Subscription Agreement

This Subscription Agreement (“Agreement”) is made by and between (“Customer”) and Alyce, Inc. (“Alyce”) and sets forth the terms and conditions governing Customer’s access to and use of the Subscription Services (as defined below).

1. DEFINITIONS

1.1. “Affiliate” means with respect to a Customer or Alyce, any entity which (i) is controlled by, (ii) controls, or (iii) is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.

1.2. “Alyce Platform” means the Software-as-a-Service platform owned and operated by Alyce through which an Authorized User (as defined below) may access the Subscription Services. Alyce Platform does not include sandbox or test environments. 

1.3. “Authorized User” means an employee, advisor, or agent of Alyce’s Customer, or other individual authorized by Alyce’s Customer , that has been assigned a username-password combination to access and use the Subscription Services or any person given access by Alyce’s Customer to use the Subscription Services

1.3a. “CCPA” means the California Consumer Privacy Act, California Civil Code § 1798.100 et seq., as amended, and any regulations promulgated thereunder.

1.3b. “CCPA Data” means personal information, as defined in the CCPA, that is specifically regulated by the CCPA.

1.4. “Confidential Information” means any information (i) clearly labeled as proprietary or confidential, identified as proprietary or confidential at the time of its disclosure or in a writing or (ii) which should reasonably be understood to be confidential given the nature and circumstances of its disclosure, provided that Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

1.5. “Customer Data” means any (i) data input into and/or stored by the Subscription Services that is provided by or for, or on behalf of, Customer or its Authorized Users, including Personal Data and Personal Information (as defined below) about Authorized Users and Gift Recipients and (ii) data generated by Alyce on Customer’s specific behalf. Customer Data is Confidential Information of Customer. Customer Data includes Personal Data and Personal Information (as defined herein) about Authorized Users and Gift Recipients. Customer Data excludes Gift Recipient Data. Customer Data excludes any data or duplicates of data made available to Alyce’s publicly available website, sandbox or test environments. 

1.6. “Fees” means any fees paid by Alyce’s Customer for the Subscription Services including gift deposits, documented in an Order Form.

1.6a. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016, including as incorporated into UK domestic law by the European Union (Withdrawal) Act 2018.

1.6b. “GDPR Data” means Personal Data regulated by the GDPR.

1.7. “Gift Recipient” means any of Customer’s prospective customers, or existing customers or marketing contacts that Customer has selected to receive a gift invitation or has accepted a gift through the Subscription Services.

1.8. “Gift Recipient Data” means any data provided directly by a Gift Recipient to Alyce in connection with a gift invitation, gift or donation selection and delivery. Gift Recipient Data is Confidential Information of Alyce. Gift Recipient Data excludes Customer Data. 

1.9. “Intellectual Property Rights” means patent rights, copyrights, trade secrets, moral rights know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.10. “Order Form” means an order for Subscription Services mutually agreed between the parties, which incorporates this Agreement and its terms by reference.

1.10a. “Personal Data” and “Personal Information” each means information that identifies, or could be used to identify, a natural person.

1.11. “Security Incident” means the actual unauthorized acquisition of Customer Personal Data or Personal Information maintained or stored by Alyce.

1.12. “Software” means the Alyce Platform or third-party software used by Alyce to provide the Subscription Services.

1.13. “Subscription Services” means the online and hosted services provided by Alyce through the Alyce Platform including the facilitation of gifting on Customer’s behalf. The scope of the Subscription Services purchased by the Customer may be further described in the Order Form.

2. SUBSCRIPTION SERVICES

2.1. Subscription Services. Alyce will provide the Subscription Services in accordance with this Agreement, commencing on the date set forth in the Order Form and continuing for the Term set forth therein. Customer may access and use the Subscription Services solely for its internal business purposes, subject to the terms of this Agreement, and such access and use is expressly limited to the Authorized Users of Customer.

2.2. Restrictions. Customer shall not attempt to interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. Customer shall not, and shall use commercially reasonable efforts to ensure its Authorized Users do not: (a) copy, modify or distribute any portion of the Subscription Services or Software; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; or (c) transfer any of its rights hereunder (except as expressly set forth herein).

2.3. Acceptable Use. Customer shall use the Subscription Services exclusively for authorized and legal purposes, consistent with applicable laws, regulations and the rights of others. Customer shall not use the Subscription Services to transmit any bulk unsolicited commercial communications. Customer shall be responsible for all gift or related charges it incurs through its use of the Subscription Services.

2.4. Illegal and Unauthorized Use of Services. Alyce may immediately suspend or terminate Customer’s access to the Subscription Services, by written notice to Customer, in the event that (i) Alyce determines on the basis of reasonable evidence that the Subscription Services are being used for fraudulent or criminal activities, or in violation of any applicable law or regulation, or (ii) in the event that a governmental, legal or other law enforcement authority so requires, or instructs Alyce to terminate or suspend services to Customer. Customer is and shall be solely responsible for any fraudulent use, misuse, or illegal activity conducted in or on the Subscription Services by its Authorized Users. Customer agrees that use of the Subscription Services by its Authorized Users is authorized activity for which Customer solely is responsible, including to Alyce. In the event Alyce suspects or anticipates such termination, Alyce will, to the extent practical under the circumstances, use commercially reasonable efforts to provide Customer with prior written notice of the same and an opportunity to cure the same prior to (and in avoidance of) termination. Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be possible or practical.

2.5. Data Maintenance and Backup Procedures. The Alyce platform is not intended to be a failsafe data warehouse or data back-up solution. In the event of any loss or corruption of Customer Data, Alyce shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Alyce; Customer acknowledges that full restoration of Customer Data may not be possible under all circumstances.

3. CUSTOMER OBLIGATIONS

3.1. Cooperation and Assistance. Customer shall at all times: (a) provide Alyce with good faith cooperation and access to such information and personnel assistance as may be reasonably required by Alyce in order to provide the Subscription Services from time to time; and (b) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.

3.2. Marketing Support. Upon prior written approval (email accepted) Customer may grant to Alyce a non-exclusive, non-transferable, revocable, limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in accordance with any Customer trademark and logo use guidelines that Customer provides to Alyce. Any public use by Alyce of the Customer Marks shall be subject to Customer’s prior consent, except that Alyce may use the Customer Marks to identify Customer as a customer of Alyce, including on the Alyce corporate website. 

3.3. License to Customer Data. Customer shall retain all right, title, and interest in and to Customer’s intellectual property rights in Customer Data. By importing or processing Customer Data, Customer grants to Alyce the right and license to reproduce, distribute, modify, and adapt Customer’s Data for the purpose of providing the Subscription Services to Customer, including the right to disclose Customer Data to Alyce's subcontractors as necessary to provide the Subscription Services to Customer as well as to gift marketplace vendors when necessary to facilitate the purchase or provision of gifts. Alyce may use, display, store, disclose or transfer Customer Data as may be required by law or legal process and Alyce shall provide reasonable notice (where possible) to Customer of any such disclosure. Notwithstanding the foregoing, Alyce may use de-identified or aggregated Customer Data for product improvement, benchmarking and system performance enhancements.

3.4. Representations and Warranties of Customer. Customer represents, and warrants that with respect to the Customer Data set forth in Section 1.5(i) above:

3.4.1. It is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize Alyce, (or if applicable, Authorized Users) to use and distribute Customer Data as necessary to provide the Subscription Services to Customer.

3.4.2. Customer Data, and the use thereof as contemplated herein, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.

3.4.3. Customer shall at all times comply with all applicable laws, rules and regulations, including data privacy laws. 

4. ALYCE OBLIGATIONS

4.1. Representations and Warranties of Alyce. Alyce represents and warrants that:

4.1.1. Alyce shall at all times comply with all applicable laws, rules and regulations including data privacy laws.

4.1.2. The Subscription Services provided hereunder will be supplied in a commercially reasonable manner consistent with industry standards and in accordance with the documentation set forth in the Order Form. 

5. FEES; TAXES; GIFTS

5.1. Fees; Late Payment. Customer shall pay the Fees as set forth and defined in the Order Form, using the method described therein. Customer is responsible for maintaining complete and accurate billing and contact information and notifying Alyce of any changes to such information. In the event that an invoice is not timely paid, Alyce shall have the right to (i) charge interest on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Alyce, and (ii) suspend Customer’s access to the Subscription Services if Fees remain overdue after reasonable notice is provided to Customer. Alyce shall not pursue its rights in the foregoing sentence with respect to Fees that are under a reasonable good faith dispute which Customer is cooperating diligently to resolve. If undisputed Fees remain overdue for ninety (90) days or more, Customer shall be obligated to reimburse Alyce for the reasonable costs of collection, including reasonable fees and expenses of attorneys which are actually incurred. Except as otherwise set forth in an Order Form, all Fees are non-refundable.

5.2. Taxes. All amounts and fees stated or referred to in this Agreement or any Order Form, are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customers shall be responsible for payment of all Taxes related to Software as Service, gift redemptions and taxes that are related to physical invites that may be levied by the taxing authorities within their jurisdictions or any States that they may send physical gifts.

5.3. Gifts and Donations. The price of gifts featured in the gift marketplace within the Subscription Service are set by Alyce and may include shipping, taxes and setup fees. If a specific gift vendor changes its price for the gift before processing the charge, Alyce will notify Customer. If a gift becomes unavailable, Alyce will notify Customer or enable Gift Recipient to exchange for a different gift within the parameters set by Customer. The risk of loss and title for gifts pass to the Gift Recipient upon delivery of the item to the carrier. If the gift is lost or destroyed prior to delivery, Alyce will reasonably assist the Gift Recipient in obtaining the repair or replacement of the item. If Alyce is unable at its reasonable discretion to make the donation to the selected charity (for example, if the charity is de-registered, or has prohibitive sanctions listed against it) then Alyce will ask the Gift Recipient to select a different charity. Alyce does not offer refunds once a gift is purchased or a charitable donation is made.

6. OWNERSHIP

As between Alyce and Customer, the Subscription Services and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Alyce or its licensors. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Subscription Services and Software provided by Alyce (the “Materials”) are protected by all relevant intellectual property and proprietary rights under applicable laws. All Materials contained in the Subscription Service are the property of Alyce or its third-party licensors. Except as expressly authorized by Alyce, Customer may not make use of the Materials. Alyce reserves all rights to the Materials not expressly granted in this Agreement.

7. CONFIDENTIALITY AND SECURITY; DATA PRIVACY.

7.1. Confidentiality Obligations. During the Term and for a period of three (3) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Neither party shall disclose Confidential Information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with confidentiality obligations. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide (to the extent permitted by applicable law) the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

7.2. Security Obligations. Alyce shall (i) maintain information security practices for Alyce's systems used to provide Subscription Services, including reasonable security procedures and practices appropriate to the nature of the information, designed to prevent unauthorized access to, or use or disclosure of, any Customer Data, or a Security Incident, and (ii) comply with all privacy and data security laws and regulations applicable to Alyce. Alyce shall promptly notify Customer of any confirmed Security Incident that has impacted Customer Data, and investigate and remediate any such Security Incident. For Security Incidents arising out of Alyce's gross negligence, willful misconduct, or failure to comply with applicable law and commercially reasonable security practices, Alyce shall be responsible for (i) costs of government or regulatory fines, and (ii) if Customer reasonably determines that it is required by applicable law to provide notice and/or credit monitoring or identity protection to any Gift Recipient and/or to provide notice to any governmental entity, costs associated with any such notices or identity protection (collectively, “Breach Costs”). Alyce shall have no responsibility to pay Breach Costs related to a Security Incident to the extent such costs are due to negligence, willful misconduct, or fraud by Customer, Gift Recipients or its Authorized Users or a failure by Customer or its Authorized Users to have reasonable security procedures and practices appropriate to the nature of the information or to comply with applicable law. Customer is responsible and liable for the secure handling of gift links in their control.

7.3. Data Privacy.  Each party shall maintain a privacy policy, available on its corporate website, that complies with all applicable laws and industry standards, and which discloses its data use, collection, processing, and retention practices and shall comply with any applicable obligations to provide privacy notices or similar disclosures, such as under Cal. Civ. Code § 1798.100(a)-(b) (as amended by the California Consumer Privacy Rights Act), Cal. Code Regs. tit. 11, § 7012, or GDPR art. 14. Where Customer contracts Alyce to engage in the processing of GDPR Data or CCPA Data, Alyce shall act as the “Controller” or “Business” of the Gift Recipient Data and as “Processor” or “Service Provider” of the Customer Data, respectively. Alyce uses and shares Personal Information as set forth in its privacy policy. Alyce shall not use Gift Recipient Data for any of its own internal sales or marketing activities. In the event that a Customer elects in an Order Form to license international gifting, the parties shall execute a Data Processing Agreement (“DPA”) which shall be governed by this Agreement. The parties may mutually elect to enter into a DPA for domestic gifting as well. For purposes of this Agreement, the terms Controller and Processor shall have the meanings ascribed to them by the GDPR, and the terms Business, Service Provider, Share, and Sell shall have the meanings ascribed to them by the CCPA.

7.4. Contractual Provisions Required By California Civil Code §§ 1798.100(d) & 1798.140(ag), As Amended By The California Consumer Privacy Rights Act, For CCPA Data.

7.4.1. Alyce shall not Sell or Share CCPA Data contained in Customer Data or retain, use, or disclose such CCPA Data for any purpose other than to provide the Subscription Services, outside of the direct business relationship between Customer and Alyce, or as otherwise permitted herein. Alyce further shall not at any time combine such CCPA Data contained in Customer Data with CCPA Data that Alyce receives from or on behalf of another Customer or from its own interaction with the individual about whom the CCPA Data relates, other than as provided elsewhere herein or as permitted by law. Nothing in this Section shall be read to limit Alyce’s rights under Section 3.3.

7.4.2. Customer is disclosing CCPA Data contained in Customer Data only for the limited purposes specified in this Agreement. Alyce shall comply with applicable obligations under the CCPA as to any such CCPA Data and will provide the same level of privacy protection for the CCPA Data as is required by the CCPA, and if Alyce determines that it can no longer meet its obligations under the CCPA, Alyce shall so notify Customer. Upon notice, Customer shall have the right to take reasonable and appropriate steps to stop and remediate unauthorized use of CCPA Data. Alyce shall provide, upon Customer’s request, copies of any relevant summaries of its most recent external security certifications or internal security audit reports necessary to verify Alyce’s compliance with this Section, which shall be subject to the confidentiality provisions herein. Nothing herein shall be construed to require Alyce to provide: (a) trade secrets or any proprietary information; (b) any information that would violate Alyce’s confidentiality obligations, contractual obligations, or applicable law; or (c) any information, the disclosure of which could threaten, compromise, or otherwise put at risk the security, confidentiality, or integrity of Alyce’s infrastructure, networks, systems, or data. While it is the parties’ intention ordinarily to rely on the provision of the documentation in the preceding sentence to verify Alyce’s compliance with this Section, Alyce shall where required by law, permit Customer (or its appointed third-party auditors) to carry out an audit of Alyce’s processing of CCPA Data under the Agreement once per year, directly following a reported Security Incident suffered by Alyce. Customer must give Alyce reasonable prior notice of such intention to audit, conduct its audit during normal business hours, and take all reasonable measures to prevent unnecessary disruption to Alyce’s operations. Any such audit shall be at Customer’s expense and is subject to Alyce’s security and confidentiality terms and guidelines.

7.4.3. Alyce’s disclosure of CCPA Data contained in Gift Recipient Data to Customer constitutes a “sale” under the CCPA, and Alyce is disclosing any such CCPA Data for the limited purpose of permitting the Customer to understand the identity of Gift Recipients who have accepted a gift from Customer through the Subscription Services and to permit Customer to contact, and communicate with, such Gift Recipients. Customer shall comply with applicable obligations under the CCPA as to the CCPA Data and will provide the same level of privacy protection for the CCPA Data as is required by the CCPA, and if Customer determines that it can no longer meet its obligations under the CCPA, Customer shall so notify Alyce. Upon notice, Alyce shall have the right to take reasonable and appropriate steps to stop and remediate unauthorized use of CCPA Data. Alyce may take reasonable and appropriate steps to help ensure that Customer uses the personal information transferred in a manner consistent with Alyce’s obligations under the CCPA. 

8. WARRANTY AND DISCLAIMER

8.1. Warranty for Subscription Services. Alyce warrants that the Subscription Services will substantially conform to the functionality set forth herein, and any related services shall be provided in a professional and workmanlike manner.

8.2. Customer Use and Data. Alyce shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Alyce by Customer, Gift Recipients or Authorized Users in connection with the Subscription Services. Except as otherwise set forth herein, Alyce expressly disclaims any and all liability in connection with Customer Data. Alyce is under no obligation to edit or control Customer Data that Customer imports to or the Subscription Services. Alyce may, at any time without prior notice, remove any Customer Data that violates this Agreement or applicable law, or which violates the rights of a third party or Alyce.

8.3. Third Party Products. Alyce may provide links to and integrations with optional third party applications, services or products for use in connection with the Subscription Services (“Third Party Products”). These Third Party Products are not owned or controlled by Alyce and are only provided to Customer as a convenience. Customer’s use of the Third Party Products is solely between Customer and the applicable Third Party Product, subject to the invoice procedures for promotional products set forth below. Alyce does not warrant, endorse, guarantee or assume responsibility for the use of such Third Party Products by Customer and/or its Authorized User.

8.4. Promotional Products Partners. With respect to the ordering and purchase of branded merchandise or kits or other services (“Promotional Products”) from Third Party Products (“Promotional Products Partners”), the following terms also apply: 

A. Customer shall approve such orders via an emailed quote from the Promotional Products Partner and, depending on the particular order and Promotional Products Partner, will be either (i) promptly invoiced for the order by Alyce following the Effective Date, or (ii) invoiced for the fulfilled gifts of the order each month in arrears via the Platform. Unless stated otherwise, such quote will not include shipping fees, warehousing fees, customs and duties, and applicable taxes for fulfilled gifts, which are Customer’s responsibility and will be invoiced in arrears by Alyce. 

B. Customer hereby grants to Alyce a non-exclusive, non-transferable, revocable, limited right to use the Customer Marks on Promotional Products ordered from Promotional Products Partners by Customer. 

C. With respect to Promotional Products that are maintained by Promotional Products Partners’ inventory, Customer shall reasonably cooperate with Promotional Products Partners to help manage the inventory levels of such Promotional Products. Customer may elect to allow Promotional Partners to manage inventory on its behalf reflected in the emailed quote. 

D. To be determined in Promotional Products Partners’ sole discretion, Customer may be required to purchase any Promotional Products ordered from Promotional Products Partners that are maintained by Promotional Products Partners’ inventory for more than 150 days, and may be required to take delivery of such remaining inventory or make arrangements with Promotional Products Partners to scrap it. 

E. If, after ordering Promotional Products from Promotional Products Partners, (i) the Customer changes the design of any Promotional Products, (ii) the Customer requests that any existing order be discontinued, or (iii) the Subscription Agreement is terminated or expires, Customer will be obligated to purchase all Promotional Products ordered from Promotional Products Partners that are maintained by Promotional Product Partners’ inventory. With respect to subsection (iii) above, such purchase must occur within 30 days of the date of such termination or expiration.

F. Notwithstanding the foregoing, Customer may purchase warehousing services for any Promotional Products to be maintained by Promotional Products Partners’ inventory due to the circumstances set forth in Sections D and E, above. 

8.5. General Disclaimer. OTHER THAN THE WARRANTIES IN THIS AGREEMENT ALYCE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SUBSCRIPTION SERVICE, GIFTS OR OTHER SERVICES PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, ALYCE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY WITH RESPECT TO ANY TRANSACTION INVOLVING ANY THIRD-PARTY PRODUCTS.

9. TERM AND TERMINATION

9.1. Term. The term of the Subscription Services shall be as set forth in the Order Form (“Term”). This Agreement shall commence on the date set forth in the Order Form and shall continue unless terminated earlier as provided in this Agreement. Except as otherwise specified in the Order Form, the Term shall automatically renew for additional periods equal to the expiring Term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the expiring Term.

9.2. Renewal. The parties may elect to renew the Subscription Services by executing a renewal Order Form.

9.3. Termination for Breach. If either party commits a material breach of its obligations in this Agreement or any Order Form (including payment obligations), the non-defaulting party may give written notice to the defaulting party specifying the nature of the default, and if such default is not remedied, or substantial efforts are not made to remedy such default, within thirty (30) days from the receipt of such notice, then the non-defaulting party shall have the right to immediately terminate this Agreement or the Order Form by written notice. If the breach relates solely to one Order Form, then only such Order Form may be terminated in accordance with the terms herein and the other Order Forms and this Agreement shall continue in full force and effect. In the event that Customer terminates due to material breach by Alyce, Customer shall be entitled to a pro-rated refund of unused, prepaid Fees as of the date of termination.

9.4. Termination for Insolvency. Notwithstanding anything hereinabove set forth, either party may terminate this Agreement immediately by providing written notice to the other party in the event the other party becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against such party.

9.5. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, (i) Customer’s and Authorized Users’ right to access and use the Subscription Services shall immediately terminate, (ii) Customer and its Authorized Users shall immediately cease all use of the Subscription Services, (iii) Alyce shall cease use of the Customer Marks within a reasonable time, and (iv) upon request, each party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.

9.6. Survival. Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically Sections titled: Ownership, Confidentiality and Security, Indemnification, Limitation of Liability, Disputes, General.

10. INDEMNIFICATION

10.1. Indemnification by Customer. Customer shall indemnify Alyce (and its Affiliates), officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any claim by a third party: (i) to the extent arising out of Customer’s or any Authorized User’s use of, or any person granted access by a Customer to use, the Subscription Services in a manner that violates applicable laws, the terms herein and in the DPA (if applicable) or (ii) alleging that any Customer Data, as used in the Subscription Services, violates a third party’s privacy or other rights (except to the extent such damages are caused by Alyce's failure to comply with applicable laws). Customer’s obligations under this Section 10.1 are contingent upon Alyce providing Customer with prompt written notice of such claim. Alyce may not settle any claim to which it is seeking or is entitled to indemnification in a manner that would result in an admission of any wrongdoing by Customer, without Customer’s prior written approval which shall not be unreasonably withheld, conditioned or delayed.

10.2. Indemnification by Alyce. Alyce shall indemnify Customer, its officers, directors, and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any third party’s claim that: (i) the Subscription Services or Customer’s authorized use of Subscription Services infringes or misappropriates the Intellectual Property Rights of any third party; or (ii) arises out of Alyce's violation of laws applicable to Alyce’s provision of the Subscription Services. Alyce's obligations under this Section 10.2 are contingent upon: (a) Customer providing Alyce with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Alyce, at Alyce's expense, in the defense and settlement of such claim; (c) Alyce having sole authority to defend or settle such claim and (d) a claim does not arise from an act of Customer or acts outside of Alyce’s control. With respect to claims described in subsection (i) herein, in the event that Alyce's right to provide the Subscription Services is enjoined or in Alyce's reasonable opinion is likely to be enjoined, Alyce may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer and provide a pro rata refund of any Fees prepaid and unused upon such termination. The foregoing states the entire obligation of Alyce and its licensors with respect to any alleged or actual infringement or misappropriation of intellectual property rights by the Subscription Services. Alyce shall have no liability or obligation under this Section caused in whole or in part by: (y) modification of the Subscription Services by any party other than Alyce without express written consent, or (z) the combination, operation, or use of the Subscription Services with other product(s), data or services where the Subscription Services would not by itself be infringing.

11. LIMITATION OF LIABILITY

11.1. Consequential Damages Waiver. Except in the event of a party’s gross negligence, willful misconduct or fraud, in no event shall either party be liable to the other party for an incidental, special, exemplary or consequential damages, including loss of income, data, profits, revenue or business interruption, or cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability) or otherwise.

11.2. Liability Cap. In no event shall either party’s aggregate liability to the other party in connection with this Agreement exceed the total Fees paid or payable by Customer in the twelve (12) month period preceding the claim or action, regardless of the form or theory of the claim or action. Notwithstanding the foregoing, with respect to Breach Costs, claims arising from a party’s indemnification obligations, obligations under the DPA (if applicable) or confidentiality obligations, each party’s liability shall be limited to the greater of (i) two times (2x) total Fees paid or payable by Customer in the twelve (12) month period preceding the claim or action, regardless of the form or theory of the claim or action or (ii) Three Hundred Thousand ($300,000) Dollars.

12. DISPUTES

12.1. Informal Resolution. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through reasonable means and providing notice of the dispute. Both parties will use good faith efforts to attempt to reach a resolution. If a dispute is not resolved within thirty (30) days of notice, either party may bring a proceeding, subject to Section 12.2 “Agreement to Arbitrate.”

12.2. Agreement to Arbitrate. Alyce and Customer agree to resolve any claims relating to this Agreement through final and binding arbitration under the Federal Arbitration Act (9 U.S.C. § 1 et seq.), except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Boston, MA or any other location mutually agreeable to the parties.

13. GENERAL

13.1. Governing Law and Forum Selection. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. Any civil actions or other proceeding brought in a court relating to this Agreement that is not arbitrated under Section 12.2, including but not limited to actions or motions to compel arbitration or to confirm or vacate an arbitration decision rendered through Section 12.2, shall be brought exclusively in a federal or state court with jurisdiction over Middlesex County, Massachusetts, including the Business Litigation Session of the Superior Court for Suffolk County, Massachusetts. The parties consent to personal jurisdiction of such courts and waive all arguments and defenses of venue, personal jurisdiction, forum non conveniens, or similar venue-based defenses to such courts’ exercise of jurisdiction over any action or other proceeding brought hereunder. The parties further agree to cooperate to transfer or move any action or other proceeding regarding this Agreement of the Parties dealings hereunder and filed elsewhere in another court to a federal or state court with jurisdiction over Middlesex County, Massachusetts.

13.2. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

13.3. Notices. Any notices provided by Alyce under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Subscription Services. For notices by e-mail, the recipient shall be the e-mail address provided by Customer in the Order Form, and the date of receipt will be the date on which such notice is transmitted. Notices provided to Alyce shall be made to legal@alyce.com.

13.4. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

13.5. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, pandemic, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, pandemic, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

13.6. Compliance with Laws. Each party agrees to comply with all applicable laws, including U.S. export laws, and regulations with respect to its activities hereunder.

13.7. Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

13.8. Assignment/Successors. Neither party may assign or transfer an Order Form or this Agreement, in whole or in part, without the other party’s prior written consent except to its Affiliate or in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing, this Agreement shall inure to the benefit of the successors and permitted assigns.

13.9. Feedback. If Customer or its Authorized Users submit suggestions, ideas, comments, or questions containing product feedback about or posted through the Subscription Services(“Feedback”), Customer grants Alyce and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form. Customer shall have no intellectual property right in the Subscription Services as a result of Alyce's incorporation of Feedback into the Subscription Services.

13.10. Changes. Alyce reserves the right to, without materially affecting the functionality of the Subscription Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Subscription Services at any time, with or without cause or notice, including the availability of any of the features, delivery services, databases, or content, or (2) edit or delete any documents, information, or other content in the Subscription Services.

13.11. Entire Agreement. This Agreement, together with the exhibits hereto and including any Order Forms, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.

13.12. Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

13.13. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the parties may enforce this Agreement.

13.14. Order of Precedence. In the event of a conflict between the terms of an Order Form and this Agreement, the Order Form shall take precedence. In such event, the Order Form shall expressly reference this Agreement and the Section where the Order Form is intended to supersede. 

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