to pay all subscription fees to Experience.com. All licenses granted hereunder shall continue during the pendency of the Transition Services and shall terminate upon completion of the transition to Subscriber or a new provider.

8. GENERAL

8.1 Dispute Resolution. EXCEPT FOR DISPUTES AND/OR CLAIMS RELATED TO EXPERIENCE.COM’S IP AND/OR CONFIDENTIAL INFORMATION, ANY OTHER DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT AND/OR ANY ORDER FORM, INCLUDING WITHOUT LIMITATION THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, WILL BE RESOLVED BY BINDING ARBITRATION. The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the demand for arbitration. The decision of the arbitrators, including determination of the amount of damages suffered, if any, shall be final and binding on all parties, their executors, administrators, successors and assigns and judgment with respect to such decision may be entered in any court of applicable jurisdiction. Each party shall bear its own expenses in the arbitration, for attorneys’ fees, and for fees with respect to its witnesses; provided that the prevailing party shall be entitled to receive from the non-prevailing party its reasonable costs and attorneys’ fees incurred in connection with any claim brought to enforce the provisions of this Agreement. The location of such arbitration shall be Wilmington, Delaware.

8.2 Governing Law and Jurisdiction. This Agreement is made in accordance with and will be governed and construed under the laws of the State of Delaware, without reference to such state’s conflicts of laws principles. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any action related to or arising from this Agreement related to Experience.com’s IP and/or Confidential Information shall take place exclusively in the courts situated in Wilmington, Delaware, and the parties consent to the personal and exclusive jurisdiction of these courts.

8.3 Compliance with Laws. Subscriber shall comply with all applicable local, state, national and foreign laws in connection with its use of the Products, including those laws related to data privacy, international communications, and the transmission of technical and/or personal data. Subscriber acknowledges that Experience.com exercises no control over the content of the information transmitted by Subscriber or its users through the Products. Subscriber shall not upload, post, reproduce and/or distribute any information, software and/or other material protected by copyright, privacy rights and/or any other IP right without first obtaining the permission of the owner of such rights.

8.4 Audit. Subscriber shall establish and maintain internal control systems for compliance with applicable laws, regulations, and the terms and conditions of this Agreement. Subscriber shall maintain clear, accurate and complete records regarding its performance under this Agreement. Experience.com and/or its authorized representatives may, on reasonable notice, perform audits or other due diligence reviews of Subscriber’s policies, procedures, compliance reports, facilities, systems, data and records relating to its performance under this Agreement. Subscriber shall promptly remediate any deficiencies identified during any audit.

8.5 Amendment. Each Order Form and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party. The exchange of a fully executed Order Form by fax, electronic and/or computer image shall be sufficient to bind the parties to the terms and conditions of such Order Form. Notwithstanding anything herein to the contrary, Experience.com may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Subscriber’s execution of a new or additional Order Form in which the new terms of this Agreement will be incorporated.

8.6 Assignment. Subscriber may not assign this Agreement, by operation or law or otherwise, without Experience.com’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.

8.7 No Waiver; Severability.  Experience.com’s failure to enforce Subscriber’s strict performance of any provision of this Agreement will not constitute a waiver of Experience.com’s right to subsequently enforce that provision, or any other provisions of this Agreement. No waiver of any provision hereof will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force and effect.

8.8 Remedies. Except as expressly provided herein, no remedies in this Agreement are exclusive of any other remedies but will be cumulative and shall include all remedies available hereunder or under any other written agreement or in law or equity.

8.9 Force Majeure. Experience.com shall not be held responsible for any delay or failure in performance here-under caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, internet outages, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond Experience.com’s control.

8.10 Independent Contractor. Subscriber and Experience.com are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales Subscriber or employment relationship between Subscriber and Experience.com.

8.11 Notices. Any notice required or given to you under this Agreement shall be delivered by electronic mail at the e-mail address provided by you or by posting such notice on the Products.

8.12 Conflict. Subscriber acknowledges and agrees it will abide by Experience.com terms of use located at https://www.experience.com/terms-of-use/ (“General Terms”), as may be amended from time to time by Experience.com in its sole and absolute discretion, the current versions of which are incorporated herein by reference. In the event of a conflict between the General Terms and this Agreement, the terms and conditions of this Agreement shall govern. Except as otherwise provided herein, if any terms and/or conditions of this Agreement conflict with any terms and/or conditions of any Order Form, the terms and conditions set forth in the Order Form will control solely with respect to the Products covered under such Order Form.

8.13 Recitals and Headings. The recitals are hereby incorporated into and made a part of this Agreement. The headings and titles of the Sections of this Agreement are not part of this Agreement but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.

8. 14 Entire Agreement. This Agreement, together with the Order Form(s), is the entire agreement between Subscriber and Experience.com with respect to the subject matter hereof and supersedes all previous oral and written communications by the parties, concerning the subject matter of the agreement between the parties.