🔸  Section 3.1  Client Compliance. Client shall: (a) be responsible for maintaining throughout the Access Term for each Service the minimum system requirements and security standards (collectively, “System Requirements”) necessary to support Client’s Access thereto (as set forth in the Documentation, and which System Requirements may be updated by Milemarker from time to time); (b) be responsible for each Authorized User’s compliance with the terms and conditions of the Agreement, and be liable for the breach by any such Authorized User of the terms and conditions thereof; (c) comply with all Applicable Law in providing Milemarker with access to or use of the Client Data; (d) be responsible for securing, through written agreements with Client’s customers or other applicable Persons, all such rights, licenses, consents and authorizations required in connection with the Client Data in order to permit (i) Client to transmit such Client Data through the Services, (ii) Milemarker to access, process, transfer, store, manage or otherwise use such Client Data, including, without limitation, by and through any and all of Milemarker’s third-party service providers, and (iii) Milemarker to provide the Services to Client, in the manner contemplated herein, without violating the privacy or other rights of any Client customer or other Person; (e) be responsible for the accuracy, quality, integrity, reliability, appropriateness and legality of all Client Data transmitted through the Services, and the means by which Client acquires all such Client Data transmitted through the Services; (f) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Milemarker promptly of any unauthorized access to or use of the Services of which Client becomes aware; (g) maintain all Access Credentials as Confidential Information; (h) use the Services only as permitted by and in accordance with the Agreement and all Applicable Laws; and (h) comply with the terms and conditions of service applicable to all non-Milemarker applications, services and products used or accessed by Client in connection with the Services, including, without limitation, the terms and conditions of any applications, services and products referenced in the System Requirements.

🔸  Section 3.2  Client Restrictions. Client shall not directly or indirectly: (a) make any Service available to, or use any Service for the benefit of, any Person other than Client and its Authorized Users (and, indirectly, Client’s customers); (b) sell, resell, rent, lease, license, sublicense or distribute any Service to any Person, or include any Service in a service bureau or outsourcing offering; (c) use any Service (i) in any manner in violation of the privacy or other rights of any Person, or (ii) for any purpose or in any manner contrary to any Applicable Law; (d) permit access to or use of any Service by Persons other than the Authorized Users, or in any manner that serves to circumvent the limitations on use thereof as set forth in the Agreement, or in any other manner not expressly contemplated and permitted thereunder; (e) copy any Service, or any portion, feature or function thereof; (f) access or use any Service in aid of any effort to build a competitive product or service; (g) disassemble, decompile, reverse engineer or otherwise attempt to derive any code or any underlying functionality or any trade secrets of or pertaining to any Service; (h) attempt to access or use any Service by any method not compliant with the System Requirements; (i) copy, reproduce, publish, distribute, display, create any derivative works based on, commercially exploit, or otherwise make any use or disclosure of, any Milemarker Assets for any purpose not expressly contemplated or permitted under the Agreement; (j) remove, obscure, alter or otherwise modify any copyright, trademark or other proprietary notices placed or appearing on any Milemarker Assets; (k) limit, impair or otherwise disrupt the integrity, performance or availability of any Service or of any data utilized in connection therewith; (l) use or interact with any Service in any manner that could limit, impair or otherwise disrupt any other Person’s use thereof (including, without limitation, by transmitting or uploading to any Service any viruses, worms, time bombs, Trojan horses or other malicious code); (m) attempt to gain unauthorized access to any Service or its related systems or networks, or use any Service to gain unauthorized access to any other Person’s account, data or related systems or networks by any means; or, (n) frame or mirror all or any part of any Service.

Article 4.  Milemarker Standards and Compliance.

🔸  Section 4.1  Availability of Services; Support Standards.  Subject to the terms and conditions of the Agreement, Milemarker shall: (a) make available to Client the Services as provided in the Agreement; (b) provide to Client support for the Services in accordance with the Service Support Standards (as may be set forth in the Documentation, and which Service Support Standards may be updated by Milemarker from time to time);  and (c) use commercially reasonable efforts to make the Services available to Client 24 hours a day, 7 days a week, except for (i) scheduled downtime, for which Milemarker shall endeavor to provide Client reasonable advance notice and which, to the extent practicable, Milemarker shall endeavor to schedule between [9:00 p.m. Friday and 6:00 a.m. Monday (Eastern Time)], (ii) unavailability due to emergency maintenance, for which Milemarker shall endeavor to provide Client reasonable advance notice, where practicable, and (iii) unavailability attributable to any Force Majeure event.

🔸  Section 4.2  Service Security Standards.  Milemarker has implemented, and shall maintain throughout the Term of the Agreement, administrative, physical, and technical safeguards in an effort to protect the security, confidentiality and integrity of the Services, in accordance with the Service Security Standards (as may be set forth in the Documentation, and which Service Security Standards may be updated by Milemarker from time to time).

🔸  Section 4.3  Milemarker Compliance.  Milemarker shall: (a) provide the Services in accordance with the terms and conditions of the Agreement and all Applicable Laws; and (b) be responsible for the performance of its personnel (including its employees and subcontractors) and their compliance with Milemarker’s obligations under the Agreement.  Notwithstanding Sections 4.1 and 4.2, Milemarker shall not be responsible or liable for any failure to meet the Service Support Standards, the Service Security Standards, or any other responsibilities hereunder, caused, in whole or in part, by the (non)performance, (in)adequacy, (in)accuracy, concurrency or failure of, or other issues related to, Client’s systems, system requirements, security standards, data, premises, utilities, facilities, Authorized Users or personnel.

🔸  Section 4.4  System Metrics.  Client agrees and acknowledges that, through Client’s and its Authorized Users’ Access to the Service, Milemarker may automatically collect usage and volume statistical information regarding such usage (collectively, “System Metrics”).  Milemarker may use the System Metrics for any internal purpose, including, among other things, to assist in diagnosing technical problems, administering the Services, and to improve its offerings and marketing of the Services.  Client agrees and consents to Milemarker’s collection and use of the System Metrics.

🔸  Section 4.5  Change, Discontinuance or Modification of Services. Milemarker reserves the right, in its sole discretion, to change, discontinue or modify, in whole or in part, any Services, or any features or functionalities thereof, from time to time, in each case upon notice to Client.  If such modifications materially and adversely affect the functionality of any applicable Services, Client’s sole remedy is to terminate its subscription for any applicable Services pursuant to Section 12.3.

Article 5.  Fees and Payment.

🔸  Section 5.1  Fees.  Client shall pay to Milemarker all fees for all Services to which Client has subscribed, in the amounts set forth in the Services Order (collectively, “Fees”).  Except as otherwise specified herein or in the Services Order: (a) Fees are based upon the Services subscribed for, and not upon actual Access during the Access Term; (b) Fee payment obligations are non-cancelable and, except as and to the extent expressly provided herein to the contrary, Fees paid are non-refundable; and (c) subscriptions for any Services purchased  cannot be changed during the Access Term applicable thereto.

🔸  Section 5.2  Invoicing and Payment.  Milemarker shall invoice Client in accordance with the billing, contact and other information set forth in the Services Order.  Client shall be responsible for providing complete and accurate billing, contact and other information called for in the Services Order, and for notifying Milemarker of any changes to such information.  Unless otherwise provided in the Services Order, invoiced Fees shall be due net thirty (30) days from the invoice date, and all Fees shall be paid in United States dollars and made by business check, by wire transfer or ACH to a bank account specified by Milemarker on the applicable invoice, or by credit card (subject to an additional convenience fee in an amount equal to three percent (3%) of the invoiced amount).

Section 5.3  Overdue Fees.  In the event that any invoiced amount is not received by 🔸  Milemarker when due, then without limiting Milemarker’s rights or remedies: (a) such amounts shall accrue interest at the rate of 1.5% of the outstanding balance per month or, if lower, the maximum rate permitted by law; and (b) Milemarker may condition all subsequent subscription renewals on payment terms shorter than those specified in Section 5.2.

🔸  Section 5.4  Suspension of Services for Fees Dues; Acceleration of Fees.If any amount due and owing by Client hereunder is thirty (30) or more days overdue, Milemarker may, without limiting its other rights and remedies: (a) accelerate Client’s then-unpaid Fee obligations so that all such obligations become immediately due and payable; and (b) suspend all Services to Client until such amounts are paid in full.  Milemarker shall give Client at least ten (10) days’ prior notice that its account is overdue, in accordance with Section 13.3, before so suspending Services.

🔸  Section 5.5  Payment Disputes. Milemarker shall not exercise its rights under Sections 5.3 or 5.4 if and to the extent Client is disputing any invoiced amounts reasonably and in good faith, and is cooperating diligently to promptly resolve the dispute.

🔸  Section 5.6  Taxes.Unless otherwise set forth in the Services Order, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Client shall be and remain responsible for paying all Taxes associated with Client’s subscription for and use of the Services hereunder.  If Milemarker has a legal obligation to pay or collect Taxes for which Client is responsible under this Section 5.6, Milemarker shall invoice Client and Client shall pay that amount unless Client provides to Milemarker a valid tax exemption certificate authorized by the appropriate taxing authority.

Article 6.  Licenses.

🔸  Section 6.1  Milemarker License Grant.  Subject to the terms and conditions of the Agreement, Milemarker hereby grants to Client a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license: (a) to Access the Service(s) during the Access Term, only for Client’s own internal business purposes and for no other purpose; and, (b) upon expiration or termination of the Agreement, to maintain copies of any Reports generated by Client during the Access Term, and to use such Reports solely in accordance with the terms and conditions of the Agreement and only for Client’s own internal business purposes and for no other purpose.

🔸  Section 6.2  Client License Grant.  Subject to the terms and conditions of the Agreement, Client (for itself and on behalf of its Affiliates) hereby grants Milemarker a royalty-free, assignable, transferrable, sublicensable, non-exclusive license to receive, store, access, host, transmit, use, copy, reproduce, distribute, display, publish, process, reformat, reconfigure, modify, manipulate, arrange, compile, parse, aggregate, create derivative works of, and otherwise exploit, the Client Data, in each case [only] as part of or otherwise in connection with: (a) the provision of Services to Client hereunder during the Access Term; and, (b) the exercise of its rights or performance of its duties and obligations under the Agreement.

Article 7.   Intellectual Property Rights; Reservation of Rights.

🔸  Section 7.1  Milemarker Rights.  Client acknowledges and agrees that Milemarker is and shall remain the exclusive owner of all worldwide right, title and interest, including, without limitation, any and all Intellectual Property Rights, in and to the Milemarker Assets.  Subject to the license grant set forth in Section 6.1, and except as otherwise set forth in the Agreement: Milemarker reserves all right, title and interest in and to the Milemarker Assets; Client shall have no right, title or interest in or to any Milemarker Assets or any portion thereof; and, nothing in the Agreement shall operate or be construed as an express or implied grant, transfer, conveyance, assignment or license to the Client of any right, title or interest in and to any Milemarker Assets.  To the extent the exclusive worldwide right, title and interest, including, without limitation, any and all Intellectual Property Rights, in and to any of the Milemarker Assets does not automatically vest in Milemarker, Client (for itself and on behalf of its Affiliates, Authorized Users and employees) hereby irrevocably assigns, transfers, conveys, quitclaims and delivers to Milemarker, and Milemarker hereby accepts, the exclusive worldwide right, title and interest that Client (or that any of its Affiliates, Authorized Users or employees) has, may have or may hereinafter have in and to any and all of the Milemarker Assets, including, without limitation, any and all Intellectual Property Rights therein and thereto.  For the avoidance of doubt, Client hereby further acknowledges and agrees that Milemarker, as the exclusive owner of all worldwide right, title, and interest in and to the Milemarker Assets (including, without limitation, any and all Intellectual Property Rights therein and thereto), is and shall remain the exclusive owner of, inter alia, the exclusive worldwide right: (a) to use or otherwise commercially exploit any and all Milemarker Assets for any purpose, and to receive and collect any and all income, revenue, profit, royalties, damages, claims and payments now or hereafter due or payable in connection therewith, without any duty to account to Client; and, (b) to bring any and all causes of action, either at law or in equity, for past, present or future infringement or misappropriation of any Milemarker Assets, and to receive and collect any and all income, revenue, profit, royalties, damages, claims and payments now or hereafter due or payable in connection therewith, without any duty to account to Client.  Client (for itself and on behalf of its Affiliates, Authorized Users and employees) hereby agrees not to challenge or otherwise contest, or to assist any third Person in challenging or otherwise contesting, at any time or in any forum or through any judicial or administrative proceeding or otherwise: the validity or enforceability of any Milemarker Intellectual Property Rights; or, Milemarker’s rights, titles or interests in and to any Milemarker Assets, including, without limitation, Milemarker’s ownership of any Milemarker Assets.

🔸  Section 7.2  Client Rights. Subject to the license grant set forth in Section 6.2, and except as otherwise set forth in the Agreement: (a) Client reserves all right, title and interest in and to the Client Data; and (b) Milemarker acknowledges and agrees that, as between Milemarker and Client, Client is and shall remain the exclusive owner of all worldwide right, title and interest in and to any and all Client Data.

🔸  Section 7.3  Feedback.  Client or its Authorized Users may, from time to time, provide Milemarker with suggestions, enhancement requests, recommendations, corrections or other feedback set forth in Section 6.1, or as expressly set forth in the Services Order.

🔸  Section 7.4  Further Actions.  Each Party shall (and shall cause, as applicable, their respective Affiliates, Authorized Users, employees and agents to) take such actions (including, without limitation, execution of assignments, affidavits or other documents) as the other Party may reasonably request, at its own expense, to effect, perfect, or affirm such other Party’s ownership interests and other rights, titles and interests as set forth in Article 7.

Article 8.  Confidentiality.

🔸  Section 8.1  Confidential Information.  The term “Confidential Information” means all confidential and proprietary documents, information, materials and things that a disclosing Party or its Affiliates (collectively, the “Disclosing Party”) will provide or otherwise make accessible to a receiving Party or its Affiliates (collectively, the “Receiving Party”) hereunder, whether tangible or intangible, and in whatever form or medium (e.g., written, oral, graphic, electronic or other form), including, for example but without limitation, data, specifications, formulae, technology, materials, products, processes, methods, procedures, know-how, plans, strategies, reports, research developments, inventions, designs, concepts, diagrams, business plans, financial data, the existence and the terms and conditions of the Agreement, and any other documents and information pertaining to the business affairs of the Disclosing Party, as well as all documents and information generated by the Receiving Party that contain, reflect, or are derived from the documents and information provided or made accessible by the Disclosing Party to the Receiving Party hereunder.  Notwithstanding the foregoing, “Confidential Information” shall not include any documents, information, materials and things that: (a) were generally available to the public, or otherwise part of the public domain, when received by the Receiving Party; (b) become generally available to the public, or otherwise part of the public domain, other than through breach of the Agreement by the Receiving Party; (c) can be demonstrated by the Receiving Party to have already been in its possession, or otherwise known by it, prior to the time of receipt from the Disclosing Party; (d) are received by the Receiving Party from a third Person that is in lawful possession thereof and under no confidentiality obligation to the Disclosing Party; or (e) can be demonstrated by the Receiving Party to have been independently developed by or for the Receiving Party without access to or use of the Disclosing Party’s Confidential Information.  For the avoidance of doubt, the Parties acknowledge and agree that: (i) the Milemarker Assets shall be deemed the Confidential Information of Milemarker, and shall be and remain subject to the terms and conditions of Article 8 and of the Agreement; and, (ii) the Client Data shall be deemed the Confidential Information of Client, and shall be and remain subject to the terms and conditions of Article 8 and of the Agreement.

🔸  Section 8.2  Permitted Use and Disclosure of Confidential Information.  Except as otherwise set forth in the Agreement, the Receiving Party shall: (a) use the Confidential Information provided or made accessible by the Disclosing Party hereunder solely for the purpose of enabling the Receiving Party to exercise

its rights or perform its duties and obligations under the Agreement, and not for any other purpose whatsoever, (b) restrict the use and disclosure of or access to any of the Disclosing Party’s Confidential Information to the Receiving Party’s employees, agents and representatives who have a “need-to-know” the Confidential Information for the purpose of enabling the Receiving Party to exercise its rights or perform its duties and obligations under the Agreement, and who have been bound by a duty of confidentiality no less protective of the Confidential Information than is provided for in the Agreement (with the Receiving Party bearing ultimate responsibility for any breach of Article 8 by such employees, agents or representatives to whom disclosure of or access to the Disclosing Party’s Confidential Information was made), (c) hold the Disclosing Party’s Confidential Information in the strictest confidence, (d) prevent and protect the Confidential Information, or any part thereof, from any unauthorized use or disclosure (including, without limitation, distribution, dispersal, access, escape, theft, loss or destruction thereof), and from any use by or disclosure to any unauthorized Persons, and (e) implement reasonable internal controls and procedures to prevent any unnecessary or unwarranted duplication or copying of any Confidential Information contained in any tangible or intangible medium.  The Receiving Party understands and agrees that the wrongful disclosure of Confidential Information of the Disclosing Party may result in serious and irreparable damage to the Disclosing Party, that the remedy at law for any breach of Article 8 may be inadequate, and that Disclosing Party seeking redress hereunder shall be entitled to injunctive and other equitable relief, and the Receiving Party agrees to waive any requirement for the Disclosing Party to secure or post any bond or to show any actual monetary damages in connection with any such remedy sought under this Section 8.2 (the foregoing rights and remedies are in addition to, and not in lieu of, any other rights and remedies to which the Disclosing Party may be entitled, whether at law or in equity, including monetary damages).

🔸  Section 8.3  Legally Compelled Disclosures.  Notwithstanding Sections 8.1 and 8.2, in the event the Receiving Party is required by Applicable Law, subpoena or court order to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party, with prompt notice of the disclosure requirement so that the Disclosing Party may seek a protective order or other appropriate remedy to avoid public or third-Person disclosure of its Confidential Information.  Until such time as the appropriate judicial or other authority has ruled upon the Disclosing Party’s protective order or other request for remedy, the Receiving Party shall refrain from disclosing any of the Disclosing Party’s Confidential Information in response to any such Applicable Law, subpoena or court order.  The Receiving Party shall cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, in seeking any protective order or other relief requested or otherwise available under Applicable Law.  If such protective order or other remedy is ultimately not obtained, the Receiving Party shall furnish only so much of the Confidential Information that it is legally compelled to disclose, and any and all such disclosures shall be made under seal or other appropriate assurances of confidentiality.

🔸  Section 8.4  Ownership of Confidential Information.  Subject to the license grants set forth in Sections 6.1 and 6.2, and except as otherwise set forth in the Agreement: (a) all Confidential Information (including any and all Intellectual Property Rights therein) is and shall remain the sole and exclusive property of the Disclosing Party; and, (b) neither the Agreement nor any disclosure of Confidential Information thereunder shall operate or be construed as an express or implied grant, transfer, conveyance, assignment or license to the Receiving Party of any right, title or interest in and to the Confidential Information of the Disclosing Party, or in and to any Intellectual Property Rights therein.

Article 9.  Representations, Warranties and Disclaimers.

🔸  Section 9.1  Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that: (a) it has all corporate and other right and authority necessary to execute, deliver and perform the Agreement in accordance with its terms and conditions; (b) the execution, delivery and performance of the Agreement does not and will not violate any agreement to which it is a party or to which it is bound; (c) when executed and delivered, the Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms and conditions; and (d) except to the extent responsibility for compliance is otherwise specifically allocated hereunder, it shall comply with all Applicable Laws in exercise of its rights or performance of its duties and obligations hereunder.

🔸  Section 9.2  Milemarker’s Provision of Services.  Milemarker represents and warrants to Client that it shall use commercially reasonable efforts to provide the Services in accordance with the terms and conditions of the Agreement.

🔸  Section 9.3  Client’s Fulfillment of Obligations.  Client represents and warrants to Milemarker that: (a) it shall use commercially reasonable efforts to fulfill its duties and obligations hereunder in accordance with the terms and conditions of the Agreement; and (b) it shall obtain all such rights, licenses, consents and authorizations as are required for Client to fulfill such duties and obligations hereunder.

🔸  Section 9.4  Disclaimers of Representations and Warranties.

BECAUSE THE SERVICES INVOLVE THE PROCESSING OF DATA TRANSMITTED TO THE SERVICES BY PERSONS OTHER THAN MILEMARKER, MILEMARKER DOES NOT AND CANNOT ENSURE, REPRESENT, WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, QUALITY, INTEGRITY, RELIABILITY OR APPROPRIATENESS OF THE SERVICES OR THE DATA CONTAINED IN THE VARIOUS DATABASES UPON WHICH THE SERVICES ARE DEPENDENT.  THE SERVICES ARE NOT INTENDED TO BE USED AS A BASIS FOR ANY DECISION, OR TO SERVE AS A SUBSTITUTE FOR PROFESSIONAL ADVICE.  MILEMARKER DOES NOT AND CANNOT ENSURE, REPRESENT, WARRANT OR GUARANTEE THAT CLIENT WILL ACHIEVE ANY PARTICULAR RESULT THROUGH USE OF ANY OF THE SERVICES.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES AND ALL OTHER MILEMARKER ASSETS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MILEMARKER MAKES NO

REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT THERETO.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MILEMARKER HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS OR WARRANTIES (WHETHER AS TO ANY SERVICES OR OTHER MILEMARKER ASSETS, OR OTHERWISE), INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, COMPLETENESS, QUALITY, INTEGRITY, RELIABILITY, TIMELINESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT (INCLUDING WITHOUT LIMITATION ANY NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, PRIVACY RIGHTS OR OTHER RIGHTS OF ANY PERSON), OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR TRADE PRACTICE.  MILEMARKER SPECIFICALLY DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES OR ANY OTHER MILEMARKER ASSETS: (A) WILL OR COULD MEET CLIENT’S BUSINESS REQUIREMENTS; (B) WILL OR COULD BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM USE THEREOF OR ACCESS THERETO WILL BE ACCURATE OR RELIABLE; OR (C) WILL OR COULD OPERATE WITHOUT ERROR OR INTERRUPTION OR THAT ANY AND ALL SUCH ERRORS CAN BE FOUND OR CORRECTED.  MILEMARKER SHALL NOT BE RESPONSIBLE OR LIABLE FOR: (I) ANY FAILURE TO MEET ANY WARRANTY SET FORTH HEREIN IF SUCH FAILURE IS CAUSED BY CLIENT’S OR ANY AUTHORIZED USER’S ERRORS, ACTS OR OMISSIONS, INCLUDING WITHOUT LIMITATION IF SUCH FAILURE IS CAUSED BY THE INABILITY OF ANY CLIENT SYSTEMS, APPLICATIONS OR EQUIPMENT TO INTEROPERATE WITH ANY SERVICES OR ANY OTHER MILEMARKER ASSETS; (II) ANY LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THE AGREEMENT BY MILEMARKER; (III) CLIENT’S OR ANY AUTHORIZED USER’S INABILITY TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET; OR (IV) ANY SERVICE PROVIDED BY OTHER PROVIDERS, INCLUDING ANY THIRD-PARTY SERVICE PROVIDER.

Article 10.  Limitation of Liability.  

THIS ARTICLE 10 AND SECTION 9.4 SET FORTH MILEMARKER’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDIES.  EXCEPT WITH RESPECT TO LIABILITY ARISING UNDER THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 11, AND EXCEPT WITH RESPECT TO LIABILITY ARISING UNDER THE PARTIES’ RESPECTIVE REFUND AND PAYMENT OBLIGATIONS UNDER SECTION 12.7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY: (A) FOR ANY AMOUNT IN EXCESS OF AMOUNTS PAID UNDER THE AGREEMENT DURING THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; AND (B) FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, COST OF SUBSTITUTE GOODS, LOSS OF TECHNOLOGY OR SERVICES, LOSS OF ANY DATA OR OTHER INFORMATION, OR INTERRUPTION OR LOSS OF USE OF ANY SERVICES OR EQUIPMENT, ARISING OUT OF OR IN ANY MANNER CONNECTED WITH OR RELATING TO THE AGREEMENT OR THE SUBJECT MATTER THEREOF, WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, REGARDLESS OF THE FORM OF ACTION, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, WHETHER ARISING UNDER ANY THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE)), EVEN IF A PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.  THE PARTIES ACKNOWLEDGE THAT MILEMARKER HAS ESTABLISHED THE FEES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES AND DAMAGES SET FORTH IN THE AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THE AGREEMENT SHALL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

Article 11.   Indemnification.

🔸  Section 11.1  Indemnification by Milemarker.  Milemarker shall defend Client against any claim, demand, suit or proceeding made or brought against Client by a third Person based upon: (a) an allegation that Client’s Access in accordance with the terms and conditions of the Agreement infringes or misappropriates such third Person’s Intellectual Property Rights; (b) Milemarker’s breach of the Agreement; or, (c) the gross negligence, actual fraud or willful misconduct of Milemarker (or its Affiliates, employees or agents) in connection with Milemarker’s exercise of its rights or performance of its duties and obligations under the Agreement (each a “Claim Against Client”); and shall indemnify Client for any damages, attorneys’ fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement of, a Claim Against Client, provided Client: (i) promptly gives Milemarker notice of the Claim Against Client; (ii) gives Milemarker sole control of the defense and settlement thereof (provided, however, that Milemarker shall not, without Client’s prior written consent, enter into any settlement or consent judgment that obligates Client to take, or refrain from taking, any action other than the payment of damages for which Client is indemnified hereunder); and, (iii) gives Milemarker all reasonable assistance requested in connection therewith at Milemarker’s expense.  If Milemarker receives notice or information that a Service is (or, in Milemarker’s sole determination, may become) the subject of any actual, potential or threatened infringement or misappropriation of a third Person’s Intellectual Property Rights, Milemarker may, in its sole discretion: (A) modify the Service so that it no longer infringes or misappropriates such third Person’s Intellectual Property Rights; (B) obtain a license for Client’s continued use of the Service in accordance with the Agreement; or, (C) terminate Client’s subscriptions for the Service upon thirty (30) days’ notice, and refund to Client any prepaid Fees applicable to those portions of the Access Term for the Service occurring subsequent to the effective date of termination, as set forth in the Services Order.  The above defense and indemnification obligations do not apply to the extent a Claim Against Client arises from (1) Client’s breach of the Agreement, (2) Client’s use of any Client Data and/or any Milemarker Assets in combination with any assets, materials or other things not provided by Milemarker, (3) the Client Data (including any allegation that the Client Data violates such third Person’s privacy rights or other rights), (4) a non-Milemarker application, product or service, or (5) the gross negligence, actual fraud or willful misconduct of Client (or its Affiliates, Authorized Users, employees or agents) in connection with Client’s exercise of its rights or performance of its duties and obligations under the Agreement.

🔸  Section 11.2  Indemnification by Client. Client shall defend Milemarker against any claim, demand, suit or proceeding made or brought against Milemarker by a third Person based upon: (a) an allegation that Client’s use of any Client Data and/or any Milemarker Assets in combination with any assets, materials or other things not provided by Milemarker, infringes or misappropriates such third Person’s Intellectual Property Rights; (b) an allegation that the Client Data violates such third Person’s privacy rights or other rights; (c) a non-Milemarker application, product or service; (d) Client’s breach of the Agreement; or, (e) the gross negligence, actual fraud or willful misconduct of Client (or its Affiliates, Authorized Users, employees or agents) in connection with Client’s exercise of its rights or performance of its duties and obligations under the Agreement (each a “Claim Against Milemarker”); and shall indemnify Milemarker for any damages, attorneys’ fees and costs finally awarded against Milemarker as a result of, or for any amounts paid by Milemarker under a settlement of, a Claim Against Milemarker, provided Milemarker: (i) promptly gives Client notice of the Claim Against Milemarker; (ii) gives Client sole control of the defense and settlement thereof (provided, however, that Client shall not, without Milemarker’s prior written consent, enter into any settlement or consent judgment that obligates Milemarker to take, or refrain from taking, any action other than the payment of damages for which Milemarker is indemnified hereunder); and, (iii) gives Client all reasonable assistance requested in connection therewith at Client’s expense.

🔸  Section 11.3  Exclusive Remedy.Article 11 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in Article 11.

Article 12.  Term and Termination; Suspension.

🔸  Section 12.1  Term of Agreement. The term of the Agreement (the “Term”) shall commence on the Effective Date and shall continue until expiration of the last to expire Access Term as set forth in the Services Order, unless earlier terminated pursuant to Sections 12.2, 12.3 or 12.4.

🔸  Section 12.2  Termination for Cause.Either Party may terminate the Agreement for cause: (a) if the other Party breaches any term or condition of the Agreement which remains uncured as of the date thirty (30) days after notice thereof from the non-breaching Party (provided, however, that if the breach involves the failure to pay Fees in accordance with the terms or conditions of the Agreement, Client shall have ten (10) days to cure such breach following receipt of notice thereof from Milemarker); or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  In the event that the Agreement is terminated for breach pursuant to

🔸  Section 12.2(a), the non-breaching Party shall, in addition to its rights of termination, be entitled to pursue all other remedies against the breaching party, whether at law or in equity.

🔸  Section 12.3.  Termination by Client.  Client may terminate the Agreement with respect to any Service in accordance with Section 4.5, sixty (60) days after providing notice to Milemarker of any material and adverse change in the functionality of such Service, such notice to be provided to Milemarker within thirty (30) days of Client becoming aware of the material and adverse change.

🔸  Section 12.4.  Termination Without Cause.Either Party may terminate the Agreement, without cause, at any time upon ninety (90) days’ advance notice to the other Party.

🔸  Section 12.5  Suspension of Services for System Integrity.In addition to Milemarker’s rights of termination under Article 12, Milemarker shall have the right to suspend Client’s Access, in whole or in part and without notice to Client: (a) if Milemarker reasonably believes that Client’s or its Authorized User’s Access represents a direct or indirect threat to the function or integrity of the Services, Milemarker’s or its service providers’ networks, or any other Person’s access to and use of the Services; (b) if reasonably necessary to prevent unauthorized access to any Services, Client Data, Databases, and/or Confidential Information; and/or (c) to the extent necessary to comply with any Applicable Laws.  If Milemarker suspends Client’s Access without notice, Milemarker will provide the reason for such suspension to Client.  Any suspension of Client’s Access for the foregoing reasons will be in effect for as long as reasonably necessary to address the issues giving rise to the suspension.

🔸  Section 12.6  Suspension of Services for Abuse.  In addition to Milemarker’s rights of termination under Article 12, Milemarker shall have the right to suspend Services immediately upon notice to Client if, in Milemarker’s reasonable good faith judgment, any Milemarker Assets provided or otherwise made available to Client hereunder are being used or disclosed in a manner contrary to the terms and conditions of the Agreement.  Any suspension of Client’s Access for the foregoing reasons will be in effect for as long as reasonably necessary to address the issues giving rise to the suspension.

🔸  Section 12.7  Refund or Payment Upon Termination.  If the Agreement is terminated by Client in accordance with Section 12.2(a), or by Milemarker in accordance with Section 12.4, Milemarker will refund to Client any prepaid Fees applicable to those portions of the Access Terms for Services occurring subsequent to the effective date of termination, in each case as set forth the Services Order.  If the Agreement is terminated by Milemarker in accordance with Sections 12.2(a) or 12.2(b), or by Client in accordance with Section 12.4, Client shall pay to Milemarker any unpaid Fees applicable to those portions of the Access Terms for Services occurring subsequent to the effective date of termination, in each case as set forth the Services Order.  In no event will any termination of the Agreement by Milemarker in accordance with Sections 12.2(a) or 12.2(b), or by Client in accordance with Section 12.4, (a) relieve Client of its obligation to pay to Milemarker all Fees applicable to those portions of the Access Terms for Services occurring prior to the effective date of termination, or (b) obligate Milemarker to refund to Client any prepaid Fees applicable to those portions of the Access Terms for Services occurring subsequent to the effective date of termination, in each case as set forth in the Services Order.

🔸  Section 12.8  Effect of Termination.  Subject to the license grants set forth in Sections 6.1(b), 6.2(b), and except as otherwise set forth in the Agreement, upon expiration or termination of the Agreement for any reason: (a) Client’s Access shall terminate effective as of the effective date of such expiration or termination, whereupon (i) Client shall immediately cease and desist from any and all further Access and from any and all further use of the Milemarker Assets, and (ii) the Receiving Party shall immediately cease and desist from any and all further use and disclosure of the Disclosing Party’s Confidential Information; (b) Client shall, within thirty (30) calendar days after such expiration or termination, return to Milemarker all Milemarker Assets (including any and all copies or reproductions thereof), or delete, destroy and expunge all Milemarker Assets (and any and all copies or reproductions thereof) from any repositories, files or systems (electronic or otherwise) at the option of Milemarker (and certify such destruction to Milemarker upon its request); and, (c) the Receiving Party shall, within thirty (30) calendar days after such expiration or termination, return all Confidential Information of the Disclosing Party (including any and all copies or reproductions thereof), or delete, destroy and expunge such Confidential Information (and any and all copies or reproductions thereof) from any repositories, files or systems (electronic or otherwise) at the option of the Disclosing Party (and certify such destruction to the Disclosing Party upon its request).  Expiration or termination of the Agreement for any reason shall not release, relieve or otherwise absolve the Parties of any duties, obligations or liabilities accruing prior to the effective date of such expiration or termination.

🔸  Section 12.9  Client Data Portability.  Upon Client’s request, made within [thirty (30) days]  of the effective date of expiration or termination of the Agreement [(or such other applicable period as outlined in the Data Warehousing Services provisions of Exhibit A)], Milemarker will (and/or will cause, as applicable, its subcontractor(s) to) transfer to Client (or, as applicable, any third party successor provider of managed services designated by Client by notice to Milemarker) access to any and all subcontractor accounts utilized by Milemarker in connection with the Data Warehousing Services, thereby ensuring Client access to all Client Data managed by Milemarker in connection with the Services.  Upon expiration of such [thirty (30)] day period, Milemarker shall have no obligation to maintain (or cause the maintenance) of Data Warehousing Services or to provide (or cause the provision) to Client of assistance in connection with the transfer to Client (or, as applicable, any third party successor provider of managed services) of such Client Data.  All Services provided by Milemarker to Client pursuant to this Section 12.9 shall be subject to the hourly rates outlined in the Data Warehousing Services provisions of Exhibit A).]  Absent terms to the contrary as outlined in the Data Warehousing Services provisions of Exhibit A), under no circumstances shall Milemarker be required to install, upload or otherwise integrate the Client Data to or with Client’s computer systems or other software, whether prior to or subsequent to the effective date of expiration or termination of the Agreement.

🔸  Section 12.10  Survival. The following Articles and Sections of these Terms shall survive expiration or termination of the Agreement for any reason: Article 1; Section 3.2; Section 4.4; Section 4.5; Article 5 (inclusive of all Sections thereof); Section 6.1(b); Section 6.2(b); Article 7 (inclusive of all Sections thereof); Article 8 (inclusive of all Sections thereof); Article 9 (inclusive of all Sections thereof); Article 10; Article 11 (inclusive of all Sections thereof); Section 12.2 (last sentence thereof only);  Section 12.7; Section 12.8; Section 12.9; Section 12.10; and Article 13 (inclusive of all Sections thereof).

Article 13.  General Provisions.

🔸  Section 13.1  Entire Agreement. The Agreement sets forth the entire agreement between the Parties pertaining to the subject matter thereof and supersedes, supplants and replaces any and all prior agreements, arrangements or understandings between the Parties, whether written or oral, pertaining to the subject matter thereof.  No amendment or modification of any provision of the Agreement shall be effective unless in writing and signed by a duly authorized representative of each Party.

🔸  Section 13.2  Article and Section Headings.  Article and Section headings in these Terms are inserted herein for convenience only and shall not affect the meaning or interpretation of the Agreement or any provisions thereof.

🔸  Section 13.3  Notices.Except as otherwise specified in the Agreement, all notices, requests and other communications thereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) delivery by a nationally recognized overnight courier (provided that a signature evidencing receipt is obtained); (c) the third business day after mailing by first class mail with postage prepaid; or (d) the first business day after sending by e-mail (provided that e-mail shall not be sufficient for notices of termination or any indemnifiable claim); in each case directed to the Parties at the addresses (and to the attention of the Persons) set forth in the Services Order, or at such other addresses (and to the attention of such other Persons) as may be specified by either Party to the other Party in a notice issued hereunder.  Notwithstanding the foregoing, (i) notices related to Fees due under the Agreement shall be directed to the Client’s billing address (and to the attention of the Client’s accounts payable (“A/P”) contact Person) as set forth in the Services Order, or at such other address (and to the attention of such other Person) as may be specified by Client to Milemarker in a notice issued hereunder, and (ii) day-to-day communications regarding the Services shall be addressed to the Parties’ respective designated representatives (contact Persons), in each case as set forth in the Services Order.

🔸  Section 13.4  Governing Law and Jurisdiction.  The Agreement shall in all respects be governed by, and construed and interpreted in accordance with, the laws of the State of South Carolina without giving effect to any conflicts of law principles of said State that might refer the governance, construction or interpretation of the Agreement to the laws of another jurisdiction.  The Parties irrevocably agree that all actions or proceedings in any way, manner or respect, arising out of or from or related to the Agreement shall be litigated only in courts having situs within the State of South Carolina.  The Parties hereby

consent to the exclusive jurisdiction and venue of any local, state, or federal court located within the State of South Carolina and hereby waive any objections based on lack of personal jurisdiction, improper venue or forum non conveniens to the conduct of any action or proceeding instituted hereunder.

🔸  Section 13.5  Specific Performance; Injunctive Relief.  In the event that a Party breaches any material provision of the Agreement, the non-breaching Party shall provide the breaching Party with notice of such breach, and the breaching Party shall have thirty (30) calendar days from receipt of such notice in which to cure any such breach (the “Cure Period”).  No further notice under this Section 13.5 shall be required.  Should the breaching Party fail to cure any such breach within the Cure Period, the non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief as an immediate remedy for any such breach, and the breaching Party agrees to waive any requirement for the non-breaching Party to secure or post any bond or to show any actual monetary damages in connection with any such immediate remedy sought under this Section 13.5.  The foregoing rights and remedies are in addition to, and not in lieu of, any other rights and remedies to which the non-breaching Party may be entitled, whether at law or in equity, including monetary damages.

🔸  Section 13.6  Waiver.  No waiver of any breach or default of any provision of the Agreement shall be deemed to have been made unless expressly in writing and signed by the Party against whom such waiver is charged, and any such express waiver so made shall not operate or be construed as a waiver of any subsequent breach or default of the same or any other provision of the Agreement.  The failure or delay of a Party in exercising any of its rights under the Agreement shall not operate or be construed as a waiver of any such right, and any single or partial exercise of any particular right by a Party shall not exhaust the same or operate or be construed as a waiver of any other right provided in the Agreement.

🔸  Section 13.7  Severability. Whenever possible, each provision of the Agreement shall be interpreted in such a manner so as to be valid and enforceable under Applicable Law.  If the application of any provision of the Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by a court of competent jurisdiction, then: (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of the other provisions of the Agreement, shall not in any way be affected or impaired thereby; and, (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and shall be reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable whilst preserving the original intent of the Parties.  If such provision cannot be enforced, or otherwise reformed to make such provision valid and enforceable, then such provision shall be stricken from the Agreement without affecting or impairing the validity and enforceability of the other provisions of the Agreement.

🔸  Section 13.8  Assignment; Binding Agreement. Client shall not be permitted to assign, transfer, convey or delegate, in whole or in part, the Agreement or any of its rights, duties or obligations hereunder, whether by operation of law or otherwise, without Milemarker’s prior written consent, which such consent may be withheld by Milemarker in its sole discretion.

[Notwithstanding the foregoing, Client shall be permitted to assign the Agreement to any successor-in-interest to all or substantially all of Client’s business or assets, provided that: (a) Client provides Milemarker with not less than thirty (30) days prior notice of any such proposed assignment; (b) such proposed successor does not (in Milemarker’s sole judgment) offer services competitive with the Services; and (c) such proposed successor agrees in writing to be bound by the terms of the Agreement.]

Any assignment, transfer, conveyance or delegation, or attempted assignment, transfer, conveyance or delegation, by Client in contravention of the foregoing shall be null and void ab initio, and shall constitute a breach of the Agreement.  Milemarker shall be permitted to assign, transfer, convey or delegate, in whole or in part, the Agreement, and any of its rights, duties or obligations hereunder[, but shall provide Client with subsequent notice of any such assignment, transfer, conveyance or delegation].  The Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.

🔸  Section 13.9  Subcontracting.Milemarker reserves the right to subcontract any of its duties or obligations hereunder (including, without limitation, the provision of any Services) to one or more subcontractors, agents, partners or Affiliates; it being understood that no such subcontract shall release Milemarker from its liability to Client for the performance of any such duties or obligations.

🔸  Section 13.10  Independent Contractors. The status of the Parties hereunder shall be that of independent contractors.  Neither Party is or shall be deemed an employee, agent or representative of the other Party.  Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of the other Party, or to incur any obligation or liability or otherwise bind the other Party.  The Agreement does not create an association, joint venture, or partnership between the Parties, nor does it impose any partnership liability upon either Party.  Each Party shall be solely responsible for compensating and providing benefits to any Person providing services on its behalf and for ensuring that any associated taxes or other payments due in connection therewith are paid.

🔸  Section 13.11  Excusable Delays.  Neither Party shall be liable for any delay or failure in its performance under the Agreement (except for the payment of Fees by Client) if and to the extent which such delay or failure is caused by, or attributable to, the occurrence of a Force Majeure event.  If a Party becomes aware that such an event is likely to delay or prevent the timely performance of its own obligations hereunder, such Party shall promptly notify the other Party thereof, and promptly undertake efforts to minimize any such delay or remedy such failure, as applicable.

🔸  Section 13.12  Counterparts.  The Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same agreement.  Facsimile signatures, electronic

signatures, or scanned original signatures (e.g., PDF) shall be deemed originals.

🔸  Section 13.13  Third-Party Beneficiaries. There are no third-party beneficiaries under the Agreement.

🔸  Section 13.14  Publicity.Milemarker may use Client’s name and logos (in a form approved by Client) to identify Client as a Milemarker client in Milemarker’s general marketing materials.