Master Subscription Agreement

Master Subscription Agreement

(Electronically Accepted Version)

This Master Subscription Agreement (this “Agreement”) is by and between Studio Designer, LLC, a Delaware limited liability company (f/k/a DesignersAxis, LLC), with a principal business address of 1551 S Robertson Blvd, Los Angeles, CA 90035 (“SD”), and the Subscriber (as defined in the Order Form).  This Agreement together with each Order Form and SOW, if applicable, governs Subscriber’s use of and access to the Application, Services, Subscription, and such other services and products set forth on the Order Form and if applicable, an SOW for a specific Term. This Agreement is effective as of the date that the Subscriber executes or communicates acceptance by electronic means this Agreement, the Order Form, and if applicable SOW or, if earlier, when Subscriber uses or accesses the Application, Services, Subscription, and such other services and products (the “Effective Date”). Each Order Form or SOW is effective as of the date that the Subscriber executes or communicates acceptance by electronic means such Order Form or SOW or, if earlier, when Subscriber uses or accesses the Application, Services, Subscription, and such other services and products described in such Order Form or SOW. SD and Subscriber are collectively referred to as the “Parties” and individually as a “Party” in this Agreement.

Recitals. SD is the owner of certain proprietary software, and SD, either directly or indirectly, offers certain services, all of which are more specifically described on Subscriber’s Order Form and if applicable, an SOW. SD desires to provide Subscriber access and Subscriber desires access to the Application, Services, Subscription, and such other services and products set forth on the Order Form and if applicable, an SOW for a specific Term.

Now therefore, in consideration of the mutual covenants, terms, and conditions set forth below, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which consideration is hereby accepted and acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Definitions. In addition to terms defined elsewhere in this Agreement, for purposes of this Agreement, unless the context otherwise requires, the following defined terms shall have the meanings set out below:

1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means the direct or indirect power to direct or cause the direction of the management and policies of the subject entity, whether through the ownership of more than fifty percent (50%) of the voting rights of the subject entity, by contract, or otherwise.

1.2 “Application” means the then-current version (inclusive of any Updates, Upgrades or modifications thereto) of those computer program modules, accompanying graphical user interfaces, application and platform ordered by Subscriber pursuant to an Order Form and available solely though this Agreement and accessed by Subscriber via the SD Website. The term “Application” shall, as applicable to Subscriber, also refer to the level (or levels) of SD application and platform that Subscriber has ordered pursuant to an Order Form.

1.3 “Documentation” means SD’s standard and then-current, on-line training materials, user manuals, handbooks, guides and technical specification, and documentation for the Application, accessible by Users at the SD Website, as such Documentation may be updated from time to time by SD.

1.4 “Fees” shall mean collectively the Services Fees and Support Fees.

1.5 “Increase in CPI” shall mean the unadjusted percentage increase, if any, in the Consumer Price Index for All Urban Consumers: U.S. City Average, All Items, 1982-1984 = 100 (“CPI-U”) for the month of the Effective Date when compared to the CPI-U for the Reference Month for the preceding calendar year, based upon the specific CPI-U data published by the United States Bureau of Labor Statistics (“BLS”) on its website located at https://www.bls.gov/cpi/ (or any BLS successor website).

1.6 “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, applications, or programs.

1.7 “Order Form” means the then current, applicable online or paper SD ordering document(s) for purchases of the Subscription, Services, and Support hereunder, including addenda thereto, that are signed by Subscriber and SD or are electronically transmitted or submitted by Subscriber to SD and thereafter agreed to by SD, from time to time and may include, among other things, the Subscriber name and contact information, Subscription, Services, Application, payment information, term, and such other terms and conditions. Each Order Form shall be deemed to be attached hereto and incorporated herein by this reference and shall be subject to and governed by the terms and conditions of this Agreement.

1.8 “Services” means those services, including Professional Services (as defined in Section 3), provided by SD to Subscriber in accordance with the terms and conditions of this Agreement that are ordered by Subscriber pursuant to an Order Form or a written quote or statement of work (collectively, “SOW”). Each SOW shall be deemed to be attached hereto and incorporated herein by this reference and shall be subject to and governed by the terms and conditions of this Agreement.

1.9 “Services Fees” means the fees Subscriber shall pay to SD for the Services and Subscription in accordance with this Agreement and any applicable Order Form or SOW.

1.10 “Subscriber” means the non-SD party designated as Subscriber on the Order Form who or which agrees to be bound by this Agreement, and its Affiliates; provided that Subscriber shall be fully responsible for the acts and omissions of any of its Affiliates.

1.11 “Subscriber Data” means all proprietary and confidential information and data concerning Subscriber entered into the Application by Subscriber in connection with the Subscription.

1.12 “Subscription” shall mean the paid subscription to the Application pursuant to Section 2.1 hereof via a SD Website and as more specifically described in the Documentation and Order Form.

1.13 “Support” means the training, consultation, and support provided by SD or its agents in connection with the Subscription and Use of the Application, that are provided pursuant to this Agreement and any applicable Order Form or SOW.

1.14 “Support Fees” means the fees Subscriber shall pay to SD for the Support in accordance with this Agreement and any applicable Order Form or SOW.

1.15 “SD Website” means http://www.studiodesigner.com or such other SD controlled website or websites as may be designated by SD from time to time.

1.16 “Term” means the term of this Agreement as described in Section 11.

1.17 “Terms of Use” shall mean the then-current version of SD’s terms of use, located at the following URL: https://www.studiodesigner.com/terms/.

1.18 “Third-Party Applications and Platforms” means on-line, Web-based applications, platforms, and on-line or off-line software products that are provided by third parties, and which may inter-operate with the Application.

1.19 “Updates” shall mean updates, patches, bug fixes, feature fixes and minor software enhancements and compatibility (but excluding Upgrades) of the Application that SD releases commercially and as determined by SD in its sole discretion.

1.20 “Upgrades” shall mean a new version of the Application that offers a significant change or major improvement over the current version of the Application and as determined by SD in its sole discretion.

1.21 “Use” means accessing the Application at the SD Website and recording, processing, compiling, manipulating, and displaying certain Subscriber Data which is entered into the Application by Users.

1.22 “Users” means individuals who are designated by Subscriber to Use the Application, for whom Services Fees have been paid by Subscriber with respect to their Use of the Application, and who have been supplied user identification numbers and passwords by Subscriber (or by SD at Subscriber’s request). Users may only include employees, consultants, contractors, and agents of Subscriber.

2. Subscription, restrictions, limitations, and service suspension.

2.1 Provision of Subscription. Subject to and conditioned on Subscriber’s timely payment of the Fees in accordance with Section 4 hereof and compliance with the terms and conditions of this Agreement, SD grants to Subscriber and its Users the restricted, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Application and Documentation in accordance with this Agreement, the Terms of Use and the Documentation for the Term solely for Subscriber’s internal business use. Unless otherwise specified in the applicable Order Form, (i) the Application may be accessed by no more than the specified number of named Users for whom Subscriber has subscribed and for whom Fees have been paid, (ii) additional subscriptions for additional named Users may be added at the then current SD pricing for Subscriptions, and (iii) each User subscription for the Application is for a specific designated and named individual and cannot be shared or used by more than one individual, but may be reassigned to new a User replacing a former User who no longer requires Use of the Application; provided however, such former User may not be added as a User for a period of twelve (12) months after such removal without Subscriber paying SD the then-current Fees for an additional named User Subscription. Subscriber agrees that its Subscription(s) for the Applications under this Agreement and any Order Form are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments by SD regarding functionality or features and SD may, in its sole discretion, discontinue any functionality or feature of the Application.

2.2 Reservation of Rights. SD reserves all rights not expressly granted to Subscriber in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any intellectual property rights or other right, title, or interest in or to the Application, Services, Subscription, and Documentation and, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “SD IP”). Subscriber acknowledges that all right, title, and interest in and to the SD IP, is, and at all times shall remain, the sole and exclusive property of SD.

2.3 Subscriber Responsibilities. Subscriber shall: (i) be responsible and liable for all uses of the Subscription, Application, Services, and Documentation resulting from access provided by Subscriber to any User or third party, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement; (ii) be responsible and liable for Users’ compliance with this Agreement; (iii) be solely responsible for the accuracy, quality, integrity, and legality of Subscriber Data and of the means by which it acquired or uses Subscriber Data; (iv) prevent unauthorized access to or Use of the Application, and immediately notify SD promptly of any such unauthorized access or Use; (v) Use the Application only in accordance with the Documentation and applicable laws and government regulations; (vi) be responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Subscriber, which will be deemed a breach of this Agreement by Subscriber; (vii) make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Subscription, Application, Services, or Documentation, and shall cause all such Users to comply with such provisions; and (viii) be solely responsible for gaining access to or Use of the Services, Subscription or Application, and SD shall bear no responsibility or liability for problems arising from or related to Subscriber’s access or Use. During the Term, Subscriber will deploy, at its sole expense, a reputable industry recognized, non-free-ware, anti-virus solution. Such anti-virus solution must automatically obtain daily virus definition updates and load such updates on all of Subscriber’s computer and other devices. SD reserves the right to audit, at any time, Subscriber’s computer and other devices to determine compliance with this Section 2.3. If Subscriber fails to adhere to this Section 2.3, SD may deny Subscriber’s access to or Use of SD’s system, the Application, and the Subscription for those devices that do not have anti-virus with active automatic updates until such time as Subscriber deploys an anti-virus solution pursuant to this Section 2.3

2.4 Subscriber Restrictions. Subscriber shall not use the Services, Application, Subscription, or the Documentation for any purposes beyond the scope of the access granted in this Agreement and shall only use the Services, Application, Subscription, or the Documentation in compliance with this Agreement and the Terms of Use. Subscriber shall not (a) make the Application and Documentation available to any third party other than Users; (b) Use the Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) store or transmit Malicious Code in or to the Application, and Subscriber shall ensure that Malicious Code is not inadvertently or unintentionally stored in or transmitted to the Application; (d) interfere with or disrupt the integrity or performance of the Application, Services, Subscription, or third-party data contained therein; or (e) attempt to gain unauthorized access to the Application, the Documentation, SD’s related systems or networks, or any Third-Party Applications or Platforms.

2.5 Limitations on Use. Subscriber shall not at any time, attempt, directly or indirectly, and shall not permit any third party to attempt to: (i) copy, modify, or create derivative works of the Services, Application, Subscription, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, Application, Subscription, or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software or proprietary component of the Services, Application, Subscription, or Documentation, in whole or in part; (iv) remove any proprietary notices from the Services, Application, Subscription, or Documentation; (v) use the Services, Application, Subscription, or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Services, Application, Subscription, or Documentation to develop a similar or competing product, software, or service; (vii) provide access to the Services, Application, Subscription, or Documentation to any person or third party in order to build or assist in building a competitive service or software to the Services, Application, Subscription, or Documentation or to benchmark with a non-SD service or software; (viii) use the Services, Application, Subscription, or Documentation on behalf of, or to provide any product or service to, third parties; (ix) use the Services, Application, Subscription, or Documentation to transmit or display any false, inaccurate, or unlawful information; (x) translate, adapt, vary, or modify the Application or Documentation, other than as necessary to customize reports as permitted by the Application; (xi) permit the Use of the Application other than by Subscriber’s Users; or (xii) violate the terms and conditions of this Agreement or any terms and conditions posted on the Services, Application, Subscription, or Documentation, including, without limitation, any Terms of Use (collectively, “Prohibited Conduct”).

2.6 Service Suspension. Notwithstanding anything to the contrary in this Agreement, SD may temporarily suspend Subscriber’s and any User’s access to any portion or all of the Services, Application, Subscription, Documentation, or Support if: (i) SD determines that (A) there is a threat or attack on any of the SD IP; (B) Subscriber’s or any User’s use of the SD IP disrupts or poses a security risk to the SD IP or to any other Subscriber or vendor of SD; (C) Subscriber, or any User, is using the SD IP for fraudulent or illegal activities or Prohibited Conduct; (D) Subscriber, or any User, is violating the terms of this Agreement, the Terms of Use or SD’s privacy policy located at https://www.studiodesigner.com/privacy-policy/; (E) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (F) SD’s provision of the Services, Application, Subscription, or Support to Subscriber or any User is prohibited by applicable law; (ii) any vendor of SD has suspended or terminated SD’s access to or use of any third-party services or products required to enable Subscriber to access the Services, Application, Subscription, or the Support; or (iii) in accordance with Section 4 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). SD shall use commercially reasonable efforts to provide written notice of any Service Suspension to Subscriber and to provide updates regarding resumption of access to the Services, Subscription, the Support, or the Application following any Service Suspension. SD shall use commercially reasonable efforts to resume providing access to the Services, Subscription, the Support, or the Application as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SD will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any User may incur as a result of a Service Suspension.

2.7 Subscriber Data. Subscriber shall be solely responsible for ensuring the accuracy of Subscriber Data input into the Application and shall be responsible for back-up of any such Subscriber Data.

3. Support and professional services.

3.1 Included Support. SD will provide each User at no additional cost, the following Support for the Application: (i) the then-current recorded, on line training sessions in the Use of the Application; and (ii) the then-current written, on line Documentation in .pdf format. In addition and subject to the terms and conditions of this Agreement, Subscriber shall have access from time to time to the service levels and support set forth at https://www.studiodesigner.com/terms/.

3.2 Additional Support. Personalized telephone and/or on line training and support for Use of the Application may be available on an as-needed basis for each User for the Support Fees as ordered by Subscriber pursuant to an Order Form or SOW. In addition, live training in the Use of the Application may be available on an as-needed basis for each User for the Support Fees as ordered by Subscriber pursuant to an Order Form or SOW. Support Fees for additional support and training will be at SD’s then-listed hourly rate plus expenses, unless otherwise agreed in the applicable Order Form or SOW.

3.3 Professional Services. Subject to the terms and conditions of this Agreement, SD shall provide any implementation, integration, consulting, or other professional services (“Professional Services”) to Subscriber as described on the Order Form or an SOW.

3.4 Contractors. SD may use contractors to perform all or part of the Services, Subscription, Professional Services, Support, or such other services.

3.5 Upgrades and Updates. During the Term and provided Subscriber is current on all of its Fees, SD will provide Subscriber with Updates without additional fees and will provide Upgrades, with or without additional fees, as determined by SD in its sole discretion. To the extent there are any fees associated with such Upgrade, the Parties will enter into a written amendment or applicable online ordering form setting forth the pricing and description of the applicable Upgrade. The Application may be updated automatically once a new Update or Upgrade is available. Updates and Upgrades will become part of the Application and will be subject to the provisions of Section 2 and the other provisions of this Agreement.

4. Fees and payment terms.

4.1 Fees. Subscriber shall pay all Fees as specified in all Order Forms or SOWs hereunder, without set off or deduction. Except as otherwise specified herein or in an Order Form or an SOW, (i) Fees are quoted and payable in United States dollars; (ii) Services Fees and Support Fees are based on the number of subscriptions for the Application purchased for Users and not actual usage; (iii) payment obligations for Support, Services, and Subscriptions ordered pursuant to Order Forms or SOWs are non-cancelable and all Fees paid are non-refundable; and (iv) additional Subscriptions for the Application for additional Users may be added at the then current SD pricing for the current Subscriptions. Unless otherwise set forth in the Order Form, Fees for Support and Subscriptions for Users are on an annual basis. After the initial twelve (12) months of the Term, the Services Fees and Support Fees shall increase for each subsequent 12 month period by the greater of (i) five percent (5%) and (ii) the Increase in CPI plus two percent (2%) to account for inflation, development enhancements, increased costs of doing business, and otherwise.

4.2 Invoicing and Payment. Except as otherwise specified herein or in an Order Form or SOW, Services Fees for the Application will be charged each month in advance on the first day of such month and shall be due and payable on such date, and all Services Fees shall be paid in accordance with the applicable payment authorization form: (i) by charge to Subscriber’s credit card or (ii) by ACH to the account designated by SD in writing. Subscriber agrees to provide authorization to SD to charge Subscriber’s credit card for Fees or for the ACH of such Fees. Support Fees will be paid in the same manner as described above for Services Fees or will be invoiced in advance and otherwise in accordance with the relevant Order Form or SOW. Unless otherwise stated in the Order Form or SOW, all Support Fees and any related costs are due net thirty (30) days from the invoice date. Subscriber is responsible for maintaining complete and accurate billing and contact information in the Application.

4.3 Overdue Charges. If any amounts invoiced hereunder are not received by SD by the due date, then at SD’s discretion, and without limiting SD’s other rights and remedies: (i) SD may charge interest on the past due amount at the rate of the lesser of (a) one and one-half percent (1.5%) per month, or (b) the highest amount permitted by applicable law, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due, from the date such payment was due until the date paid; (ii) Subscriber shall reimburse SD for all reasonable costs incurred by SD in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; (iii) if such failure continues for five (5) days beyond the due date, SD may suspend Subscriber’s and its Users’ access to any portion or all of the Application, Support, Services, or Subscription until such amounts are paid in full; and/or (iv) SD may condition future subscription renewals and Order Forms and SOWs on payment terms shorter than those specified in Section 4.2 above. Subject to applicable law, Subscriber also agrees to pay a late payment fee of the lesser of (a) ten dollars ($10), or (b) the highest amount permitted by applicable law for each denied charge transaction with respect to Subscriber’s payment by credit card.

4.4 Taxes. Unless otherwise stated, SD’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes assessable by any federal, state, provincial, local, or foreign jurisdiction (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with the Application and Support and its purchases hereunder. If SD has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 4.4, the appropriate amount shall be invoiced to and paid by Subscriber in accordance with Section 4.2 and the other applicable provisions of this Section 4, unless Subscriber provides SD with a valid tax exemption certificate authorized by the appropriate taxing authority prior to the payment of any applicable Taxes. For clarity, SD is solely responsible only for Taxes assessable against it based on SD’s income, property, and employees.

4.5 Travel Expense Recovery. Any pre-approved and reasonable travel and entertainment expenses incurred on behalf of this Agreement will be charged-back to Subscriber without markup and will be payable within thirty (30) days of a written invoice.

4.6 No Offset. Under no circumstances shall Subscriber withhold any sums due under this Agreement, whether by means of set-off or otherwise, nor shall it pay any sums due under this Agreement to any third party instead of SD, without the prior written consent of SD or as required by court order. Any sums so withheld or paid to a third party shall accrue interest under Section 4.3 until received by SD.

5. Proprietary rights.

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, SD reserves all rights, title, and interest in and to the Application, the Documentation, Services, the Support, and products and services thereof, including all SD IP. No rights are granted to Subscriber hereunder other than as expressly set forth herein.

5.2 Feedback. If Subscriber or any of its employees, consultants, agents, or contractors sends or transmits any communications or materials to SD by mail, email, telephone, or otherwise, suggesting or recommending changes to the SD IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), SD is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Subscriber hereby assigns to SD on Subscriber’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SD is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SD is not required to use any Feedback.

5.3 Ownership of Subscriber Data; Protection of Subscriber Data. As between SD and Subscriber, Subscriber exclusively owns all rights, title, and interest in and to all Subscriber Data. During the Term, SD may receive access to the Subscriber Data. Subscriber represents and warrants that it has complied with all applicable data protection laws and has and will obtain consents and all right, title, and interest in and to any Subscriber Data provided hereunder, which may be necessary for SD to process such Subscriber Data for the purposes set forth herein, including in connection with the analysis and monitoring of Subscriber’s and its Users’ use of the Application, Services, and the Subscription and in connection with the business and information security operations of Subscriber and SD. Subscriber is and will remain solely responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Subscriber Data by SD in accordance with this Agreement or under Subscriber’s control or within its possession. SD will maintain reasonable and appropriate security standards to protect the security and integrity of the Subscriber Data, and it will provide Subscriber reasonably requested documentation of these processes and any security reviews or audits made of SD’s systems, all of which documentation and information shall be deemed SD Confidential Information and none of which documentation and information will include documentation or information that could or would cause vulnerability to SD’s systems. SD and its authorized employees and contractors shall only process, access, and use Subscriber Data for purposes of providing the Services, Subscription, Application, and other associated services under this Agreement, including to detect security incidents or to protect against fraudulent or illegal activity and for the monitoring and improving SD’s internal operations to ensure that SD: (i) properly performs the Services and Subscriptions Subscriber has requested and (ii) administers Subscriber’s account in accordance with this Agreement. SD shall not collect, use, retain, disclose, sell (for monetary or other valuable consideration), or otherwise make such Subscriber Data available for SD’s own commercial purposes or any other purpose, except as otherwise set forth in this Agreement, including Section 5.4, unless otherwise necessary to comply with applicable law. SD shall use commercially reasonable efforts to promptly comply with any reasonable request from the Subscriber requiring SD to provide, amend, transfer, or delete the Subscriber Data and assist with Subscriber Data’s obligations to respond to individual’s exercising their privacy rights, each as required by applicable law.

5.4 Aggregated Data and Benchmarking. Notwithstanding anything to the contrary in this Agreement, SD may aggregate or deidentify Subscriber Data, create statistical reports, benchmarking and other data reports and solutions relating to the Application or the Subscription utilizing transaction data and usage data, so long as such reports and solutions contain only anonymous data that does not identify Subscriber or any specific transaction data (“Aggregate Data”), and such reports and Aggregated Data may be reported, delivered, and sold publicly to third parties or used for any lawful purpose. SD may, from time to time, offer benchmarking programs to facilitate deeper analysis into commercial trends for companies wishing to participate. If applicable, SD will use commercially reasonable efforts to operate benchmarking programs and data reports and solutions according to reasonable industry standards that protect the confidentiality of each Subscriber’s Confidential Information. SD shall further not attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data and will contractually so require downstream recipients of any such data (including such data contained in any reports or benchmarking programs described in this Section 5.4). All Aggregate Data and associated reports described in this Section 5.4 shall be SD’s Confidential Information.

6. Confidentiality.

6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Subscriber shall include Subscriber Data; Confidential Information of SD shall include the Application, the Documentation, SD IP, and the Support and products thereof; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information does not include information that is: (a) in the public domain other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement, (b) rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement at the time of disclosure, (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party that to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality, or (d) the Receiving Party can demonstrate by written or other contemporaneously-created documentary records was independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, contractors, directors, or other representatives, who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder (collectively, “Representatives”). Subscriber shall require all Representatives and Users to execute an agreement protecting the confidentiality of the SD Confidential Information and with license and use restrictions consistent with the confidentiality and terms of this Agreement and shall be responsible for the acts and omissions of any such Representatives.

6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to its Representatives, who have a need to know such Confidential Information.

6.3 Compelled Disclosure. Notwithstanding anything to the contrary in this Section 6, the Receiving Party may disclose Confidential Information of the Disclosing Party if the Receiving Party is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

6.4 Subscriber Data Migration. For a period of ninety (90) days after the termination of this Agreement, SD will use commercially reasonable efforts to make available to Subscriber all Subscriber Data contained in the Application. Notwithstanding the foregoing, SD may retain any copies of Subscriber Data, regardless of whether such copies are in original form (i) reasonably necessary in respect of any litigation arising out of this Agreement; (ii) as may be required to comply with any applicable federal, state, or local law, regulation, or regulatory authority to which SD is subject; (iii) that are maintained as archive copies on SD’s disaster recovery and/or information technology backup systems; (iv) as part of SD’s existing document retention policies, which may be updated from time to time; and (v) that are part of Aggregated Data and any reports, benchmarking and other data reports and solutions described in this Agreement, including Section 5.4.

7. Warranties and disclaimers.

7.1 Function Warranty. SD warrants that, for ninety (90) days from the Effective Date, the Application when accessed in accordance with the Documentation and the terms and conditions of this Agreement will perform materially as described in the Documentation. In the event of breach of the warranty in this Section 7.1, SD will either repair the Application or replace it with software of substantially similar functionality. The remedies set forth in this Section 7.1 are exclusive and Subscriber’s sole remedies and SD’s sole liability under the limited warranty set forth in this Section 7.1.

7.2 Mutual Warranty. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

7.3 Subscriber Warranties. Subscriber represents and warrants to SD that (i) Subscriber has full right, title, and interest in and to the Subscriber Data it supplies to SD or enters into the Application, (ii) the Subscriber Data supplied by Subscriber to SD hereunder or entered into the Application is accurate and complete; (iii) Subscriber and Subscriber’s use of the Application, Documentation, Subscription, and Services will comply with all applicable federal, state, county, and local laws, ordinances, orders, codes, rule, and regulations; (iv) Subscriber will use the Application, Documentation, Subscription, and Services strictly in accordance with the terms of this Agreement; (v) Subscriber will not engage in any Prohibited Conduct; (vi) no Subscriber Data will infringe the intellectual property rights or other rights of any third party; (vii) Subscriber has secured all necessary licenses and/or authorizations for SD to use the Subscriber Data pursuant to the terms of this Agreement; (viii) Subscriber holds, and will continue to hold, all necessary consents, licenses, permits, approvals, and/or authorizations required in order to perform any and all activities permitted under this Agreement; (ix) Subscriber shall inform all of Subscriber’s personnel (including, but not limited to, any agents of Subscriber and all Users) using the Application, Documentation, Subscription, and Services that the use of the Application, Documentation, Subscription, and Services is subject to the terms of this Agreement and the Terms of Use, and shall ensure compliance by such personnel (including, but not limited to, any agents of Subscriber and all Users) with the terms of this Agreement and the Terms of Use; (x) the performance by Subscriber of its obligations under this Agreement, will not violate any provision of any existing law or regulation or any order or decree of any court or the organizational documents of such Party, or constitute a material breach of any mortgage, indenture, contract, or other agreements to which Subscriber is a party or by which Subscriber is bound; and (xi) neither Subscriber nor its Users will transmit to SD any Malicious Code.

7.4 Warranty Disclaimer. Except for the above limited warranty, the entire risk of the quality and performance of the application and products of the support is with subscriber. Except for the express warranties specified in this section 7, SD IP (including, but not limited to, the services, support, additional services, documentation, application and subscription) is provided “as is” and SD and SD’s affiliates, subsidiaries, nominees and/or related parties, and any providers of information or services to SD disclaim all warranties, either express, implied statutory, or otherwise, including without limitation any implied warranties of merchantability or fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Except for the limited warranty set forth in section 7.1, SD makes no warranty of any kind that the SD IP (including, but not limited to, the services, support, additional services, documentation, application, and subscription), or any products or results of the use thereof, will meet subscriber’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, uninterrupted, or error free or that errors in the application or products of the support will be corrected. SD’s limited warranty is in lieu of all liabilities or obligations of SD for damages arising out of or in connection with the use or performance of the application, the services, or products of the support. The parties agree that the failure of the application to perform in accordance with the documentation or a decrease in the functionality of the application which cannot be remedied shall not be considered a failure of the essential purpose of the remedies contained herein.

7.5 Exclusions. SD provides no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Application, Support, Subscription, Documentation, or the Services made by anyone other than SD, unless SD approves such modification in writing; or, (ii) use of the Application, Support, Subscription, Documentation, or the Services in combination with hardware, software, or other technology not provided by SD: (A) that is forbidden by the Documentation; or (B) that is not designated in the Documentation as available for interface with the Application, Support, Subscription, or the Services, unless such hardware or software is a host computer, operating system, or other type of hardware or software necessary for the Application, Support, Subscription, or the Services to perform a function listed in the Documentation.

8. Indemnification.

8.1 Indemnification by Subscriber. Subscriber shall, at its sole cost and expense, indemnify, hold harmless, and, at SD’s option, defend SD and the SD Affiliates, their respective officers, directors, members, managers, employees, attorneys, independent contractors, equity owners, affiliates, representatives and successors and assigns (collectively, “SD Indemnitees”), from and against any liability, losses, damages, costs, and expenses (including reasonable attorney’s and accountant’s fees and costs and expenses reasonably incurred in investigating, preparing, defending against, or prosecuting any litigation or claim, action, suit, proceeding, or demand), incurred or awarded against the SD Indemnitees in connection with or resulting from any and all claims, complaints, actions, legal proceedings, suits, arbitrations, or proceedings brought by any third parties, including but not limited to claims: (i) alleging that the Subscriber Data, or Subscriber’s or any User’s Use of the Application in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; (ii) alleging that Subscriber’s or any User’s Use of the Application in violation of this Agreement causes SD to be in breach of any agreement relating to any Third-Party Application or Platform; (iii) based upon any Subscriber product or service, or on any resale or provision of the Application, the Support, or any products of the Support by Subscriber to such third party; (iv) based upon a representation made by Subscriber to such third party; (v) based upon a breach by Subscriber or Users of this Agreement; (vi) alleging infringement of any copyright or patent or other intellectual property right of a third party, arising out of the use of the Application by Subscriber in any manner prohibited by or not contemplated by this Agreement; (vii) related to or arising out of a financial transaction brought by any third party based on the use of the Application; (viii) alleging negligence or misconduct; (ix) based upon the use of the Application or Subscription in a manner not authorized by this Agreement; (x) use of the Application or Subscription in combination with data, software, hardware, equipment or technology not provided by SD or authorized by SD in writing; or (xi) modifications to the Application or Subscription not made by SD.

8.2 Indemnification Procedures. SD shall notify Subscriber in writing of any third party Claim for which SD believes it is entitled to be indemnified pursuant to Section 8.1. SD shall use commercially reasonable efforts to cooperate with Subscriber at Subscriber’s sole cost and expense. Subscriber shall promptly assume control of the defense and investigation of such third party Claim and shall employ counsel of its choice that is acceptable to SD to handle and defend the same, at Subscriber’s sole cost and expense. SD may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Subscriber shall not settle any third party Claim on any terms or in any manner that adversely affects the rights of any SD Indemnitees without the SD’s prior written consent. If Subscriber fails or refuses to assume control of the defense of such third party Claim, SD shall have the right, but no obligation, to defend against such third party Claim, including settling such third party Claim after giving notice to Subscriber, in each case in such manner and on such terms as the SD may deem appropriate. SD’s failure to perform any obligations under this Section 8.2 will not relieve Subscriber of its obligations under this Section 8, except to the extent that Subscriber can demonstrate that it has been materially prejudiced as a result of such failure.

9. Limitation of liability. SD shall have no liability to subscriber or any other person for losses caused by or resulting from the use of the application, the documentation, the support, or any products of the support, or with respect to SD’s obligations under this agreement or otherwise for (a) lost profits or revenues; (b) any consequential, exemplary, special, incidental, indirect, or punitive damages; (c) increased costs, diminution in value or lost business, production, revenues, or profits; (d) loss of goodwill or reputation; (e) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (f) cost of replacement goods or services, in each case however caused, whether in contract, tort, or under any other theory. In no event will SD’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the lesser of (i) the amount paid to SD by subscriber under this agreement during the previous twelve (12) month period preceding the event giving rise to the claim, or (ii) $1,000. The limitations provided herein apply to all causes of action in the aggregate, including, without limitation, to breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and other torts. Both parties understand and agree that the remedies and limitations herein allocate the risks of product and service nonconformity between the parties as authorized by the uniform commercial code and of other applicable laws. The fees herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential damages set forth in this agreement. This limitation of liability shall apply even in the event the limited warranty provided in section 7 fails of its essential purpose. The foregoing shall not limit subscriber’s payment obligations under section 4.

10. Third-party applications and platforms

10.1 Subscriber or its Users may use the Services, Subscription or Application to access or use Third Party Applications and Platforms. Access to Third Party Applications and Platforms is provided by SD solely for purposes of Subscriber’s convenience, and Subscriber shall use such Third Party Applications and Platforms pursuant to an agreement between Customer and Third Party Applications and Platforms, as determined by Customer and the provider of Third Party Applications and Platforms (the “Third Party Applications and Platforms Provider”). If Subscriber chooses to use a Third Party Application and Platform, Subscriber grants SD permission to allow the Third Party Applications and Platforms Provider to access Subscriber Data as required for the interoperation of any such Third Party Applications and Platforms with the Application, the Subscription and Services. Further, as a condition to accessing Third Party Applications and Platforms through the Application, the Subscription and using the services of such Third Party Applications and Platforms, Subscriber hereby agrees and acknowledges, that (a) access to Third Party Applications and Platforms is integrated into the Application, Subscription and/or Services, (b) Subscriber is using the Third Party Applications and Platforms at Subscriber’s own risk and discretion, (c) Subscriber is not obligated to use Third Party Applications and Platforms, and (d) SD shall not bear any responsibility for any aspect of the Third Party Applications and Platforms and Subscriber shall look solely to Third Party Applications and Platforms Provider therefor.

10.2 SD does not guarantee or warrant the continued availability of any Application, Subscription or Services features designed to interoperate with the Third Party Applications and Platforms. SD may cease providing such features without entitling Subscriber to any refund, credit, or other compensation, if for example and without limitation, the Third Party Applications and Platforms Provider ceases to make the Third Party Applications and Platforms available for interoperation with the Application, Subscription or Services in a manner acceptable to SD. Further, the third party applications and platforms, features to support such third party applications and platforms and the interoperation with the application, subscription or services are provided “as-is,” “where is” and as available. To the extent permitted by law, SD, as it relates to the third party applications and platforms, features to support such third party applications and platforms and the interoperation with application, subscription and services, expressly disclaims any warranties and conditions of any kind, whether express or implied, including but not limited to, the terms, warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Any acquisition by subscriber of third party applications and platforms, and any exchange of data between subscriber and any third party applications and platforms provider, is solely between subscriber and the third party applications and platforms provider. If subscriber or any authorized user obtains third party applications and platforms, whether or not introduced or recommended by SD, subscriber, on behalf of itself and its affiliates, agrees to look only to such third party applications and platforms provider for any claim relating to such third party applications and platforms or the interoperation of such third party applications and platforms with the application, subscription, and services. Without limiting the preceding sentence, SD is not responsible for any disclosure, modification or deletion of subscriber data resulting from access by such third party applications and platforms or its provider or any associated liabilities, claims, or damages. Subscriber shall comply with the terms of service of any third party applications and platforms, and SD shall be entitled to rely as a third party beneficiary on any limitations on liability contractually imposed by a third party applications and platforms provider relating to customer or its affiliates.

11. Term and termination.

11.1 Term of Agreement. Unless otherwise set forth in the Order Form or otherwise terminated earlier pursuant to this Agreement’s express provisions, this Agreement will remain in effect for thirty six (36) months from the Effective Date (“Initial Term”) and shall automatically renew for successive twelve (12) month periods (“Renewal Term”) upon SD’s prevailing terms and conditions unless either Party provides written notice of non-renewal to the other Party at least ninety (90) days prior to the expiration of the then-current term. The Initial Term and any Renewal Term shall be referred to herein as “Term”.

11.2 Termination. Either Party may terminate this Agreement (i) effective on written notice if the other Party materially breach this Agreement, and such breach (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach (except that breaching Party shall have five (5) days from receipt of notice of the breach to cure a monetary default); or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary contained herein, SD may terminate this Agreement for convenience and without liability upon sixty (60) days prior written notice to Subscriber.

11.3 Subscriber Data. After the effective date of termination of this Agreement, SD shall have no obligation to maintain or provide any Subscriber Data.

11.4 Effects of Termination. Upon termination of this Agreement, access to the Services, Application, Documentation, and Subscription will terminate and Subscriber will cease all use of the Services, Subscription, and Application and destroy and certify destruction of all Documentation and other SD Confidential Information. Upon any termination by either Party under Section 11, there will be no refund for any Fees paid hereunder, including but not limited to any prepaid Fees for the Subscription, Services, or Support and Subscriber shall be obligated to pay all Fees owed through the effective date of any termination.

11.5 Survival. The following sections shall survive any termination or expiration of this Agreement: Section 1 (Definitions), Section 4 (Fees and Payment Terms), Section 5 (Proprietary Rights), Section 6 (Confidentiality), Section 7 (Warranties and Disclaimers), Section 8 (Mutual Indemnification), Section 9 (Limitation of Liability), Section 10 (Third Party Applications and Platforms), Section 11.3 (Subscriber Data), Section 11.4 (Effect of Termination), Section 11.5 (Surviving Provisions), Section 12 (Export Compliance), and Section 13 (Miscellaneous).

12. Export compliance. The Parties acknowledge that the Application, and other products and information provided under this Agreement are subject to United States export laws and regulations and that any use or transfer of any such thing must be authorized under those laws and regulations. Subscriber agrees that it will not distribute, transfer, or transmit products or information provided under this Agreement to any other person in violation of U.S. export regulations. If requested by SD, Subscriber agrees to execute written assurances and other export-related documents as may be required by SD to comply with U.S. export regulations. Each Party shall comply with the export laws and regulations of the U.S. and other applicable jurisdictions in providing and using the Application. Without limiting the foregoing, (i) each of SD and Subscriber represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Users to access or use the Application in violation of any U.S. export embargo, prohibition, or restriction.

13. Miscellaneous.

13.1 Compliance with Law and Ethical Brand Representation Standards. Each Party will comply with all applicable laws and regulations relating to the performance of its obligations under this Agreement. Subscriber shall comply with all applicable laws and regulations in marketing any product or service that incorporates any Support or products thereof and shall not engage in any deceptive, misleading, illegal, or unethical marketing activities, or activities that otherwise may be detrimental to SD or its brands. Subscriber shall comply in all respects with all applicable laws in its activities under this Agreement, including without limitation all laws and regulations restricting or prohibiting trade with certain individuals and/or countries, and the U.S. Federal Corrupt Practices Act (collectively, the “Laws”) and shall promptly inform SD in writing upon becoming aware of any violations of the Laws in connection with this Agreement. Without limiting the foregoing, Subscriber warrants that it has not offered or paid, and will not offer or pay, any money or anything else of value, to any person for the purpose of securing any improper advantage in violation of the U.S. Federal Corrupt Practices Act or other applicable law.

13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

13.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.4 Assignment. Subscriber shall not assign or transfer this Agreement or any Order Forms or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of SD. SD may assign or transfer this Agreement (including any or all Order Forms) in its entirety, in part, or any of its rights or obligations hereunder, whether by operation of law or otherwise, to any Affiliate or to any third party, without consent of Subscriber, including to a third party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. In the event SD consents to an assignment under Section 13.4, Subscriber shall remain fully responsible and liable pursuant to this Agreement until such assignment has taken effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.5 Insurance. Subscriber, at its sole cost and expense, shall purchase and carry appropriate levels of insurance coverage that are prudent and customary in the businesses in which Subscriber is engaged and maintain it in full force and effect during the term of this Agreement for the benefit of both Subscriber and SD. Such policies may not be canceled without providing SD with at least thirty (30) days’ prior notice of cancellation.

13.6 Solicitation. Subscriber shall not solicit for employment or hire any SD personnel, directros, offiers, employees, or contractors, who has been directly involved in the development, sale, installation, or support of the Application for a period of twelve (12) months from the termination of such individual’s employment or agreement at SD.

13.7 Attorneys’ Fees. Subscriber shall be responsible for SD’s reasonable attorneys’ fees associated with the enforcement of the terms of this Agreement or the collection of any amounts due under this Agreement.

13.8 Force Majeure. Neither Party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its reasonable control including without limitation, industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems (other than those involving such party’s employees), Internet service provider failures or delays, failure, or unavailability of any Third-Party Applications and Platforms, or any other cause beyond its reasonable control; provided, however, that this provision shall have no application with respect to the payment of Fees and other amounts under this Agreement or any Order Form.

13.9 Titles. The section headings used in this Agreement are for convenience of reference only and shall not affect the meaning of the terms and provisions of this Agreement.

13.10 Construction. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any Party. No presumptions or rules of interpretation based upon the identity of the Party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked.

13.11 Interpretation of Certain Terms. Any words herein used in the singular shall denote the plural as the context so requires and, when used herein in the plural, shall denote the singular as the context so requires. Pronouns used herein, whether masculine, feminine, or neuter, shall be interpreted as the context so requires. The word “including” shall mean “including without limitation.” Any reference to any federal, state, or local law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.

13.12 Modification and Amendments. This Agreement, including the Order Form(s) attached hereto and incorporated herein, may only be amended by writing executed (or, in the case of an e-mail, delivered) by the Parties hereto. Notwithstanding the aforementioned requirement, the Parties agree that the Order Form(s) or SOW(s) attached hereto can be amended by e-mail transmission and acknowledgment by both parties of requests for amendments for the limited purposes of (a) adding or removing the Services, Support, or Users and/or (b) modifying the Fees. Notwithstanding anything to the contrary contained herein, SD reserves the right, in its sole discretion to make any changes to the Agreement, Documentation, Service, Subscription, Application, Support, or other associated services that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of the Services, Subscription Application, or Support to its customers, (ii) the competitive strength of or market for the Application, Support, or Services, or (iii) the Application, Support, or Services cost efficiency or performance; or (b) to comply with applicable laws or regulations. Notwithstanding anything to the contrary contained herein, SD may modify or amend this Agreement at any time and will post access to details of any modifications or amendments to this Agreement on https://www.studiodesigner.com/terms/. Changes will not apply retroactively and generally will become effective thirty (30) days after they are posted. However, changes addressing new functions for a product or service or made for legal reasons will be effective immediately. If you don’t agree to any modified or amended terms in the Agreement, you must stop using the Services, Application, Support, and Subscription. Your continued use of the Services, Application, Support, or Subscription after the effective date of any changes constitutes your agreement to follow and be bound by such changes.

13.13 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing signed by the Party against whom waiver is sought to be effective. Any failure or delay to demand strict performance of one (1) or more of the terms, covenants, or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and any Party may at any time demand strict and complete performance of said terms, covenants, and conditions, and such failure or delay will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action.

13.14 Counterparts; Electronic Execution of Agreement. This Agreement, any Order Form, and any SOW may be executed in counterparts (including .pdf signatures and electronic signatures), each of which shall be deemed to be an original. This Agreement, any Order Form, and any SOW may also be entered into by electronic means. Subscriber may communicate its acceptance of this Agreement, any Order Form, and any SOW by any electronic means which indicates to SD that Subscriber desires to enter into this Agreement, any Order Form, any SOW, and/or obtain the Subscription, Services and/or Support, including, but not limited to, by (i) email; (ii) clicking on an agreement or consent button, box, or icon on the SD Website designed to solicit acceptance of this Agreement; or (iii) completing an electronic Order Form or SOW on the SD Website or received via email and submitting it to SD. SD may likewise indicate its consent to this Agreement, any Order Form, and any SOW and may also indicate its consent to this Agreement, any Order Form, and any SOW by providing access to the Subscription, Services, Application and/or Support to Subscriber following acceptance of this Agreement, any Order Form, and any SOW by Subscriber.

13.15 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.16 Applicable Law and Jurisdiction. This Agreement shall be construed, interpreted, and governed in accordance with the laws of the State of California, excluding any conflict of law rules (whether of the State of California or any other jurisdiction) which may direct the application of the laws of another jurisdiction, or the United Nations Convention on the International Sale of Goods. The Parties hereby consent to the jurisdiction of the courts of the State of California located in Los Angeles, California or the United States District Court for the Central District of California, located in Los Angeles, California, and agree that such courts shall have exclusive jurisdiction and venue for the purpose of any action or proceeding brought by either of them which relates to or is in connection with this Agreement. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

13.17 Public Announcement and Use of Customer Name and Logos. Upon execution of this Agreement and at the request of SD, the Parties agree to develop and issue a mutually agreeable press release announcing this transaction. SD may also use Subscriber’s name and logos in its marketing and advertising materials, including, but not limited to, on its website and in its investor decks.

13.18 Notices. Except as otherwise provided herein, any notice required or permitted to be given hereunder shall be hand delivered; sent by prepaid certified mail, return receipt requested; sent by reputable overnight courier such as Federal Express; or sent by e mail or other form of electronic communication, and shall be deemed to have been given when hand delivered, three (3) business days after deposit in the U.S. mail, one (1) business day after timely deposit with an overnight courier, or upon receipt if sent by e mail or other form of electronic communication, as the case may be. All notices shall be sent or delivered to the respective address specified below, except that either Party, upon notice to the other Party as provided for herein, may change the address to which further notices shall be sent:

13.19 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online Master Subscription Agreement electronically accepted by Subscriber. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum, or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Subscriber purchase order or in any other Subscriber order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

March 5, 2024