LEARN TO WIN TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS (the “​Agreement​”) ARE ENTERED INTO BETWEEN LEARN TO WIN, INC. (“​Learn to Win​” or “​Company​”) AND THE COMPANY IDENTIFIED AS THE CUSTOMER ON AN ORDER FORM (“​Customer​”). THIS AGREEMENT TAKES EFFECT ON THE DATE WHEN IT IS ACCEPTED BY SIGNING CUSTOMER’S ORDER FORM (“​Effective Date​”). THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF SUCH PERSON DOES NOT HAVE SUCH AUTHORITY, OR IF SUCH PERSON DOES NOT AGREE WITH THIS AGREEMENT, THEN SUCH PERSON MUST NOT ACCEPT THIS AGREEMENT ON CUSTOMER’S BEHALF.

ARBITRATION NOTICE​. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 12.6, CUSTOMER AGREES THAT DISPUTES ARISING UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THIS AGREEMENT, CUSTOMER AND LEARN TO WIN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. CUSTOMER AGREES TO GIVE UP ITS RIGHT TO GO TO COURT TO ASSERT OR DEFEND ITS RIGHTS UNDER THIS AGREEMENT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). CUSTOMER’S RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.

1. DEFINITIONS

  1. 1.1  “​Administrator​” means any designated Authorized User authorized to use the Enterprise Tools on Customer’s behalf.
  2. 1.2  “​Authorized User​” means any of Customer’s employees or contractors, in each case who are authorized to use the

Services on Customer’s behalf.

1.3 “​Customer Content​” means any content uploaded by Customer to the Hosted Services, including photos, video, images, folders, data, text, and other types of works.

1.4 “​Enterprise Tools​” means enterprise applications and services, including without limitation Customer Content management, user management, and generating custom microlearning programs and learning analytics, available to Customer via an administrator version of the Hosted Services (as defined below).

  1. 1.5  “​Hosted Services​” means Company’s proprietary software-as-a-service platform for microlearning training programs.
  2. 1.6  “​Services​” means any and all Enterprise Tools, Hosted Services, and the Mobile Application.
  3. 1.7  “​Mobile Application​” means the mobile applications related to the Hosted Services to be provided to Customers’ End

Users under this Agreement.

1.8 “​Professional Services​” means any consulting services ordered by Customer pursuant to a statement of work executed between the parties, from time to time.

1.9 “​Support Services​” means the technical support and software maintenance services provided by Company.

2. SERVICES

2.1 Enterprise Tools and Hosted Services​. Subject to Customer’s ongoing compliance with the terms of this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to allow:

2.1.1 Administrators to access and use the Enterprise Tools, solely for Customer’s internal business purposes. 2.1.2 Authorized Users to access and use the Hosted Services, solely for Customer’s internal business

purposes.

2.2 Mobile Application​. Subject to Customer’s ongoing compliance with this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the applicable Subscription Term to allow Authorized Users to install and run the Mobile Application in object code form only on a mobile device controlled by Customer or such Authorized user, solely for internal business purposes in connection with enabling secure access to Hosted Services.

2.3 Authorized Users​. Customer is responsible for: (a) identifying and authenticating all Authorized Users, (b) approving access by such Authorized Users to the Services, (c) controlling against unauthorized access by Authorized Users, (d) maintaining the confidentiality of usernames, passwords and account information, and (e) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts as a result of Customer’s or Customer’s Authorized Users’ access to the Services. Company is not responsible for any harm caused by Customer’s Authorized Users. Customer will notify Company immediately of any unauthorized use. Customer is solely responsible for ensuring compliance with this Agreement by its Authorized Users and any breach of this Agreement by an Authorized User will be deemed a breach by Customer.

2.4 Restrictions​. Customer shall not (and will ensure its Authorized Users do not), directly or indirectly, and shall not authorize any third party to, (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements of the Mobile Application or Hosted Services (except to the extent expressly permitted by applicable law); (ii) translate, adapt, or modify the Application or Hosted Services, or any portion of any of the foregoing; (iii) write or develop any program based upon the Mobile Application, the Hosted Services, or any portion thereof, or otherwise use the Services in an manner for the purpose of developing products or services that compete with the Services; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights thereto; (v) use the Services for the benefit of, or allow access to the Services by, unauthorized persons; (vi) transmit unlawful, infringing or harmful data or code to or from the Hosted Services; (vii) alter or remove any trademarks or proprietary notices contained in or on the Mobile Application or Hosted Services; (viii) circumvent or otherwise interfere with any authentication or security measures of the Hosted Services, or otherwise interfere with or disrupt the integrity or performance thereof; (ix) use the Services in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; or (x) otherwise use the Services or any Company IP (as defined below) except as expressly permitted hereunder. Company may, but is under no obligation to, monitor Customer’s use of the Hosted Service. Company may suspend Customer or any of its Authorized User’s access to the Mobile Application or Hosted Service for any period during which Customer or its Authorized User(s) is, or Company has a reasonable basis for alleging Customer is, in noncompliance with this Section.

2.5 Third-Party Components​. Customer is solely responsible for obtaining all third-party hardware, software, and connectivity necessary to operate the Mobile Application and access and use the Hosted Services (“​Third-Party Components​”), and Company will have no maintenance, support, warranty, or other obligations or liability regarding such Third-Party Components, whether or not Company has provided specifications for such Third-Party Components. In particular, Customer acknowledges that a high-speed Internet connection is required at all times in order for the Services to operate properly and that Company will not be obligated to provide Support Services to the extent that such high-speed connection is not in operation, although all fees for such Support Services will continue to accrue during any such connectivity outage.

3. PROFESSIONAL SERVICES

3.1 Professional Services​. Company will use commercially reasonable efforts to perform the Professional Services in accordance with any specifications set forth in the Order Form or any statement of work executed by the parties, including without limitation. Customer will reasonably cooperate with Company to facilitate provision of Professional Services. This cooperation will include, without limitation, (i) performing any tasks reasonably necessary for Company to provide the Professional Services; (ii) fulfilling any obligations described the applicable Order Form in a timely manner; and (iii) responding to Company’s reasonable requests for information related to Professional Services in a timely manner.

3.1.1 Customer hereby grants to Company a non-exclusive, worldwide and royalty-free license during the Subscription Term to use the Customer’s trademarks, name, logos and other indicators of origin provided to Company in writing (collectively, “​Customer’s Marks​”) in connection with the provision of the Professional Services.

3.2 Support S​ervices​. Subject to Customer’s ongoing compliance with the terms of this Agreement (including timely payment of all applicable fees), Company agrees to (a) provide reasonable technical support to Customer, by email or telephone, during Company’s normal business hours of 9am-5pm PST, excluding US holidays; and (b) use commercially reasonable efforts to respond to support requests in a timely manner, and to resolve such issues by providing updates and/or workarounds to Customer, consistent with the severity of the issues identified in such requests and their impact on Customer’s business operations, in Company’s reasonable discretion.

3.3 Service Levels​. Customer may be entitled to service level credits in connection with reduced availability of the Hosted Services. Company’s sole and exclusive obligations with respect to availability of the Hosted Service, and Customer’s sole and exclusive remedy in connection therewith (if applicable), are set in the Service Level Agreement.

4. CUSTOMER DATA AND CONTENT

4.1 Customer Data​. Any non-public data submitted by Customer or otherwise made available to Company via the Services is “​Customer Data​.” However, Customer Data does not include any information that is data independently derived by Company through analysis of the Customer Data or Usage Data (as defined below), to the extent such derived data does not itself contain Customer Data. Company will implement commercially reasonable measures to secure the Hosted Services against unauthorized access to or alteration of Customer Data; provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Hosted Services and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer Data.

4.2 Customer Data License​. Customer hereby grants to Company a worldwide, irrevocable, perpetual, royalty-free license (i) to use all Customer Data and other data made available to Company or transmitted through the Services by or on behalf of Customer to perform Company’s obligations hereunder; and (ii) to use any non-personally identifiable information related to Customer’s use of the Services (“​Usage Data​”) to improve Company’s products and services. Customer will (a) obtain all permissions or approvals from each Authorized User as necessary for Customer to provide Customer Data to Company, and (b) comply with all laws applicable to Customer’s provision of Customer Data.

4.3 Customer Content. ​By providing Customer Content to or via the Hosted Service, Customer grants Company a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute the Customer Content, in whole or in part, to Authorized Users of the Hosted Services including via the Mobile Application.

5. FEES; PAYMENT

5.1 Fees​. For each Subscription Term (defined below), Customer will pay Company all applicable fees of the type and amount set forth on the applicable Order Form, which may include, without limitation, subscription fees, license fees, professional services fees, and support fees (“​Fees​”). All Fees are non-refundable.

5.2 Authorization​. Customer authorizes Company or its third party payment processors to charge all sums for Services, including all applicable taxes, to the payment method specified in Customer’s account. Company or its third party payment processors may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.

5.3 Payment Terms​. Fees are due on a periodic basis specified in the applicable Order Form. Customer authorizes Company or its third party payment processor to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer’s account, all Fees on or before the payment due date for those Fees. Customer must cancel Customer’s subscription before it renews in order to avoid billing of the next periodic Fee to Customer’s account. Customer may cancel its subscription by contacting us at sales@learntowin.us​.

6. TERM AND TERMINATION

6.1 Term. This Agreement will begin on the Effective Date and will continue for the initial subscription term stated in the applicable Order Form, the term will automatically renew for immediately successive terms of the same length (each such term, collectively and individually, the “​Subscription Term​”), unless either party cancels such subscription prior to the expiration of the applicable Subscription Term.

6.2 Termination for Material Breach​. Company may terminate this Agreement by written notice if Customer is in material breach of this Agreement, provided that, for material breaches capable of cure, Customer will have 10 days after receipt of notice to cure such material breach.

6.3 Termination for Convenience​. Customer may terminate this Agreement at any time by providing notice to Company at sales@learntowin.us, provided that no such termination by Customer will entitle Customer to a refund of any portion of the Fees.

6.4 Effect of Termination​. Upon the effective date of expiration or termination of this Agreement for any reason: (i) the licenses granted to Customer in Sections 2.1 and 2.2 will automatically terminate; (ii) Customer must and shall ensure that all Authorized Users immediately cease use of the Hosted Services and delete any copies of the Mobile Application within its possession or control and certify in writing the same has been completed; (iii) all outstanding payment obligations of Customer will become due and payable immediately; (iv) each party will promptly return or destroy any Confidential Information of the other party then in its possession or control. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.3, 2.4, 5 (with respect to Fees due), 6.4, and 7 through 12.

7. CONFIDENTIALITY

7.1 Definition​. “​Confidential Information​” means all nonpublic information disclosed by a party (“​Disclosing Party​”) to the other party (“​Receiving Party​”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, the Company IP (as defined in Section 8.1) and Usage Data (as defined in Section 4.2) are Company’s Confidential Information. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

7.2 Use; Maintenance​. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). In addition, (i) the Receiving Party will only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement; and (ii) except as otherwise authorized by the Disclosing Party expressly in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees and agents who need such access to perform obligations under this Agreement and who are bound by confidentiality obligations substantially similar to those set forth in this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

8. PROPRIETARY RIGHTS; FEEDBACK

8.1 Reservation of Rights​. Company owns and retains all rights, title and interest, including all intellectual property rights, in and to (i) the Services and Company’s Confidential Information; and (ii) the Usage Data (“​Company IP​”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Company IP are granted to Customer, and all such rights are expressly reserved by Company. Without limiting the foregoing, if Company performs any Professional Services under this Agreement, Company will own and retain all right, title and interest, including all intellectual property rights, in and to any work product or deliverables developed in connection with such Professional Services, all such work product or deliverables will be included in the definition of Company IP.

8.2 Customer Ownership​. As between the parties, Customer owns the Customer’s Marks, Customer Content and Customer Data.

8.3 Feedback​. If Customer or any Authorized User provides comments, suggestions, ideas, or other information or materials regarding the Services (“​Feedback​”) to Company, Company may use, modify, and incorporate such Feedback to improve or enhance the Services or its other products and services, and Customer hereby grants to Company a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction and without any obligation to provide attribution or compensation to Customer.

8.4 Government Rights​. Company provides the Services, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The government hereby agrees that the Services qualifies as “commercial” computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Company to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

9. REPRESENTATIONS AND WARRANTIES

9.1 Mutual​. Each party represents and warrants to the other party: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) this Agreement constitutes a valid, binding, and enforceable obligation upon it; and (c) it has the full right, power, and authority to enter into and perform its obligations under this Agreement.

By Customer​. Customer represents, warrants and covenants to Company that (a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data and Customer Content so that, as received by Company and used in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or privacy rights of any third party or violate any applicable laws; (b) Customer will provide all required notices and obtain all required consents from Authorized Users to allow Company to provide such Authorized Users with the Hosted Services, including without limitation with respect to electronic communication regulations. Customer agrees and acknowledges that it is solely responsible for the Customer Content and the consequences of providing Company Content via the Hosted Service, including the accuracy integrity and legality thereof.

10. INDEMNIFICATION

10.1 By Company​. Company will (a) defend, or at its option, settle, any third-party claim brought against Customer alleging that Customer’s use as authorized in this Agreement of a Service infringes a third party’s intellectual property or proprietary rights (a “​Claim​”), and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Company; provided that Customer provides Company (i) prompt written notice of, (ii) sole control over the defense and settlement of, and (iii) all information and assistance reasonably requested by Company in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Company may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Service; (x) modify the Service to make it non-infringing; (y) replace the affected aspect of the Service with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, Company will have no liability to Customer (1) for any claim arising out of or based upon modifications of the Service not performed by Company; Third-Party Components; or use of the Service in combination with software, products or services not provided by Company; to the extent that the Service would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Service in accordance with this Agreement; or (3) for any claims related to Customer Data or Customer Content. THIS SECTION 10.1 STATES THE ENTIRE LIABILITY OF COMPANY, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY COMPANY, THE SERVICE OR OTHER COMPANY IP, OR ANY PART THEREOF.

10.2 By Customer​. Customer will defend, or at its option, settle any claim brought against Company or its affiliates or their employees or agents: (i) alleging that the use by or on behalf of Company of the Customer Data or Customer Content infringes or misappropriates any third party’s rights or violates any laws; (ii) arising out of any alleged breach by Customer or any Authorized User of this Agreement; or (iii) arising from Customer or any Authorized User’s violation of any applicable laws. Customer will pay all damages finally awarded against Company (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Company agrees to provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Company may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to Customer.

11. DISCLAIMER; LIMITATION OF LIABILITY

11.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, USE, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY COMPANY THROUGH THE SERVICE WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES. COMPANY SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY COMPONENTS, PRODUCTS, OR SERVICES PROVIDED WITH THE COMPANY SERVICES AND FOR THE AVAILABILITY OR CUSTOMER’S USE OF ANY DATA OR INFORMATION STORED ON THE SERVICE.

11.2 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS AND A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY IN CONTRACT OR TORT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

12. GENERAL PROVISIONS

12.1 Force Majeure; Delays​. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, epidemic, pandemic, or failure or degradation of the Internet. Company is not responsible for liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform any of its obligations under the Agreement.

12.2 Publicity. Company may use Customer’s name as a reference for marketing or promotional purposes on Company’s website and in other communication with existing or potential Company customers, subject to any written trademark policies Customer may provide Company in writing, with reasonable advanced notice.

12.3 Export Controls​. Customer agrees to comply with all applicable export control laws and regulations related to its use of Company IP.

12.4 Notices​. Any notices required or permitted under this Agreement must be submitted to (i) the mailing address or email address on file with Company, in the case of Customer or (ii) sales@learntowin.us in the case of Company. ​Each notice will be deemed delivered on the date the sender can reliably confirm the notice was sent.

12.5 Arbitration​. The parties will resolve all disputes arising under or in connection with this Agreement through confidential binding arbitration. A party intending to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“​AAA​”). The arbitration will be conducted in English in San Mateo County, California, USA by one arbitrator selected in accordance with the applicable rules of the AAA for. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. This Section 12.5 will not prohibit either party from: (a) bringing an individual action in small claims court; (b) seeking injunctive relief in a court of competent jurisdiction; (c) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available, or (d) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 12.5 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 12.6 will govern any action arising out of or related to this Agreement.

12.6 Miscellaneous​. Customer may not assign this Agreement without Company’s prior express written consent. Company may assign this Agreement freely in its sole discretion. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement is governed by and construed under the laws of the State of California. If a lawsuit or court proceeding is permitted under this Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in San Mateo County, California. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter, whether oral or written, express or implied. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Company to object to such terms. Except as set forth in this Agreement, this Agreement may only be amended in a writing signed by the parties. Any ambiguity in this Agreement will be interpreted without regard to which party drafted this Agreement or any part thereof. The relationship between the parties will be that of independent contractors. Any waiver of a right arising under this Agreement must be made in writing and signed by the party making the waiver. Waiver of any term of this Agreement will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Customer agrees that any violation or threatened violation of this Agreement would cause irreparable injury to Company for which monetary damages would not be an inadequate remedy, entitling Company to seek injunctive relief in addition to all legal remedies, without the posting of any bond (or any other security) or proof of actual damages. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in effect.

12.7 Notice Regarding Apple. This Section 12.8 only applies to the extent you are using our mobile application on an iOS device. Customer acknowledges that this Agreement is between Customer and Company only, not with Apple Inc. (“​Apple​”), and Apple is not responsible for the Mobile Application or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Mobile Application. If the Mobile Application fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Mobile Application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Mobile Application. Apple is not responsible for addressing any claims by you or any third party relating to the Mobile Application or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Mobile Applications and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Mobile Application. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. Customer hereby represent and warrant that: (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties.

Service Level Agreement

Company is providing these service level terms (“​SLA​”) to any Customer who uses the Services on a paid basis. Terms not defined in this SLA, will have the meanings specified in the Master Services Agreement available on the company website (the “​Agreement​”). If Company does not fulfill its obligations described below, then Customer, as its sole remedy, may be entitled to service credit(s), once requested by Customer and verified by Company. This SLA is subject to the terms and conditions of, and limited by, the Agreement and in the event of a conflict, the terms and conditions of the Agreement will govern.

  1. Service Availability. Company will use commercially reasonable efforts to make the Hosted Services available in all material respects to Customer at least 99.9% of the time, excluding unavailability due to Scheduled Maintenance or unavailability as a result of circumstances or causes outside the control of Company, measured on a rolling 6-month basis. “Scheduled Maintenance” means: (a) upgrades of hardware or software, (b) upgrades to increase capacity, and (c) other activity to maintain or improve the systems supporting the Hosted Services. Unless otherwise specified in advance by Company, Scheduled Maintenance will be undertaken only on Sunday evenings between the hours of 5:00 PM and 7:00 PM Local Time. For purposes of this SLA, “Local Time” refers to the local time in the time zone of the Company facility where the Scheduled Maintenance work is being performed.
  2. Service Level Credit. Customer’s sole and exclusive remedy, and Company’s sole liability, with respect to any breach of the foregoing service level commitments will be service level credits in the amount of 5% of the applicable monthly Fees per 1% of unscheduled downtime for the applicable Hosted Services during the applicable measurement period, which credits will be applied only toward subsequent Fee payments, if any. If Customer believes that Company has not met its obligations under this SLA, Customer must contact Company’s technical support hotline within five (5) days of the end of the month during which the incident for which service credits are requested occurred. If Company determines in its reasonable commercial judgement that it did not meet its obligations under this SLA, the applicable service level credit will be applied to the Customer’s account as set forth in this Section. Credits will not apply to any charges or Hosted Services other than the fee for the Hosted Services for which this SLA was not met.

ELITE PERFORMANCE

REQUIRES ELITE PREPARATION

ELITE PERFORMANCE REQUIRES ELITE PREPARATION

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