Master Subscription and Services Agreement

This MASTER SUBSCRIPTION AND SERVICES AGREEMENT (this “Agreement”) is entered into by and between UserZoom (defined below), and the “Customer” identified in one or more mutually-executed Order Forms (defined below) referencing and incorporating this Agreement, and shall be effective upon the date of execution of the first such Order Form (the “Effective Date”). “UserZoom” shall mean the entity which enters into the first Order Form with Customer, which entity shall be either User Zoom, Inc., a California corporation, or UserZoom Limited, a company incorporated and registered in England and Wales with company number 06984058, as set forth in such Order Form.

1.

Subscriptions

    a.
  1. UserZoom owns certain proprietary software applications and services and has developed and maintains proprietary software and hardware systems that enable and support web-based delivery of such applications and services (together, the “Software Services”). One such Software Service is UserZoom’s web-based, self-service digital user testing and customer experience measurement solution (the “Self-Service Solution”). Among other features, the Self-Service Solution enables Customer Users (as defined below) to (a) depending on the type of Customer User, create, design or manage studies that involve the testing and evaluation of web sites, mobile sites, mobile applications and web applications (“Studies”) and/or (b) depending on the type of Customer User, invite individuals (“Participants”) to participate in those Studies by taking online surveys, completing task-based studies, and providing other feedback. The Ordered Software Service(s), together with the Related Services, both of which are defined below, shall collectively constitute the “Services”.

    b.
  1. From time to time during the Term (as defined below), Customer and its Affiliates (as defined below) may subscribe for the Self-Service Solution by entering into an ordering document (each, an “Order Form”) that sets forth the terms under which UserZoom will make such solution (the “Ordered Software Service(s)”) available to Customer. For the purposes hereof, an “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with UserZoom or Customer. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. UserZoom’s corporate affiliates may also enter into an Order Form(s) with Customer and/or its Affiliates. References to “UserZoom” in this Agreement shall be deemed to be references to the relevant UserZoom affiliate under the applicable Order Form.

    c.
  1. Each Order Form will set forth the start date (the “Subscription Start Date”), the term of the subscription (the “Subscription Period”), the authorized scope of use (the “Scope of Use”), the fees payable, payment terms and any other terms to which the parties may agree. Each Order Form shall incorporate the terms of this Agreement by reference and shall be deemed a part hereof. In conjunction with the execution of an Order Form, UserZoom shall provide Customer with access to its standard user guide for the Self-Service Solution (collectively, along with the product description (if any) attached to the applicable Order Form, the “Documentation”). For the avoidance of doubt, should there be any conflict between this Agreement, an SOW (as defined below) and/or the terms of an Order Form, the relevant terms of the Order Form and/or SOW shall prevail. 

    d.
  1. Each Order Form or SOW shall be agreed in the following manner:

    ⅰ.
  1. Customer shall request an Order Form or SOW for the relevant Services;

    ⅱ.
  1. UserZoom shall use commercially reasonable efforts to provide Customer with a draft Order Form or SOW (as applicable) within 10 business days of such request, and discuss and agree on the content thereunder with Customer in good faith; and

    ⅲ.
  1. An authorized signatory from each party shall then execute the relevant Order Form or SOW, upon which such Order Form or SOW shall be deemed executed by the parties.

2.

UserZoom Services.

In connection with Customer’s use of the Self-Service Solution, UserZoom will perform the following related services (collectively, the “RelatedServices”) during the applicable Subscription Period:

    a.
  1. UserZoom will provision user accounts (i.e., username/password pairs) for the Self-Service Solution for each user designated by Customer’s “Administrator” identified in the Order Form (each a “Customer User”), up to the number of Customer User accounts allowed under the Order Form.

    b.
  1. UserZoom will host and maintain the Self-Service Solution and the other software utilized by UserZoom to deliver the Self-Service Solution (collectively, the “Software”) on servers operated and maintained by or at the direction of UserZoom in a secure, fault-tolerant, seismically-compliant data center that shall at all times comply with the relevant data protection legislation, including the Data Protection Act 2018, General Data Protection Regulation 2016/679 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as amended and/or updated from time to time (“Data Protection Legislation”) (the “Data Center”) in accordance with the terms set forth at https://www.userzoom.com/sla/ (the “SaaS Delivery Services Exhibit”) and separately in relation to any UserZoom Go product purchased https://www.userzoom.com/sla-go/.

    c.
  1. UserZoom will provide Customer with the customer support services described at http://www.userzoom.com/customer-support/ (the “Customer Support Exhibit”).

    d.
  1. If Customer desires assistance with study research, set-up, top-line data analysis, organization of results, reports, or other services (collectively, “Professional Services”), such Professional Services shall either be identified in the applicable Order Form or be documented in a separate statement of work (each, a “SOW”) for the fees set forth therein. All SOWs will incorporate and be subject to the terms of this Agreement.

    e.
  1. If requested by Customer, assist with the sourcing of Participants in accordance with the terms of the Order Form.

3.

Access to the Self-Service Solution.

    a.
  1. Subject to the terms of this Agreement, UserZoom hereby grants Customer’s named internal business group or team, as specified in the applicable Order Form (“Workgroup”) a non-exclusive, non-transferable, royalty-free right to access and use the Self-Service Solution during the Subscription Period set forth in the applicable Order Form to: (i) create, design, submit content to, manage and access the results of Studies; (ii) invite Participants to view, submit content to, and otherwise participate in Studies; and (iii) otherwise use the features and functionality of the Self-Service Solution for Customer’s internal business purposes, all subject to the Scope of Use limitations set forth in the Order Form and the other terms and conditions of this Agreement.

    b.
  1. Each account may be used only by the individual Customer User to whom it is assigned. Customer may re-assign Customer User accounts by written notice to UserZoom, which may be given via email from the Administrator designated in the Order Form; provided, that Customer may not re-assign Customer User accounts for the purpose of defeating the limit on Customer Users set forth in the Order Form. Customer may designate its (and its Affiliates’) employees or independent contractors as its Customer Users; provided, that (i) Customer remains responsible for all use and misuse of the Self-Service Solution that occurs under Customer Users’ login credentials and for any breach of this Agreement by any of its Customer Users, (ii) Customer agrees to notify UserZoom of any unauthorized access or use of which Customer becomes aware, and (iii) all usage of the Self-Service Solution by Customer Users is subject to the Scope of Use limitations set forth in the Order Form.

    c.
  1. Customer will not (and will ensure that Customer Users do not): (i) “frame,” distribute, resell, or permit access to the Self-Service Solution by any third party other than to invite Participants to participate in Studies in accordance with this Agreement; (ii) permit multiple Customer Users to access the Self-Service Solution using shared login credentials; (iii) use the Self-Service Solution other than in compliance with this Agreement and applicable laws; (iv) reverse engineer, attempt to gain unauthorized access to the Self-Service Solution or attempt to discover the underlying source code or structure of the Self-Service Solution; (v) submit to the Self-Service Solution any content or data that is false, defamatory, illegal or violates a third party’s rights; or (vi) submit to the Self-Service Solution any routine, device or other undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, system or service.

    d.
  1. UserZoom monitors all use of the Self-Service Solution for security, operational, product improvement and product performance purposes. UserZoom may temporarily suspend a particular Customer User’s access in the event that: (i) such Customer User is engaged in, or UserZoom in good faith suspects that such Customer User is engaged in, any unauthorized conduct; or (ii) there has been unauthorized access to such Customer User’s account. UserZoom will provide Customer with prompt notice if it suspends a Customer Users’ access to the Self-Service Solution pursuant to this Section 3(d) and will restore access as soon as reasonably practicable once the situation is remedied.

4.

Customer Responsibilities

    a.
  1. Customer acknowledges that, in order to access the Self-Service Solution, its networks, equipment, software and services used to access the Self-Service Solution must comply with the operating system, browser and internet requirements available at http://www.userzoom.com/system-requirements/, as UserZoom may update them from time to time (the “System Requirements”).

    b.
  1. Customer shall ensure that each Customer User will keep his or her account name and password confidential and notify UserZoom immediately upon learning of any unauthorized use of a Customer User account name or password. Customer will be responsible for all activities and charges incurred through the use of its Customer Users’ account names and passwords.

    c.
  1. The Self-Service Solution includes a feature that allows Customer to record a Participant’s activity on a web site or application tracked as part of a Study (“UserZoom Recorder”). If Customer uses UserZoom Recorder to collect any information from Participants sourced by Customer, Customer is responsible to obtain the necessary consents from and disclose to Participants the information that Customer will collect, how Customer will use that information, and make any other disclosures required by the Data Protection Legislation. For the avoidance of doubt, any Participants sourced via UserZoom will have provided such consent prior to taking part in Studies.

5.

Customer Content

    a.
  1. As between the parties, Customer retains all right, title and interest in: (i) any and all data, files, attachments, text, images, and other content that Customer Users upload or submit to the Self-Service Solution or otherwise provides to UserZoom in connection with the Services (collectively, “Customer Content”); and (ii) the reports and information about Studies obtained by Customer from UserZoom as part of the Services (“Study Content”). Customer represents and warrants that it has all rights, permissions and consents necessary to (1) submit all Customer Content (excluding survey answers and other data and content submitted to the Self-Service Solution by Participants) to UserZoom, (2) grant UserZoom the limited rights to use Customer Content set forth in this Agreement, and (3) disclose and display Customer Content to its Customer Users and Participants.

    b.
  1. Customer agrees that UserZoom may use the Customer Content and Study Content to make the Services available to Customer in accordance with this Section 5, including without limitation by displaying Customer Content to Participants and Customer Users. Further, notwithstanding Section 9, UserZoom may make Customer Content available on a confidential basis to UserZoom’s service providers who act on UserZoom’s behalf in providing the Self-Service Solution; provided, that such (i) service providers are subject to confidentiality obligations substantially as protective of the Customer Content as this Agreement and (ii) UserZoom will be responsible for any breach of this Agreement by such service providers.

    c.
  1. The Self-Service Solution includes a feature that allows Customer to download Customer Content and Study Content during the applicable Subscription Period. UserZoom will retain Customer Content and Study Content for six (6) months after expiration or termination of the relevant SOW or Order Form (the “Retention Period”) and, upon Customer’s written request during this Retention Period, will deliver Customer Content and Study Content to Customer. After the Retention Period (or as soon as reasonably possible after Customer’s written request during the Retention Period), UserZoom will permanently delete Customer Content and Study Content from its systems.

    d.
  1. Customer agrees that it will not solicit contact information from UserZoom-provided study Participants sourced by UserZoom, or contact such Participants outside of the specific study for which such Participants were sourced.

    e.
  1. Customer agrees to not collect or attempt to collect, or otherwise solicit through the Self-Service Solution and/or its use thereof, any Personal Information (as defined below) that may be of a “sensitive” nature or otherwise regulated by data specific privacy laws or subject to special processing restrictions or requirements, including without limitation: bank account or card information, credit information, social security numbers or other government-issued identification numbers or information, protected health information or records (e.g., under HIPAA), educational records or information (e.g., under FERPA), and any other information regulated by GLBA, FCRA or COPPA (the foregoing, “Prohibited Personal Information”). If Customer discovers that any Prohibited Personal Information has been submitted to the Self-Service Solution, Customer will immediately notify UserZoom of such disclosure, and upon UserZoom’s receipt of such notification, the parties shall promptly work together and cooperate in good faith to comply with Data Protection Legislation with respect to such information. Customer acknowledges the risks inherent in respect of Prohibited Personal Information, and Customer disclaims all liability against UserZoom for any claims, causes of action, damages, judgments, settlements, and costs asserted by a third party or Customer as a result of the collection, use, transfer, or other processing of Prohibited Personal Information. 

6.

Security and Data Privacy

    a.
  1. Customer shall at all times be data controller and UserZoom data processor (both as defined under the Data Protection Legislation) of any Personal Information generated, transferred, processed or otherwise reproduced under this Agreement or any Order Form.

    b.
  1. UserZoom maintains a formal security program that complies with the Data Protection Legislation, and is designed to: (i) ensure the security and integrity of Customer Content and Study Content, including but not limited to any Personal Information included therein; (ii) protect against threats or hazards to the security or integrity of Customer Content and Study Content, including but not limited to any Personal Information included therein; and (iii) prevent unauthorized access to Customer Content and Study Content, including but not limited to any Personal Information included therein. UserZoom also implements and maintains the backup and recovery measures for Customer Content stored on the Self-Service Solution. Details are set forth in the SaaS Delivery Services Exhibit.

    c.
  1. If UserZoom becomes aware of a security incident that may affect Customer Content or Study Content, UserZoom will promptly (in any event within 48 hours) notify Customer (which may be given via email to Customer’s Administrator). If such security incident involves Personal Information that Customer has previously notified UserZoom was included in the Customer Content or Study Content, UserZoom shall cooperate with Customer in providing notice to the individuals and government authorities as required by the Data Protection Legislation. In the event of a security incident, UserZoom shall use its commercially reasonable efforts to: (i) conduct an investigation of the reasons for and circumstances surrounding the incident; (ii) prevent, contain and mitigate the impact of the incident; and (iii) collect and preserve all evidence concerning the discovery, cause, remedial actions and impacts related to the incident.

    d.
  1. Customer agrees to obtain or cooperate with UserZoom to obtain the Participant’s express consent before collecting any information that can be used to identify a particular individual, including but not limited to, name, date of birth, social security number, email, postal address, phone number and any other information that, either alone or in combination with other data, could be used to identify or contact a particular person (“Personal Information”). Customer agrees that it will not use Personal Information for any purpose beyond the intended limited scope of this Agreement and that Customer will not use Personal Information to contact a Participant outside of the Self-Service Solution.

    e.
  1. In addition to any other requirements described in Section 9, each of Customer and UserZoom shall, as applicable, maintain reasonable technical and security measures consistent with this Agreement to protect Personal Information collected in connection with this Agreement from unauthorized access, use, disclosure, alternation, possession, loss, theft, manipulation, and destruction (“Unauthorized Access”). Such security measures will conform to applicable privacy policies, if any, and with the Data Protection Legislation, privacy laws, rules, and regulations. In addition, each party shall:

    ⅰ.
  1. Notify the other party as soon as practicable (in any event within 48 hours) of any Unauthorized Access of Personal Information associated with Studies, including without limitation exceeding authorized access to or use of any Personal Information;

    ⅱ.
  1. Assist with and ensure that any breach of Data Protection Legislation is notified to the relevant regulatory authority (including the Information Commissioner’s Office) within 72 hours;

    ⅲ.
  1. Agree whether to notify, as applicable, any Participant(s) about the relevant data breach, including any actions taken to mitigate loss or further damage to the relevant Participant(s);

    ⅳ.
  1. Notify the other party within 48 hours of any subject access request by an individual and cooperate with the other party to ensure that such request is acknowledged and responded to within regulatory time limits; and

    ⅴ.
  1. Keep accurate and up to date records of any data processing activities to include individual requests for information, data breaches or any Unauthorized Access attempts or use of Personal Information.

7.

Fees and Payment Terms

    a.
  1. Customer shall pay UserZoom the annual subscription fees listed on each Order Form (“Subscription Fees”) in accordance with the terms contained therein. If Professional Services are required in connection with Customer’s access of the Self-Service Solution, Customer shall pay UserZoom the Professional Services fees outlined in the applicable Order Form or SOW, as the case may be, in accordance with the terms contained therein and shall pay any and all reasonable out-of-pocket expenses incurred by UserZoom in connection with the provision of such Professional Services, including but not limited to travel to Customer premises. Prepaid Professional Services also may be included as part of the bundled Subscription Fees pursuant to the applicable Order Form.

    b.
  1. Except as otherwise provided in an Order Form, all fees are invoiced annually in advance at the beginning of each year of the applicable Subscription Period, and invoices are payable net 30 days from invoice date. Fees payable under this Agreement do not include local, state or federal taxes or duties of any kind, all of which are the responsibility of Customer (except for taxes based on UserZoom’s income). Customer will send payments to the payment address specified on each invoice or as otherwise instructed by UserZoom. Unless otherwise provided in an Order Form, all amounts under this Agreement are payable in U.S. dollars (if the entity referred to herein as “UserZoom” is User Zoom, Inc.) or either GBP or Euros (if the entity referred to herein as “UserZoom” is UserZoom Limited) and, except as expressly otherwise provided herein or in the Order Form, all fees are nonrefundable once paid. Fees are based on Services ordered and not actual usage thereof. Research hours or participant credits purchased by the Customer that have not been used prior to the expiry or termination of a subscription period shall be capable of being carried over to future subscription periods the Customer places with UserZoom, subject to a maximum of 500 research hours and participant credits combined.

    c.
  1. If a payment for an undisputed invoice is not received by UserZoom by the due date and such failure to pay is not reasonably disputed in good faith or remedied within 15 days of Customer’s receipt of notice thereof from UserZoom, UserZoom may, at UserZoom’s sole discretion, temporarily suspend Customer’s access to the Self-Service Solution and provision of the Related Services until all payments currently due from Customer are received by UserZoom.

8.

Term and Termination

    a.
  1. Unless earlier terminated in accordance with the terms hereof, this Agreement will commence on the Effective Date and will continue until either party gives to the other party written notice to terminate (with termination being effective upon such other party’s receipt of such notice), provided that there are no Order Form(s) or SOW(s) then in effect (the “Term”). Notwithstanding the foregoing, if there are Order Form(s) or SOW(s) being contemplated by the parties but which have not yet been executed prior to termination in accordance with the immediately preceding sentence, the terms and conditions of this Agreement shall govern and survive until the expiration or earlier termination of such Order Form(s) or SOW(s).

    b.
  1. Subscriptions to use the Self-Service Solution begin on the Subscription Start Date specified in the relevant Order Form(s) and continue for the Subscription Period set forth therein. In the event of termination or expiration of an Order Form or SOW, this Agreement shall continue to apply to any other Order Forms or SOWs still in effect. If applicable, the Subscription Period may automatically renew for additional successive period(s) in accordance with the terms stated on the relevant Order Form.

    c.
  1. Either party may terminate this Agreement or the applicable Order Form or SOW upon written notice to the other if the other party commits a material breach of its obligations hereunder and the breaching party fails to cure such breach within 30 days following its receipt of written notice specifying the breach (or 15 days in the case of non-payment). If Customer validly terminates an Order Form or the Agreement for breach by UserZoom that remains uncured after 30 days, Customer shall be entitled to receive a refund of any prepaid Subscription Fees in an amount pro rated to reflect the period of time between the date the uncured breach occurred and the end of the period for which Customer has prepaid for such use. Similarly, if UserZoom validly terminates an Order Form, SOW or this Agreement for breach by Customer that remains uncured after 30 days (or 15 days in the case of non-payment), Customer shall pay any and all unpaid fees covering the remainder of the committed Subscription Period under all impacted Order Forms, and any and all committed fees under all impacted SOWs.

    d.
  1. Upon termination or expiration of this Agreement for any reason, all access rights granted to Customer hereunder shall immediately terminate and each party shall promptly return to the other party all copies and originals of documents and other materials that contain or embody the other party’s Confidential Information (as defined below) that are in its possession, and all forward obligations shall cease, except that Customer shall be obliged to pay all amounts: (i) under any and all Order Forms terminated by UserZoom, and (ii) for services rendered prior to termination by Customer. Sections 3(c), 5, 7 through 14, and 16 shall survive termination. 

9.

Confidentiality.

As used herein, the “Confidential Information” of a party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other party (“Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The terms and conditions of this Agreement are the Confidential Information of each party, Customer Content and Study Content are Customer’s Confidential Information, and the System Requirements, and Documentation for the Self-Service Solution are UserZoom’s Confidential Information. Except as expressly permitted in this Agreement, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its accountants, attorneys, auditors, consultants, employees and professional advisors in connection with this Agreement, provided that such parties have entered into written confidentiality obligations with Receiving Party that are no less stringent than those contained herein. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law or a regulatory body, provided that the Receiving Party: (i) gives the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (ii) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (iii) allows the Disclosing Party to participate in the proceeding. Confidential Information does not include any information that: (x) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (y) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (z) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party. The Receiving Party will return or destroy all Confidential Information upon the Disclosing Party’s request after the termination or expiration of this Agreement and (if requested by the Disclosing Party) certify such return or destruction in writing.

10.

Intellectual Property Rights.

UserZoom and its licensors retain all right, title and interest in and to (a) the Self-Service Solution, the Software and the other technology used to provide it, (b) all electronic and print documentation, audio and video material, and other content and data (excluding Customer Content and Study Content) made available through the Self-Service Solution or Related Services, (c) all software code and other materials, ideas or deliverables that are created or prepared by UserZoom in connection therewith, including any customizations of the Self-Service Solution (but excluding any Customer Content, Study Content, or other Confidential Information of Customer incorporated therein), and (d) all intellectual property and proprietary rights in the foregoing. Except for Customer’s rights to access and use the Self-Service Solution set forth in this Agreement, nothing in this Agreement licenses or conveys any of UserZoom’s intellectual property or proprietary rights to anyone, including Customer. Customer agrees that UserZoom will have a perpetual right to use and incorporate into its Software Services any feedback or suggestions for enhancement that Customer, Customer Users or Participants provide to UserZoom concerning the Self-Service Solution without any obligation or compensation.

11.

Warranties

    a.
  1. UserZoom will perform Professional Services in a professional, workmanlike manner in compliance with industry standards. Customer’s sole remedy for breach of this warranty shall be for UserZoom to re-perform non-conforming Professional Services.

    b.
  1. UserZoom warrants to Customer during the applicable Subscription Period of a particular Order Form that the Self-Service Solution will operate in substantial accordance with its then-current Documentation. The foregoing warranty shall not apply to performance issues: (i) caused by factors outside of UserZoom’s reasonable control; (ii) that result from any actions or inactions of Customer or any third parties; or (iii) that result from Customer’s operating environment or systems. Customer’s sole remedy for UserZoom’s breach of this warranty shall be that UserZoom shall be required to use commercially reasonable efforts to modify the Self-Service Solution to achieve in all material respects the functionality described in the Documentation. If UserZoom is unable to restore such functionality as warranted within a reasonable time considering the severity of the error and its impact on Customer, Customer shall be entitled to terminate the relevant Order Form, in which case Customer shall be entitled to receive a refund of any prepaid Subscription Fees in an amount pro rated to reflect the period of time between the date Customer was unable to use the Self-Service Solution due to such non-conformity and the end of the period for which Customer has prepaid for such use. UserZoom shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of the first instance of any material functionality problem.

12.

DISCLAIMERS.

EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN SECTION 11 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ORDERED SOFTWARE SERVICE(S) AND RELATED SERVICES PROVIDED BY OR ON BEHALF OF USERZOOM ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USERZOOM DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. USERZOOM DOES NOT WARRANT THAT ACCESS TO THE SELF-SERVICE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SELF-SERVICE SOLUTION WILL MEET CUSTOMER’S NEEDS.

13.

Indemnification

    a.
  1. If any action is brought against Customer claiming that the Self-Service Solution infringes any patent issued as of the Effective Date or any copyright, trademark or trade secret of a third party, UserZoom will indemnify, defend and hold Customer harmless from and against any and all damages, losses, liabilities, settlements, costs and expenses (including without limitation reasonable costs and attorneys’ fees) (“Losses”) to the extent incurred by Customer in connection with any such infringement claim; provided, that UserZoom will not be obligated under this sentence to the extent any such infringement arises from (a) use of the Self-Service Solution in combination with technology or services not provided by UserZoom, (b) violation of Section 3(c), or (c) Customer Content. UserZoom’s obligations hereunder are subject to the following: (x) Customer must notify UserZoom within a reasonable time of Customer’s learning of the claim (however lack or delay of notice shall not excuse UserZoom’s indemnification obligations except to the extent such lack or delay caused material prejudice to UserZoom); (y) UserZoom shall have sole control over the defense of the claim, including appeals and all negotiations, settlements or compromises; and (z) Customer shall provide UserZoom with reasonable assistance, information, and authority necessary to perform the above. Customer may be represented, at Customer’s expense, by counsel of Customer’s selection. If an infringement claim described in this Section has been asserted, Customer will permit UserZoom, at UserZoom’s option, to: (i) procure the right to continue using the allegedly infringing item; (ii) replace or modify the allegedly infringing item to eliminate the infringement while providing functionally equivalent performance; or (iii) if either of the above is not commercially reasonable, terminate the affected Order Form and refund to Customer a pro-rated amount of any prepaid Subscription Fees relating to the Self-Service Solution based on the period of time between the date Customer was unable to use the Self-Service Solution and the end of the period for which Customer has prepaid for such use. 

    b.
  1. In the event Customer Content or Study Content is alleged to or does infringe or violate any intellectual property right or other legal right of any third party, Customer will indemnify and hold UserZoom harmless from and against any and all Losses incurred by UserZoom resulting therefrom provided, that Customer will not be obligated under this sentence to the extent any such infringement arises from unauthorised use of the Customer Content or Study Content. Customer’s obligations hereunder are subject to the following: (x) UserZoom must notify Customer within a reasonable time of UserZoom’s learning of the claim (however lack or delay of notice shall not excuse Customer’s indemnification obligations except to the extent such lack or delay caused material prejudice to Customer); (y) Customer shall have sole control over the defense of the claim, including appeals and all negotiations, settlements or compromises; and (z) UserZoom shall provide Customer with reasonable assistance, information, and authority necessary to perform the above. UserZoom may be represented, at UserZoom’s expense, by counsel of UserZoom’s selection.

14.

LIMITATIONS ON LIABILITY.

EXCEPT FOR LIABILITIES ARISING UNDER SECTIONS 3(C), 9 AND 10, AND FOR CLAIMS FOR INDEMNIFICATION UNDER SECTION 13, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE OR LOSS OF DATA OR (B) THE MAXIMUM AGGREGATE LIABILITY THAT EITHER PARTY MAY INCUR IN ANY ACTION OR PROCEEDING RELATING HERETO EXCEED THE AMOUNTS ACTUALLY PAID OR OWING TO USERZOOM HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.

15.

Insurance.

If the entity referred to herein as “UserZoom” is User Zoom, Inc., then UserZoom will, at its expense, procure and maintain throughout the Term the following insurance coverage: (a) Worker’s Compensation insurance in compliance with all applicable legal requirements; (b) Commercial General Liability insurance with limits of at least $2,000,000 each occurrence; (c) Automobile insurance with limits of $1,000,000 each occurrence; (d) Umbrella policy with limits of $4,000,000 in the aggregate and each occurrence; and (e) Professional Liability or E&O insurance with limits of no less than $2,000,000 per occurrence, including Cyber Liability. If the entity referred to herein as “UserZoom” is UserZoom Limited, then UserZoom will, at its expense, procure and maintain throughout the Term the following insurance coverage: (i) Employer’s Liability insurance in compliance with all applicable legal requirements (with a minimum coverage of £5,000,000); (ii) Public and products liability policy with limits of £2,000,000 in the aggregate and each occurrence; and (iii) Professional indemnity insurance with limits of no less than £5,000,000 per occurrence. Upon request, UserZoom will provide certificates of insurance evidencing coverage in compliance with the requirements of this Section 15. UserZoom will give Customer, or cause its insurers to give Customer, at least thirty (30) days’ prior written notice of cancellation or non-renewal of any insurance policy that provides any of the coverage specified in this Section 15.

16.

Miscellaneous

    a.
  1. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof. If any provision in this Agreement is unenforceable, it will be deemed reformed to the nearest enforceable provision, or severed from this Agreement if that is impermissible, and the remainder of this Agreement will remain in full force and effect. Failure to enforce a provision in this Agreement will not constitute a waiver of that provision, and a waiver of a provision will be binding only if made in writing by the waiving party.

    b.
  1. Except where this Agreement permits notice via email, all notices under this Agreement must be in writing and delivered by hand or by pre-paid first class post to the registered office of the other party, and shall be deemed served; (a) on signature if delivered by hand; (b) at 9:00am on the second business day after posting; or (c) if sent by email, at the time of transmission, or, if this time falls outside of business hours, at 9:00am the following business day in the location of receipt.

    c.
  1. Neither party may assign, transfer or delegate any of the rights or obligations under this Agreement without the prior written consent of the other party; provided, that either party may assign this Agreement and all Order Forms and SOWs to an entity that has acquired all or substantially all of its assets or capital stock as successor to the business and, provided further, that any assignment by Customer shall be subject to the Scope of Use contained in the applicable Order Form. Any attempted assignment in violation of the terms of this Agreement shall be void and of no force or effect. 

    d.
  1. Neither party may vary the terms of this Agreement or an individual Order Form or SOW unless documented in writing signed by an authorized signatory of each party (in the case of an SOW or Order Form, the parties must follow the process outlined in Section 1(c) above).

    e.
  1. Each of the parties hereto is an independent contractor and neither party is an agent, distributor, or representative of the other. The employees of one party will not be deemed to be employees of the other party. Neither party will act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

    f.
  1. This Agreement shall be governed by and construed in accordance with (a) the laws of the State of California, U.S.A., if the entity referred to herein as “UserZoom” is User Zoom, Inc., and (b) the laws of England and Wales, if the entity referred to herein as “UserZoom” is UserZoom Limited; and, in any event, without regard to the conflict of laws principles of the applicable governing law. In the event of any action for the breach of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses incurred in connection with such action. 

    g.
  1. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument.