Subscription Agreement

Last Modified: October 2021

This Master Subscription Agreement (“Agreement”) is made and entered into as of the Effective Date of the first Order Form executed between Channeltivity, LLC. (“Channeltivity”) and the Customer, described in such Order Form (“Customer”). CUSTOMER SHOULD CAREFULLY READ THE TERMS OF THIS AGREEMENT, AND THE DATA PROTECTION ADDENDUM AND THE ANNEXES THERETO, INCLUDING THE STANDARD CONTRACTUAL CLAUSES, AND INCORPORATED THEREIN (THE “DPA”), WHICH DPA IS INCORPORATED HEREIN AND MADE A PART OF THIS AGREEMENT BY REFERENCE THERETO, BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY SERVICES OF CHANNELTIVITY.  BY (AS APPLICABLE) SIGNING A SERVICE ORDER, CLICKING “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THE TERMS AND PROVISIONS OF THE AGREEMENT AND ALL DOCUMENTS INCORPORATED HEREIN, INCLUDING WITHOUT LIMITATION, THE DPA. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, CHANNELTIVITY’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO CHANNELTIVITY SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT (AND DOCUMENTS INCORPORATED HEREIN) AND CONDITIONED ON CUSTOMER’S ASSENT HERETO. The terms and conditions of this Agreement shall govern the Service(s) to be provided by Channeltivity under any Order Form submitted by Customer and accepted by Channeltivity, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. The term “Channeltivity” shall include any third parties which are providing third party Services identified in an Order Form. A Definitions section is included at the end of this Agreement.

1. LICENSE GRANT & RESTRICTIONS

Subject to the terms and conditions of this Agreement, Channeltivity hereby grants Customer a non-exclusive, non-transferable, non-assignable worldwide right to use the Service provided hereunder solely for Customer’s own internal business purposes and only as set forth in each fully executed Order Form. All rights not expressly granted to Customer are reserved by Channeltivity and its licensors. Channeltivity reserves the right to make changes, modifications and enhancements to the Services and Terms of Use from time to time, including, but not limited to, the addition of functionality and third party integrations for which additional charges may be required for their subscription and use.

2. LIMITATIONS ON USE

Customer may not release to any third party the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Channeltivity.

Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way except that Channeltivity expressly acknowledges and agrees that Customer may disclose and allow access to the Service by its third party marketing and development partners in connection with programs and services available to its third party marketing and development partners; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” the service on any other server or wireless or Internet-based device for the purpose of reselling a service; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

Additionally, Customer may use the Service only for its and its Affiliates’ own internal business purposes, including but not limited to supporting its and its Affiliates’ third party partner programs and shall not use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.  The foregoing notwithstanding, Customer is expressly prohibited from granting or otherwise allowing, and shall not grant or allow, access to the Services to any of Customer’s Affiliates who are competitors of Channeltivity. For purposes of this Agreement, “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Customer, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

2A. API LIMITATIONS ON USE

Customer’s use of APIs are subject to certain limitations on access, calls and use as set forth on help.channeltivity.com, as described in the Order Form, or as otherwise provided to Customer by Channeltivity. Channeltivity may monitor use of APIs to improve the Channeltivity service and to ensure compliance with these rules. If Channeltivity believes that Customer has attempted to exceed or circumvent these limitations, Customer’s ability to use the APIs may be temporarily or permanently blocked. Customer shall not attempt to, or encourage or allow others to:

• sell, rent, lease, sublicense, redistribute, or syndicate access to the APIs to any third party without prior written approval from Channeltivity.
• use or access the APIs for purposes of monitoring the availability, performance, or functionality of any of Channeltivity products and services or for any other benchmarking or competitive purposes.
• use or access the APIs in a manner that adversely impacts or could potentially adversely impact the stability or security of Channeltivity servers or adversely impacts the behavior of other applications using the APIs.
• attempt to, interfere with, modify or disable any features, functionality or security controls of the Service or APIs, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Service or APIs, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Service or APIs.

3. ORDER PROCESS

Customer shall order the Service by completing and signing an Order Form. Channeltivity shall accept or reject such Order Form within ten (10) days. Each accepted, fully executed Order Form shall become incorporated herein by reference. In the event that Customer’s business practices require a purchase order number be issued prior to payment of any Channeltivity invoices issued pursuant to this Order Form, then such purchase order number must be entered in the Order Form. Customer’s execution and return of an Order Form to Channeltivity without designating a purchase order number shall be deemed an acknowledgment that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may use in connection with the provision of Services (or any software) by Channeltivity, Inc. will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Channeltivity, Inc. to object to such terms, provisions or conditions.

4. CUSTOMER’S RESPONSIBILITIES

Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Channeltivity as soon as practical of any unauthorized use of any password, API security token, or account or any other known or suspected breach of security with respect to the Service; (ii) as soon as practical report to Channeltivity and use reasonable efforts to stop any copying or distribution of Content that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Channeltivity user or provide false identity information to gain access to or use the Service. Customer agrees that Customer will comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to, all applicable privacy and export control laws and regulations. Customer acknowledges that the Services are subject to U.S. export control laws and regulations and Customer represents that Customer is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. Customer represents that Customer is not an individual less than 18 years of age.

5. MUTUAL INDEMNIFICATION

INDEMNIFICATION BY CHANNELTIVITY. CHANNELTIVITY SHALL DEFEND CUSTOMER AGAINST ANY CLAIM, DEMAND, SUIT, OR PROCEEDING (“CLAIM”) MADE OR BROUGHT AGAINST CUSTOMER BY A THIRD PARTY ALLEGING THAT THE USE OF THE SERVICES AS PERMITTED HEREUNDER INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND SHALL INDEMNIFY CUSTOMER FOR ANY DAMAGES FINALLY AWARDED AGAINST, AND FOR REASONABLE ATTORNEY’S FEES INCURRED BY, CUSTOMER IN CONNECTION WITH ANY SUCH CLAIM; PROVIDED, THAT CUSTOMER (A) PROMPTLY GIVES CHANNELTIVITY WRITTEN NOTICE OF THE CLAIM; (B) GIVES CHANNELTIVITY SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM (PROVIDED THAT CHANNELTIVITY MAY NOT SETTLE ANY CLAIM UNLESS THE SETTLEMENT UNCONDITIONALLY RELEASES CUSTOMER OF ALL LIABILITY); AND (C) PROVIDES TO CHANNELTIVITY ALL REASONABLE ASSISTANCE, AT ITS EXPENSE.

INDEMNIFICATION BY CUSTOMER. CUSTOMER SHALL DEFEND CHANNELTIVITY AGAINST ANY CLAIM MADE OR BROUGHT AGAINST CHANNELTIVITY BY A THIRD PARTY ALLEGING THAT CUSTOMER’S DATA, OR CUSTOMER’S USE OF THE SERVICES IN VIOLATION OF THIS AGREEMENT, INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR VIOLATES APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, ANY DATA PROTECTION LAWS AND PRIVACY LAWS, AND SHALL INDEMNIFY CHANNELTIVITY FOR ANY DAMAGES FINALLY AWARDED AGAINST, AND FOR REASONABLE ATTORNEY’S FEES INCURRED BY, CHANNELTIVITY IN CONNECTION WITH ANY SUCH CLAIM; PROVIDED, THAT CHANNELTIVITY (A) PROMPTLY GIVES CUSTOMER WRITTEN NOTICE OF THE CLAIM; (B) GIVES CUSTOMER SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM (PROVIDED THAT CUSTOMER MAY NOT SETTLE ANY CLAIM UNLESS THE SETTLEMENT UNCONDITIONALLY RELEASE CHANNELTIVITY OF ALL LIABILITY); AND (C) PROVIDES TO CUSTOMER ALL REASONABLE ASSISTANCE, AT ITS EXPENSE.

EXCLUSIVE REMEDY. THIS SECTION 5 (MUTUAL INDEMNIFICATION) STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION.

6. ACCOUNT INFORMATION AND DATA

Channeltivity does not own any Customer Data. Customer, not Channeltivity, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and Channeltivity shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, caused by Customer’s incorrect usage of the service or the APIs. In the event this Agreement is terminated (other than by reason of Customer’s breach under Section 14), Channeltivity will make available to Customer a file of the Customer Data if requested by Customer within thirty (30) days of termination. Customer agrees and acknowledges that (i) Channeltivity is not obligated to retain Customer Data for longer than thirty (30) days after termination, and (ii) Channeltivity has no obligation to retain Customer Data, and may delete Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within ten (10) days of notice of such breach. Upon termination for cause resulting from an uncured breach, Customer’s right to access or use Customer Data immediately ceases, and Channeltivity shall have no obligation to maintain or forward any Customer Data.  The forgoing notwithstanding, the deletion and return of any Customer Data constituting Personal Data (as defined in the DPA) following termination of Services (for any reason) shall be governed by the terms of the DPA.

7. FUNDED PRODUCT DEVELOPMENT SERVICES

On occasion customers may opt to accelerate product features by funding additional development resource. If funded product development services are performed to enhance features of the service, Channeltivity shall retain all ownership rights to any and all Work Product. Customer acknowledges that nothing in this Agreement shall restrict or limit Channeltivity from performing similar services for any third party.

8. INTELLECTUAL PROPERTY OWNERSHIP

Channeltivity alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Channeltivity Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Channeltivity Technology or the Intellectual Property Rights owned by Channeltivity. The Channeltivity name, the Channeltivity logo, and the product names associated with the Service are trademarks of Channeltivity or third parties, and no right or license is granted to use them.

9. THIRD PARTY INTERACTIONS

During use of the Service, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between Customer and the applicable third-party. Channeltivity and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. Channeltivity does not endorse any sites on the Internet that are linked through the Service. Channeltivity provides these links to Customer only as a matter of convenience, and in no event shall Channeltivity or its licensors be responsible for any content, products, or other materials on or available from such sites. Channeltivity provides the Service to Customer pursuant to the terms and conditions of this Agreement. Customer recognizes, however, that certain third-party providers of ancillary software, hardware or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware or services.

10. CHARGES AND PAYMENT OF FEES

Customer shall pay all fees or charges as specified on each executed Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Channeltivity reserves the right to modify its fees and fee structures for services and to introduce new charges in the event of new regulatory compliance requirements, data transfer or storage costs, upon at least thirty (30) days prior notice, as specified in Section 21 below, to Customer, effective upon the next Renewal Term in accordance with Section 11, below. In no event shall fees for existing services or fee structures increase by more than 15% in one renewal period. In the event that Customer does not cancel as described in Section 13 below, such changes shall become effective at the commencement of the renewal term. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release.

11. TERM, BILLING AND RENEWAL

The initial Term of this agreement shall begin on the effective date of the first Order Form signed between the parties. Service Activation for each Service shall commence on the Order Form effective date which describes the Service in question. In the event that an Order Form contains services added to an existing subscription, such Added Services shall be coterminous with the initial or renewal term and shall be billed from the Order Form effective date.

Channeltivity charges and collects in advance for the committed amounts as defined on each Order Form. Customer will pay all invoices within thirty (30) days of the date of the invoice. Unless terminated as described in Section 13, upon expiration of the Initial Term of any Order Form, or upon expiration of any Renewal Term as specified herein, such Order Form shall automatically renew for an additional one (1) year period. Channeltivity’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Channeltivity’s income. Customer will be billed, and payments will be made, in U.S. dollars. If Customer believes Customer’s bill is incorrect, Customer must contact Channeltivity in writing within ten (10) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

Payment is due in US dollars. If payment is made via credit card, credit card is chargeable upon invoice date and no receipt will be provided. Channeltivity, Inc. reserves the right to invoice Customer directly in the event that reasonable efforts made to obtain a credit card payment authorization fails.

Customer agrees to provide Channeltivity with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Channeltivity reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.

12. NON-PAYMENT AND SUSPENSION

In addition to any other rights granted to Channeltivity herein, Channeltivity reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection. Customer will continue to be charged for License fees during any period of Service suspension. If Channeltivity initiates termination of this Agreement for cause, as further described in Section 14, Customer will be obligated to pay the balance due on Order Forms then in effect computed in accordance with Section 10 above, provided, however, that any such Order Form shall expire at the end of the Initial Term or then-current Renewal Term. Customer agrees that Channeltivity may charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees.

13. TERMINATION UPON EXPIRATION/REDUCTION IN COMMITMENT LEVEL

Either party may terminate any Order Form or, in the case of Customer, deactivate modules, for such Order Form upon written notice delivered to the other party no later than thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term of such Order Form.

14. TERMINATION FOR CAUSE

Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement which, in the case of Customer, will include any breach of Customer’s payment obligations or unauthorized use by Customer of the Channeltivity Technology or Service if the other party fails to cure such breach within thirty (30) business days after notice of such breach.

15. REPRESENTATIONS & WARRANTIES

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Channeltivity further represents and warrants that the Service will perform substantially in accordance with the online Channeltivity help documentation under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and Channeltivity’s sole obligation will be for Channeltivity to make reasonable commercial efforts to correct the non-conformity or, if Channeltivity is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable Order Form Customer further represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service and that Customer’s billing information is correct.  Customer further represents and warrants that (a) Customer will maintain compliance with Data Protection Laws (as such term is defined in the DPA); (b) Customer does not and will not Process (as such term is defined in the DPA), or cause the Processing of, Sensitive Personal Data (as such term is defined in the DPA) or any other high risk Personal Data, such as credit card information, social security numbers, medical records, or criminal records in relation to the Services; and (c) Customer does not and will not Process (as such term is defined in the DPA), or cause the Processing of, special categories of Personal Data in relation to the Services.  Special categories of Personal Data include Personal Data with information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data when Processed for the purpose of uniquely identifying a natural person, and data concerning health or a natural person’s sex life or sexual orientation.

16. USAGE FEES

In the event that Customer’s use of the Service exceeds the committed storage or transfer volume or any other usage based fees as described on the Order Form, additional Usage Fees shall apply. Usage shall be assessed monthly in arrears. Usage Fees shall be determined as described on the Order Form.

17. DISCLAIMER OF WARRANTIES

EXCEPT AS PROVIDED IN SECTION 15, CHANNELTIVITY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. CHANNELTIVITY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CHANNELTIVITY AND ITS LICENSORS.

18. HOSTING SERVICE-LEVEL AGREEMENT

Channeltivity uses Microsoft Azure cloud infrastructure, which provides a 99.95% uptime guarantee, exclusive of planned maintenance.

19. INTERNET DELAYS

CHANNELTIVITY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CHANNELTIVITY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

20. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO INDEMNITY PUSUANT TO SECTION 5, IN NO EVENT SHALL CHANNELTIVITY’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT WITH RESPECT TO INDEMNITY PURSUANT TO SECTION 5, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

21. MARKETING

Customer grants Channeltivity the right to use Customer’s name, mark and logo on Channeltivity’s website, in Channeltivity marketing materials, and to identify Customer as a Channeltivity Customer.

22. NOTICE

All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service, by electronic facsimile (fax), by electronic mail as described below, or by mail to the other party at the address set forth beneath such party’s signature. Customer may give notice to Channeltivity by mail to its business address as stated on the Order Form or by emailing [email protected]. Channeltivity may give notice by emailing Customer’s billing contact as specified on the Order Form.

All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.

23. ASSIGNMENT

Neither party may assign, convey, attorn or otherwise transfer this Agreement to any third party provided however that either party shall have the right to assign, convey, attorn or transfer this Agreement to (i) a parent or subsidiary of such party, (ii) an acquirer of all or substantially all of the assets of such party, or (iii) in connection with a reorganization or merger. Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

24. CONFIDENTIALITY

“Confidential Information” means non-public information of a party to this Agreement or any Customer affiliate that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information includes, without limitation, any Customer Data or Channeltivity or Customer related software or documentation including all algorithms, methods, techniques, code (source code and object code) and processes revealed or utilized therein. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; or (iv) is independently developed by the Recipient without access to Confidential Information.

“Discloser” means the party providing Confidential Information to the Recipient.

“Recipient” means the party receiving Confidential Information of the Discloser.

“Residual Knowledge” means ideas, concepts, know-how or techniques related to the Discloser’s technology and Confidential Information that are retained in the unaided memories of the Recipient who had rightful access to Confidential Information.

The Recipient will not disclose to any third party, or make any use of the Discloser’s Confidential Information, except (i) to the extent that such disclosure or use is directly related to and required by the Recipient’s performance in good faith of Services under this Agreement or (ii) to the extent required to do so by law or regulation, provided, however, that if the Recipient reasonably believes that the Recipient may be required by law, regulation or legal process to communicate or divulge Confidential Information, then the Recipient shall promptly so notify the Discloser prior to disclosure of such Confidential Information, to the extent permitted by law. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. Except in connection with a Discloser’s related software, the non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Recipient’s receipt of that item. However, a party’s obligations to maintain a Discloser’s related software will survive in perpetuity. Notwithstanding the foregoing, this section is not intended to prevent a Recipient from using Residual Knowledge, subject to any Intellectual Property Rights of the Discloser.

25. GENERAL

This Agreement shall be governed by New York law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in New York. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Channeltivity as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Order Form and the DPA, comprises the entire agreement between Customer and Channeltivity regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.

26. DEFINITIONS

As used in this Agreement and in any Order Forms associated herewith:

“Administrator(s)” means those Users designated by Customer who are authorized to submit, whether electronically or in writing, Order Forms and to create Customer accounts and otherwise administer Customer’s use of the Service.

“APIs” means the application programming interfaces developed and enabled by Channeltivity that permits Customer to access certain functionality provided by the Service, including without limitation, the Channeltivity Data API that enables the interaction with a Channeltivity instance automatically through HTTP requests and the Channeltivity Single Sign-On APIs that enable the integration of a Channeltivity instance with other web applications.

“Channeltivity Technology” means all of Channeltivity’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Channeltivity in providing the Service.

“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Service, other than Customer Data.

“Customer Data” means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to Channeltivity or the Service in the course of using the Service.

“Initial Term” means the initial period specified in the applicable Order Form during which Customer is obligated to pay for the Service.

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

“Order Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective.

“Order Form(s)” means the form evidencing the initial subscription order for the Service and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Order Effective Date, or other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).

“Renewal Term” means each subsequent period beginning on successive Order Form Effective Date anniversaries during which Customer is obligated to pay for the Services.

“Service(s)” means Channeltivity’s modules as described in the relevant product data sheet(s) and as otherwise described by Channeltivity on http://www.Channeltivity.com, developed, operated, and maintained by Channeltivity and accessible via http://www.Channeltivity.com or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by Channeltivity, to which Customer is being granted access under this Agreement, including the Channeltivity Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form.

“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Channeltivity at Customer’s request).

“Work Product” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Channeltivity (either alone or jointly with Customer or others) that result from professional services included in any Order Form and provided to Customer hereunder.