Condati, Inc.
Customer Terms of Service

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

This is a contract between you (the “Customer”) and Condati, Inc., (“Condati”), each a “Party” and together “Parties”. It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. These terms are so important that we cannot provide our products and services to you unless you agree to them. By accepting and executing the Order Form, or the Evaluation Plan and Agreement, or by using the Subscription Service, you are agreeing to these terms.

We periodically update these terms. If you have an active Condati subscription, we will let you know when we do so via an email or in-app notification.

A. DEFINITIONS

“Agreement” means these Customer Terms of Service and all materials referred or linked to in here.

“Agency Partner” is a Customer that is using the Subscription Service and the Products for the benefit of one or more Agency Partner Clients.

“Agency Partner Client” is a customer of an Agency Partner.

“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term.

“Campaign Performance Data” means all information that you submit or collect via the Subscription Service. If you are an Agency Partner then the Campaign Performance Data includes the data of your Agency Partner Clients

“Confidential Information” means any information disclosed by a Party to the other Party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving Party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this Agreement, Customer Content is deemed Confidential Information of Customer. Condati Content are deemed Confidential Information of Condati.

Confidential Information excludes information that: (a) is known publicly at the time of the receiving Party or becomes known publicly after disclosure through no fault of the receiving Party, (b) is known to the receiving Party, without restriction, at the time of disclosure or becomes known to the receiving Party, without restriction, from a source other than the disclosing Party not bound by confidentiality obligations to the disclosing Party, or (c) is independently developed by the receiving Party without use of the Confidential Information as demonstrated by the written records of the receiving Party. The receiving Party may disclose Confidential Information of the other Party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving Party shall use reasonable efforts to promptly notify the other Party prior to such disclosure to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Each Party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each Party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

“Condati Content” means all information, documentation, data, text, messages, software, graphics, views and images, that we incorporate into the Subscription Service, including design elements of our navigation.

“Order” or “Order Form” means the Condati-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase.

“Products” or “Condati Products” means Condati Quant Marketer, other components of the service and other Condati Products found at https://www.condati.com/products, as updated by us from time-to-time.

“Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.

FOR PURPOSES OF CLARITY, CONDATI’S PRODUCTS DO NOT COLLECT OR STORE ANY SENSITIVE INFORMATION UNDER THIS DEFINITION. ANY INFORMATION THAT WOULD FALL UNDER THIS DEFINITION OF “SENSITIVE INFORMATION” SHOULD NOT BE SHARED WITH CONDATI, AND IF YOU DO SHARE IT, DELIBERATELY OR BY ERROR, CONDATI ASSUMES NO LIABILITY FOR ITS PROTECTION OR SAFEKEEPING.

“Subscription Fee” means the amount you pay for the Subscription Service.

“Subscription Service” means all our Products that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via the private and secure URL provided to you by Condati, and any ancillary products and services that we provide to you.

“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any).

“User” or “Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

“We”, “us” or “our” means Condati, Inc.

“You”, “your”, or “Customer” means the person or entity using the Subscription Service and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.

B. GENERAL COMMERCIAL TERMS

a. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order.

b. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Condati account (if this option is made available by us.) This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Condati account.

c. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

d. Agency Partners. If you are an Agency Partner we will provide separate access and set-up for each one of your Agency Partner Clients under terms agreed to in the Order Form

e. Fees and Payments

i. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless otherwise agreed to in the Order.

ii. Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and at other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.

iii. Payment Information. You will keep your contact information and billing information up to date (“Customer Contact Information”.) Changes should be sent to Condati Inc, 130 Hanna Way, Menlo Park, CA, 94025, Attn: Finance. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Condati Agency Partner you agree to be responsible for the fees, as agreed in the Order Form, for all of your Agency Partner Clients.

iv. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You shall have no liability for any taxes based upon our gross revenues or net income.

f. Use and Limitations of Use

i. Acceptable Use. You will respect the limits that apply to your use of the Condati Service and Products as specified in your Order Form. You will use the Condati Service for your internal business purposes and will not: (1) willfully tamper with the security of the Condati Service or tamper with our customer accounts; (2) access data on the Condati Service not intended for you; (3) log into a server or account on the Condati Service that you are not authorized to access; (4) attempt to probe, scan or test the vulnerability of any Condati Service or to breach the security or authentication measures without proper authorization; (5) willfully render any part of the Condati Service unusable; (6) lease, distribute, license, sell or otherwise commercially exploit the Condati Service or make the Condati Service available to a third party other than as contemplated in your subscription to the Condati Service; (7) use the Condati Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (8) provide to third parties including Agency Partner Client, any evaluation version of the Condati Service or Products without our prior written consent.

ii. Prohibited and Unauthorized Use. You will not (1) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (2) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (3) attempt to gain unauthorized access to the Subscription Service; (4) access the Subscription Service other than through our interface; or (5) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

If you are an Agency Partner you may use the Condati Service and Products with the Campaign Performance Data of each of your Agency Partner Clients.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Set-Up Services or Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.

The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You agree not to use data from the Subscription Service in legal proceedings or otherwise as evidence. You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account via email at support@condati.com.

iii. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

g. Subscription Term, Termination, Suspension

i. Term and Renewal. Your subscription will automatically renew at the end of the then-current Subscription Term for one year unless otherwise specified and agreed to by you and us in the Order Form or unless a notice of Non-Renewal was provided by you or by us. Your initial subscription period will be specified in your Order.

ii. Adding Services. If you add products during the Subscription Term, the fees for these additional products will be pro-rated and they will renew along with your subscription, unless otherwise indicated in your Order.

iii. Renewal Pricing. The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then our standard pricing available in our Products on the date of renewal will apply. See the ‘Limits’ section below for the applicability of product limits on renewal.

iv. No Early Termination; No Refunds. The Subscription Term will end on the expiration date of the then-current Subscription Term and provided that a notice of Non-Renewal was tendered in the time and manor described in this section. The subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the Condati subscription during your Subscription Term.

v. Non-Renewal. To prevent renewal of the subscription, you must provide us with notice at least 30 days prior to the end of your then-current Subscription Term. If you decide not to renew, you may send the notice of non-renewal by email to accounting@condati.com. If we decide not to renew your subscription, we will do so by providing you notice at least 30 days prior to the end of the then-current Subscription Term.

vi. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (1) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (2) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

vii. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.

viii. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a reactivation fee to reinstate the Subscription Service.

ix. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription Service and Condati Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

C. SUBSCRIPTION TERMS

a. Subscription Types. Condati’s Subscription Services are offered on 12-month terms, unless otherwise agreed to by you and us.

b. Limits. The limits that apply to you will be specified in your Order Form, this Agreement, or on the Products page of our website, and these limits may also be designated from within the product itself. You must be 18 years of age or older to use the Subscription Service. If we make modifications to the limits set forth that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the then-current product usage limits will apply to your subscription, unless you and we otherwise agree.

c. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term.

d. Use of Campaign Performance Data. Unless otherwise agreed, Condati may include your Campaign Performance Data anonymized in aggregate benchmark studies that may be released as part of Condati’s marketing activities.

e. Customer Support. If you pay us a Subscription Fee, email and in-app support is included at no additional cost. We accept email and in-app support questions 24 Hours per Day x 7 Days per Week. Email and in-app questions can be submitted through the help system within the Quant Marketer application or by emailing us at support@condati.com. We attempt to respond to email and in-app support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.

f. Retrieval of Campaign Performance Data. If you have paid all fees owed to us, we will provide API access to our products that will allow you to export your data, for a period of 30 days after termination or expiration of your subscription. We may withhold access to Campaign Performance Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Campaign Performance Data and may, unless legally prohibited, delete all Campaign Performance Data in our systems or otherwise in our control.

D. GENERAL LEGAL TERMS

a. Campaign Performance Data

i. Limits on Condati. We will not use, or allow anyone else to use, your Campaign Performance Data except as you direct or otherwise permit. We will use your Campaign Performance Data only to provide the Subscription Service to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at https://www.condati.com/condati-privacy-policy/.

We will not use contact information of your Agency Partner Clients for our own marketing purposes.

ii. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect your Campaign Performance Data, and will do so for each Agency Partner Client as applicable. You consent to the processing of Campaign Performance Data in the United States.

b. Condati’s Proprietary Rights.  This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service is protected by intellectual property laws, it belongs to and is the property of us or our licensors (if any), and we retain all ownership rights to it. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on Condati’s Content, the Subscription Service, or in whole or in part, by any means, except as expressly authorized in writing by us.

c. Feedback. We encourage all Customers and Users to comment on the Subscription Service or provide feedback and suggestions for improving it. Such feedback includes, but is not limited to, functional suggestions, bug reports, enhancements, methodology changes, or any suggestions to improve the use and utility of the Products. Feedback may be expressed in writing, orally, or may be captured in one or more digital forms, collectively the “Feedback”. You agree that all such Feedback will be Condati Content and Confidential and that we perpetually and irrevocably own all rights to use or incorporate the Feedback into the Products, or the Subscription Service without payment or attribution to you.

d. Customer’s Proprietary Rights. As between the Parties, you own and retain all rights to your Campaign Performance Data. This Agreement does not grant us any ownership rights to your Campaign Performance Data. You grant permission to us to use the Campaign Performance Data only as necessary to provide the Subscription Service to you and as permitted by this Agreement. If you are using the Subscription Service or receiving on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.

e. Confidentiality. The receiving Party will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents.

As an Agency Partner you are representing that you are authorized to share with Condati the Campaign Performance Data and other Confidential Information of your Agency Partner Clients with Condati under the terms of this Agreement.
Upon notice to the disclosing Party, the receiving Party may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

f. Publicity. You grant us the right to add your name and company logo to our customer list and website.

g. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (1) unauthorized or illegal use of the Subscription Service by you or your Agency Partner Clients, (2) your noncompliance with or breach of this Agreement, (3) your use of Third-Party Products, or (4) the unauthorized use of the Subscription Service by any other person using your User information.

We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

h. Disclaimers; Limitations of Liability

i. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE OR CONDATI CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE ALWAYS. TO THE EXTENT PERMITTED BY LAW, THE SET-UP SERVICES, THE SUBSCRIPTION SERVICE AND CONDATI CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SUBSCRIPTION SERVICE, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PURPOSE, TITLE AND NON-INFRINGEMENT.

ii. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.

iii. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOUR USE IS FREE, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.

iv. Third-Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

v. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

h. Miscellaneous

i. Amendment; No Waiver. We may update and change any part or all of the Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.)

If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://www.condati.com/terms-of-service/ and we will let you know via email or in-app notification as specified in the Customer Contact Information. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

ii. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

iii. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

iv. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

v. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service and our processing of Campaign Performance Data. We reserve the right always to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Service or by prohibited countries or individuals.

vi. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

vii. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.

To Condati, Inc., to 1259 El Camino Real, Unit #1003 Menlo Park, CA 94025
Attention: General Counsel.

To you: to your address as provided in the Customer Contact Information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(s) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all your account information current.

viii. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy, is the entire agreement between us for the Subscription Service and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service.

ix. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer due to merger, reorganization, sale of all or substantially all your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially of our assets, change of control or operation of law.

x. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit, or remedy of any nature whatsoever under or due to this Agreement.

xi. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

xii. Authority. Each party represents and warrants to the other that it has full power and authority to enter this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

xiii. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Prohibited and Unauthorized Use’, ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Campaign Performance Data’, ‘Condati’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.

xiv. Precedence. In the event of a conflict between the terms of this Agreement and an Order or an Evaluation Plan and Agreement, the terms of the Order or the Evaluation Plan and Agreement shall control, but only as to that Order or that Evaluation Plan and Agreement, respectively.

E. JURISDICTION
This Agreement is governed by the laws of the State of California, U.S.A. without reference to conflicts of law principles. Both Parties consent to the exclusive jurisdiction and venue of the courts in San Mateo County, CA, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service.