THESE TERMS AND CONDITIONS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND ARBOLEDA ROAD LLC AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.

By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Arboleda Road that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Customer”, “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.

1. Definitions.

“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.

“Customer Data” means all electronic data and data files or information submitted to the Service by Customer or its Affiliates.

“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.

“Order Form” means a Arboleda Road pricing schedule, renewal notification or order form in the name of and executed by Customer or its Affiliate and accepted by Arboleda Road which specifies the Service and implementation services to be provided by Arboleda Road subject to the terms of this Agreement.

“Service” means, collectively, Arboleda Road’s Nitata online business application suite (the “Nitata Service”) and modules and any subsequent Order Form from time to time, including associated offline components, implementation services and other services provided by Arboleda Road, but excluding Third Party Applications.

“Third Party Applications” means online Web-based applications or services and offline software products that are provided by third parties and interoperate with the Service.

“Users” means individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by Arboleda Road at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.

2. Subscription Service. Subject to the terms and conditions of this Agreement and during the Term, Arboleda Road shall make its Service available to Customer solely for Customer’s and its Affiliates’ Users for internal business operations. The terms of this Agreement shall also apply to updates, and upgrades subsequently provided by Arboleda Road to Customer for the Service. Arboleda Road shall host the Service and may update the functionality, user interface, and other user related information such as self help type of information for users from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Service and customers’ use of the Service.

3. Order Form. The modules of the Service shall be ordered by Customer or its Affiliates pursuant to Order Form. The Order Form shall include a listing of the modules Customer will subscribe to use, a list of tasks for implementation and integration, and the fees associated with the implementation and integration and the annual subscription of the modules selected. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of this Agreement. For any order by Customer or its Affiliate for the benefit of Customer’s Affiliate(s), the term “Customer” shall refer to Customer and such Affiliate(s).

4. Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users' compliance with this Agreement. Customer’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. Customer shall not and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form unless expressly allowed by the Company; (b) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (c) use the Service in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (d) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.

5. License Term, Fee, Payment & Taxes.

5.1. Term of Agreement. The subscription to the Services shall be annual subscription with automatic renewal, unless otherwise specified on the Order Form or earlier terminated pursuant to Section 7.3.   Either party may provide written notice of non-renewal to the other party at least thirty (30) days before the renewal date.

5.2. Fees and Payment. Customer shall pay the fees as specified in the Order Form. If Arboleda Road provides professional services to Customer, the professional services shall be provided by Arboleda Road pursuant to an Arboleda Road Professional Services Addendum, which, if applicable, shall be fully incorporated herein by reference.

Additional modules procured during a term will co-terminate with and be prorated through the then current end date. Fees for the Service on all subsequent order forms and renewals shall be set at then current Arboleda Road pricing, unless otherwise agreed to by the parties.

5.3. Taxes. Arboleda Road fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Arboleda Road's net income. If Arboleda Road has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Arboleda Road with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4. Late Payments. Payments are due 30 days upon the receipt of invoice. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.

6. Proprietary Rights.

6.1. Ownership of Customer Data. As between Arboleda Road and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Arboleda Road as part of its standard Service offering may make daily backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with Arboleda Road standard business processes, which period shall not be less than one year.

6.2. Arboleda Road Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by Arboleda Road or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Arboleda Road shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, and its users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Arboleda Road. Arboleda Road and Nitata service marks, logos and product and service names are marks of Arboleda Road, respectively (the "Arboleda Road Marks"). Customer agrees not to display or use the Arboleda Road Marks in any manner without Arboleda Road’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.

7. Terms of Service. Customer agrees to the following terms of service.

7.1. Customer Must Have Internet Access. DSL, cable or another high speed Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, "browser" software that supports protocol used by Arboleda Road in its product Nitata, including Secure Socket Layer (SSL) protocol or other protocols accepted by Arboleda Road and its product Nitata, and to follow logon procedures for services that support such protocols. Arboleda Road is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Arboleda Road. Arboleda Road assumes no responsibility for the reliability or performance of any connections as described in this Section.

7.2. Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change.

7.3. Email and Notices. Customer agrees to accept email communications from Arboleda Road under this Section 7.3. Arboleda Road may provide any and all notices, statements, and other communications to Customer through either e-mail, posting on the Service (or other electronic transmission) or by mail or express delivery service. Arboleda Road recommends that the main and billing contact email addresses be group addresses (such as billing@customer.com) so that notices are reviewed promptly and not delayed due to the absence of one individual.

7.4. Users: Passwords, Access and Notification. User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Arboleda Road will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Arboleda Road of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.

7.5. Customer’s Lawful Conduct. The Service allows Customer to send Electronic Communications directly to Arboleda Road and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall store credit card and social security data only in the designated fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Arboleda Road in its Nitata product suite. Customer shall not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Arboleda Road. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer’s Affiliates. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Customer and Customer waives all of those defenses that Customer may have as to why Customer should not be liable for Customer’s contractors’, agents’ or Affiliates' acts, omissions and noncompliance with this Agreement.

7.6. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer expressly consents to Arboleda Road’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Arboleda Road. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Arboleda Road is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Arboleda Road, including, but not limited to, the Internet and Customer’s local network.

7.7. Arboleda Road’s Support. As part of the Service, Arboleda Road will provide assistance to Customer in its use of the Service. Users with questions relating to how to use the Service will submit questions via email designated by Arboleda Road. Requests for new features are not included in the scope of Arboleda Road’s support services. Arboleda Road support services include answering user questions on how various features work, and the bug fix for existing features.

7.8. Service Level. During the Term, the Arboleda Road Service along with its Nitata product suite will make commercially reasonable effort to meet its Customer’s needs. If the applicable Service fails to achieve the desired and expected service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Service in. The respective Service’s system logs and other records shall be used for calculating any service level events.

7.9. Security. Arboleda Road shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data.

7.10. Modifications; Discontinuation of Service.

Arboleda Road may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Arboleda Road reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Arboleda Road shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 7.10.

8. Suspension/Termination.

8.1. Suspension for Delinquent Account. Arboleda Road reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service for any accounts (i) for which any payment is due but unpaid but only after Arboleda Road has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice, or (ii) for which Customer has not paid for the renewal term and has not notified Arboleda Road of its desire to renew the Service by the End Date of the then current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that Arboleda Road shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section 8.1.

8.2. Suspension for Ongoing Harm. Customer agrees that Arboleda Road may with reasonably contemporaneous telephonic notice to Customer suspend access to the Service if Arboleda Road reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to Arboleda Road or others. In the extraordinary event that Arboleda Road suspends access to the Service, Arboleda Road will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. Customer agrees that Arboleda Road shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section 8.2.

8.3. Termination for Cause/Expiration. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party.

Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then Arboleda Road shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Arboleda Road’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer under this Agreement for the terminated portion of the Term.

8.4. Handling of Customer Data Upon Termination. Customer agrees that following termination of Customer’s account and/or use of the Service, Arboleda Road may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be entitled to delete Customer’s account from Nitata’s “live” site. During this 90 day period and upon Customer’s request, Arboleda Road will grant Customer limited access to the Service for several days for the sole purpose of permitting Customer to retrieve Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to Arboleda Road. Customer further agrees that Arboleda Road shall not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Arboleda Road is in compliance with the terms of this Section 8.4.

9. Confidentiality.

For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate data regarding use of Arboleda Road’s products and services that does not contain any personally identifiable or Customer-specific information.

Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information, including but not limited to inputting credit card data and social security numbers only in the fields designated for such data in the Service) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.

10. Warranties.

10.1. Warranty of Functionality. Arboleda Road warrants that: (i) the Service will achieve in all material respects the functionality conveyed to the Customer during the discovery phase that are applicable to the Service procured by Customer, and (ii) such functionality of the Service will not be materially decreased during the Term. Customer’s sole and exclusive remedy for Arboleda Road’s breach of this warranty shall be that Arboleda Road shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality previously communicated and if Arboleda Road is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the Term. Arboleda Road shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to billing@nitata.com. The warranties set forth in this Section 9.1 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with its desired use cases, this Agreement and applicable law.

10.2. No Virus Warranty. Arboleda Road warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer.

10.3. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 10, ARBOLEDA ROAD DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 10 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ARBOLEDA ROAD. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 7.9, 10.1, and 10.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

11. Limitations of Liability.

11.1. Exclusion of Consequential Damages. CUSTOMER AGREES THAT THE CONSIDERATION WHICH ARBOLEDA ROAD IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY ARBOLEDA ROAD OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW), OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 11.2.

11.2. Limitations on Liability. Except with regard to amounts due under this Agreement, and a party’s breach of Section 9, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 9 of this Agreement, such maximum liability of either party shall be an amount equal to one (1) times the equivalent of 12 months of subscription fees applicable at the time of the event. Notwithstanding the previous sentence, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and that, were Arboleda Road to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.

11.3. Exceptions. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 12 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.

12. Indemnification.

12.1. Infringement. Arboleda Road shall, at its own expense and subject to the limitations set forth in this Section 12, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.

Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Arboleda Road notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by Arboleda Road, or (d) use of the Service in combination with any software, application or service made or provided other than by Arboleda Road.

If a Claim of infringement as set forth above is brought or threatened, Arboleda Road shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 12.1 state Arboleda Road’s entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

12.2. Disclosure of Customer Data. Arboleda Road shall, at its own expense and subject to the limitations set forth in this Section 12, defend Customer from and against any Claims that arise out of or result directly from Arboleda Road’s gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims.

When Arboleda Road is at fault but such fault does not rise to the level of gross negligence or willful misconduct, Arboleda Road shall, at its own expense and subject to the limitations set forth in this Section 12 and the amount of liability set forth in Section 11.2 applicable in the event of a breach of Section 9, defend Customer from and against any Claims, and shall hold Customer harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to Arboleda Road’s breach of Section 9 of this Agreement. Provided that Arboleda Road complies with this Section 12.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.

12.3. Customer’s Indemnity. Customer shall, at its own expense and subject to the limitations set forth in this Section 12, defend Arboleda Road from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than Arboleda Road Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 7.5 or 9 above and shall hold Arboleda Road harmless from and against liability for any Losses to the extent based upon such Claims.

12.4. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 12, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 12 are expressly conditioned upon the indemnified party’s compliance with this Section 12.4 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 12 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 12 shall survive termination of this Agreement for one year.

13. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.

14. General Provisions. This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except that Arboleda Road may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Arboleda Road reserves the right to name Customer as a user of the Service. This Agreement, including all exhibits and/or Order Forms, shall constitute the entire understanding between Customer and Arboleda Road and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Arboleda Road to object to such terms, provisions, or conditions. The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form. Arboleda Road hereby expressly agrees that upon execution of this Agreement such “Terms of Service for Arboleda Road Applications” shall be considered null and void and shall not apply in any manner to this Agreement. Customer acknowledges that other click through agreements shall apply if such optional services are subsequently ordered or activated by Customer. This Agreement shall be governed in accordance with the laws of the State of California and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA). Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in California, as permitted by law. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. Customer shall compensate Arboleda Road (including reimbursement of costs) for responding to any request from a third party for records relating to Customer or a User’s use of the Service. Such requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the User permitting the disclosure. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving Arboleda Road employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. Sections 5.2, 5.3, 5.4, 6, 8.4, 9, 10.3, 11, 12, 13 and 14 shall survive the termination or expiration of this Agreement. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.