SUBSCRIPTION SERVICES

1. Subscription. Subject to the other provisions of this Agreement, Company will make available to Client on a non-exclusive and non-transferable basis the Services in accordance with Company’s published documentation for the Services during the subscription term. Client will (a) be responsible for connecting to and using the Services made available to it in accordance with this Agreement, (b) be responsible for its use and decisions relating to the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Company promptly of any such unauthorized access or use, and (d) use the Services only in accordance with applicable laws and regulations and this Agreement.

2. Restrictions. Client will not (and will not permit any of its users to): (a) make the Services, or any data or metrics from the Services, available to any third party other than as contemplated by this Agreement, (b) resell, lease, distribute, transfer or otherwise make available the Services on a time-sharing or service bureau basis, (c) use or access the Services in any way that threatens the integrity, performance, or availability of the Services or other clients or users, (d) attempt to gain unauthorized access to the Services, including any data stored or processed therein, (e) decompile, disassemble, or reverse engineer the Services, in whole or in part, or (f) use or reference the Services to develop or offer a competing service or product.

3. Ownership. Except for Client’s limited right to access and use the Services as expressly described in this Agreement, Company (or its licensors) owns and reserves all other rights, title, and interest in and to the Services. The Services are being made available on a strictly confidential and limited use basis and are highly proprietary and valuable to Company. This Agreement is not an agreement of sale, and no ownership rights to any of the Services or portion thereof are transferred to Client. Client hereby assigns and agrees to assign to Company any rights, title and interest in and to any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements to the Services that Client or its representatives provide or develop. Client will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Company’s rights described above and the intent of this Section.

4. Confidential Information. All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party's confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The receiving Party will limit its use of and access to the disclosing Party's confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving Party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing Party's confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either Party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Company’s confidential information includes the Services (and the data or metrics that are provided as part of the Services, but not any raw Client provided data) and the pricing under this Agreement.

1. RESULTS, DISCLAIMERS, AND LIMITATIONS

   1. Results and Decisions. Client is solely responsible for the results obtained from its use of the Services, and any decisions made from using the Services. The Services may include data or metrics based on average or past experiences that may be different from what Client will experience or which may be wrong or inappropriate. Client should use its judgement and not solely rely on the Services. Accordingly, Client will indemnify and defend Company and its affiliates from any claims arising from or relating to the decisions made through the Services or Client’s reliance on the Services.  

   2. Disclaimer. the Services are provided "as is" and Company makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, non-interference, accuracy, or non-infringement. Company makes no representations or warranties, nor will Company have any liability with respect to, the accuracy, use, or appropriateness of any data or metric provided in connection with the Services or decision made from the Services. 

   3. Damage Limitation. IN NO EVENT WILL EITHER PARTY (OR THEIR AFFILIATES) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OPPORTUNITIES, REVENUE OR SAVINGS) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF ANY SERVICES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’s (AND ITS AFFILIATES’) total liability under this Agreement OR RELATING TO THE SERVICES will under no circumstances exceed the fees actually paid by the Client to Company during the prior twelve (12) months UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO A PARTY’S WILLFUL MISCONDUCT, CLIENT’S UNAUTHORIZED USE OR DISCLOSURE OF THE SERVICES OR COMPANY CONFIDENTIAL INFORMATION, OR CLIENT’S INDEMNIFICATION OBLIGATIONS.

2. MISCELLANEOUS. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents. Company may engage its affiliates and subcontractors to provide certain Services, and remains responsible for their performance in accordance with this Agreement. Client may not assign this Agreement or its rights without the prior written approval of Company. This Agreement states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. No waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, then such unenforceable portion of the provision will be deemed severed from this Agreement, the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision. This Agreement will be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws will not apply. Except with respect to Client’s payment obligations, neither Party will be liable for, nor will either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of data or supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care. Client authorizes Company to use Client’s name in any routine list of Company clients and as a reference. Company may not use Client’s name in any advertising or press release without the prior written consent of Client. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.