SUBSCRIPTION SERVICES AGREEMENT

This Subscription Services Agreement (“Agreement”), is by and between the Customer identified in the applicable Order Form (“Customer”) and Fastpath Solutions, LLC (“Fastpath”, and together with Customer, the “Parties”, and each, a “Party”) as of the effective date stated in the applicable Order Form (the “Effective Date”).

1.  Definitions. Capitalized terms not otherwise defined in this Agreement’s substantive provisions are defined in Attachment 1.

2. Provision of Service.

a. Fastpath Obligations. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Fastpath shall make the Service available to Customer in accordance with the Documentation, the SLA, and pursuant to the terms of this Agreement.

b. Customer Obligations. Customer may enable access to the Service solely for the internal business purposes of Customer and not for the benefit of any third parties (except for any Customer Affiliates identified in an Order Form). Customer is responsible for all use of the Service and compliance with this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Customer shall have sole responsibility for the accuracy, quality, and legality of all information submitted to Fastpath, including, but not limited to, Customer Data, and Customer shall take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Fastpath promptly on becoming aware of any such unauthorized access or use.

c.                   Updates. From time to time, Fastpath shall provide to Customer all updates, bug fixes, enhancements, new releases, new versions, and other improvements to the Service (collectively, “Updates”), including associated Documentation, in each case that are provided/delivered by Fastpath at no additional charge to its other customers.

d.                   Service Levels and Support. Fastpath shall make the Service available and provide maintenance and support services as set forth in the Service Level Agreement and, to the extent separately purchased by Customer on an Order Form, the Support Services Supplement, which are hereby incorporated by reference.

3.                   Term and Termination.

a.                   Term of the Agreement. The term commences on the Effective Date and continues until the stated term in all Order Forms has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the Parties (“Term”). Subscriptions to the Service commence on the date, and are for a period, as set forth in the applicable Order Form. The term of each Order Form is the period of time specified in such Order Form during which Customer will use the Service (the “Initial Order Term”). At the end of the Initial Order Term, the Order Form will automatically renew for additional 12-month periods (each, an “Order Renewal Term”, and together with the Initial Order Term, the “Order Term”), unless either Party provides the other Party with written notice of termination at least thirty (30) days prior to the end of the then-current Order Term.

b.                   Termination. Either Party may terminate this Agreement (i) for cause upon thirty (30) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period; provided, however, that any such cure period shall be inapplicable to any failure by Customer to pay fees as they become due; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

c.                   Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall, as of the date of such expiration or termination, immediately cease accessing or otherwise utilizing the applicable Service and Fastpath Materials. Except as otherwise provided in this Agreement or in an Order Form, termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Fastpath prior to the effective date of termination, and termination for any reason other than for uncured material breach by Fastpath shall not relieve Customer of the obligation to pay all future amount due under all Order Forms.

d.                   Retrieval of Customer Data. During the Order Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Fastpath and Customer will find a reasonable method to allow Customer access to Customer Data. At the end of the Order Term, and subject to Section 5(b), Fastpath will delete the Customer Data remaining on the servers hosting the Service.

e.                   Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Fastpath reserves the right to immediately suspend Customer’s access to and use of the Service: (i) for Customer’s breach or alleged breach of Section 6(c); (ii) if suspension is necessary to avoid harm to Fastpath or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Fastpath’s control; (iii) to prevent or stop the conduct of illegal activity or suspected illegal activity; (iv) to prevent or mitigate damage to Fastpath’s systems or any data stored on such systems; (v) in response to a court order or other lawful order from a law enforcement or other agency; (vi) if Customer is thirty (30) days or more overdue on a payment; or (vii) this Agreement or an Order Form expires or is terminated.

f.                    Protection and Security. Upon Customer’s request, Fastpath will at least annually provide Customer with a copy of Fastpath’s then-current SOC1 and SOC2 audit reports or comparable industry-standard successor reports prepared by Fastpath’s independent third party auditor. Fastpath will implement technical and organizational measures to protect the personal data processed as part of the Service as described in the data processing addendum (“Data Processing Addendum” or “DPA”).

4.                   Fees and Payment.

a.                   Invoices and Payment. Customer shall pay Fastpath the Fees set forth in an Order Form within the agreed payment terms. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Fastpath may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. Customer shall reimburse Fastpath for all reasonable costs incurred by Fastpath in collecting any late payments or interests, including attorneys’ fees, court costs, and collection agency fees.

b.                   Non-cancelable and Non-refundable. Except as specifically permitted under an Order Form, all payment obligations under any and all Order Forms are non-cancelable, and all payments made are non-refundable.

c.                   Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Fastpath’s income.

5.                   Confidential Information.

a.                   Use of Confidential Information; Protective Measures.

(1)                The Confidential Information of each Party is the property of that Party, and other than as set forth in this Agreement, the receiving Party obtains no interest in or to the Confidential Information of the disclosing Party.

(2)                The receiving Party shall use at least the same degree of care to protect the disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but shall use at least reasonable care.

(3)                Each Party shall: (i) hold in confidence all Confidential Information of the other Party; (ii) use such Confidential Information only to perform its obligations or exercise its rights under this Agreement; and (iii) not transfer, display, convey or otherwise disclose or make available such Confidential Information to any person or entity except to its respective Receiver Personnel.

(4)                The receiving Party shall cause any person or entity to which it discloses the disclosing Party’s Confidential Information to handle such Confidential Information in compliance with this Agreement and is liable to the disclosing Party for any failure of persons or entities to do so to the same extent as if such failure had been that of the receiving Party. This clause (4) will not be interpreted as permission for the receiving Party to disclose the disclosing Party’s Confidential Information to any person or entity that does not meet the definition of Receiver Personnel.

(5)                The receiving Party may disclose the Confidential Information of the disclosing Party in response to a valid court order, law, rule, regulation, or other governmental action on the condition that the receiving Party (i) promptly delivers written notice of the impending disclosure to the disclosing Party such that the disclosing Party will have a reasonable opportunity to obtain a protective order, (ii) complies with all reasonable directions of the disclosing Party with respect to such disclosure, and (iii) assists the disclosing Party, at the disclosing Party’s expense, in any attempt to limit or prevent the disclosure of the Confidential Information. If there is not sufficient time to provide such notice to the disclosing Party, the receiving Party shall provide such notice to the disclosing Party as soon as practicable and disclose the minimum amount of Confidential Information legally required.

(6)                The Parties’ obligations under this section will survive for three (3) years following termination of this Agreement, except for Confidential Information, which is a trade secret, which shall be kept confidential by the receiving Party perpetually, unless, such Confidential Information loses its trade secret protection other than due to an act or omission of the receiving Party.

b.                   Destruction of Confidential Information. Upon written notice from the disclosing Party or upon the termination, cancellation, or expiration of this Agreement for any reason, the receiving Party shall (a) at its own expense, promptly destroy the disclosing Party’s Confidential Information and, upon written request of the disclosing Party, provide the disclosing Party with certification of such destruction by written notice, and (b) cease all further use of the other Party’s Confidential Information, whether in tangible or intangible form, except in either case for (x) any Confidential Information that the receiving Party is required to retain pursuant to any applicable law, (y) copies of executed contractual documents or other materials customarily held by the receiving Party as archival material, and (z) any Confidential Information stored by the receiving Party in such a way that it would be commercially impracticable to delete such Confidential Information. With respect to Confidential Information retained pursuant to the foregoing proviso, the receiving Party’s obligations under this Section 5 will survive the termination of this Agreement until the receiving Party destroys such Confidential Information.

6.                   Proprietary Rights.

a.                   Ownership and Reservation of Rights to Fastpath Materials. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Service, Fastpath Materials, or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title, and interest in and to the Service, the Fastpath Materials, and the Third-Party Materials are and will remain with Fastpath and the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any Fastpath Materials except as expressly set forth in Section 6(b). All other rights in and to the Fastpath Materials are expressly reserved by Fastpath. Notwithstanding anything to the contrary in this Agreement, Fastpath may collect and use Usage Data to develop, improve, support, and operate its products and services. Fastpath shall have a royalty-free, world-wide, transferrable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancements, requests, recommendations or other feedback (collectively, the “Feedback”) provided by Customer relating to the operation of the Service. For the avoidance of doubt, Usage Data, Feedback, or any other information reflecting the access or use of the Service by or on behalf of Customer or Customer’s users shall not be considered “Customer Data”.

b.                   Grant of Rights. Fastpath hereby grants Customer a non-exclusive, non-transferable right to use the Service and Documentation, solely for the internal business purposes of Customer and solely during the Term, subject to the terms and conditions of this Agreement within the scope of use defined in the relevant Order Form.

c.                   Restrictions. Customer shall not: (i) copy, modify, or create derivative works or improvements of the Service; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Service to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (iv) bypass or breach any security device or protection used by the Service or access or use the Service other than through the use of valid access credentials; (v) input, upload, transmit, or otherwise provide to or through the Service, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, or network or any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; (vi) remove, delete, alter, or obscure any trademarks, warranties, disclaimers, or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices from any Service, including any copy thereof; or (vii) access or use the Service for purposes of competitive analysis of the Service, the development, provision, or use of a competing software or product or any other purpose that is to Fastpath’s detriment or commercial disadvantage.

d.                   Ownership and Reservation of Rights to Customer Data. As between Customer and Fastpath, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6(e).

e.                   Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to the Customer Data as are necessary or useful to enforce this Agreement and exercise Fastpath’s rights and perform Fastpath’s obligations hereunder.

7.                   Warranties and Disclaimers.

a.                   Warranties. Each Party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all applicable laws. Fastpath warrants that during the Term, the Service shall materially comply with any Documentation for the Service provided by Fastpath to Customer. In the event of a breach of the foregoing warranty by Fastpath, (i) Fastpath shall correct the non-conforming Service at no additional charge to Customer, or (ii) in the event Fastpath is unable to correct such deficiencies after a commercially reasonable timeframe following the date the deficiency was reported by Customer to Fastpath, Fastpath shall refund Customer any pre-paid unused Fees that are attributable to the defective Service from the date Fastpath received such notice; provided, the foregoing obligations are contingent upon the following: (a) Customer shall notify Fastpath at support@gofastpath.com within thirty (30) days of identifying a deficiency; and (b) Customer shall provide and make available to Fastpath appropriate management and technical personnel who will cooperate with Fastpath and timely respond to all communications which Fastpath requires in order to comply with the warranties set forth herein. The remedies set forth in this subsection shall be Customer’s sole remedy and Fastpath’s sole liability for breach of these warranties.

b.                   DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE AND FASTPATH MATERIALS ARE PROVIDED “AS IS.” FASTPATH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, FASTPATH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR FASTPATH MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

8.                   Indemnification.

a.                   By Fastpath. Fastpath shall defend Customer, at Fastpath’s expense, from any Claim against Customer by a third party alleging that Customer’s use of the Service (excluding Customer Data and Third-Party Materials) in accordance with the Agreement (including the Documentation) infringes or misappropriates such third party’s US Intellectual Property Rights, and Fastpath shall indemnify and hold Customer harmless against any Losses relating to such third party Claim.

b.                   By Customer. Customer shall defend Fastpath, at Customer’s expense, from any Claim against Fastpath by a third party that arises out of or results from, or is alleged to arise out of or result from Customer Data, including any processing of Customer Data by or on behalf of Fastpath in accordance with this Agreement, and Customer shall indemnify and hold Fastpath harmless against any Losses relating to such third party Claim.

c.                   Conditions. The indemnitor’s obligations in Sections 8(a) and 8(b) are conditioned on: (a) indemnitee promptly giving written notice of the third party Claim to indemnitor (although a delay of notice will not relieve the indemnitor of its obligations under this section except to the extent that the indemnitor is prejudiced by such delay); (b) indemnitor assuming the defense and settlement of the third party Claim (unless such settlement does not include an unconditional release of all liability of all third party Claims pending against the indemnitee to extent covered by this Section 8 provided that indemnitee may join in the defense and settlement of such third-party Claim at Customer’s expense; and (c) indemnitee providing to indemnitor, at indemnitor’s cost, all reasonable assistance.

d.                   Exceptions. Fastpath shall have no liability for third party Claims or Losses to the extent arising from: (i) Third-Party Materials or Customer Data; (ii) access to or use of the Fastpath Materials in combination with any other product, service or device not provided by Fastpath, unless otherwise expressly permitted by Fastpath in writing; (iii) modification of the Fastpath Materials other than by or on behalf of Fastpath; (iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Fastpath; or (v) use of the Fastpath Materials in a manner prohibited by this Agreement or the Documentation.

e.                   EXCLUSIVE REMEDY. THE PROVISIONS OF THIS SECTION 8 SET FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIMS COVERED BY THIS SECTION. FASTPATH MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNIFICATION OR REPLACEMENT COVENANTS OF ANY KIND WITH RESPECT TO THIRD-PARTY PRODUCTS.

9.                   Liability.

a.                   Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 9(b), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR OR RESPONSIBLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES, OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS AND OPPORTUNITY COSTS, LOSS OF USE OR LOSS OF DATA OR INFORMATION OF ANY KIND, HOWEVER CAUSED) IN CONNECTION WITH THIS AGREEMENT EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS SET FORTH OF SECTION 9(b), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GENERAL LIABILITY CAP. FASTPATH’S PRICING REFLECTS THE ALLOCATION OF RISK AND LIMITATIONS ON LIABILITY CONTAINED IN THIS AGREEMENT. THE PROVISIONS OF THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE. EXCEPT FOR CLAIMS RELATING TO PROPRIETARY RIGHTS OR OBLIGATIONS TO PAY AMOUNTS DUE OR OWING, NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER SUCH CLAIM ACCRUED.

b.                   Section 9(a) will not apply to Losses: (a) arising under either Party’s indemnification obligations in this Agreement; (b) resulting from fraud, gross negligence, or intentional misconduct; (c) arising in connection with either Party’s breach of the confidentiality obligations set forth in Section 5; and (d) arising in connection with Customer’s breach of the: (i) the payment obligations in Section 4, or (ii) the proprietary rights provisions in Section 6.

10.               Miscellaneous.

a.                   Affiliates. Any Affiliate of Customer may enter into an Order Form for the Service. In such event, the Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to the Affiliate.

b.                   Independent Contractor Relationship. Nothing in this Agreement is intended or will be construed to create or establish any agency, partnership or joint venture relationship between the Parties. The Parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder, and agree that the Parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Customer has no authority to act as agent for, or to incur any obligations on behalf of or in the name of, Fastpath.

c.                   Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Fastpath’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

d.                   Governing Law; Jurisdiction; Disputes. The laws of the State of New York govern all matters arising out of this Agreement, excluding rules of conflicts of law that would result in the choice of another jurisdiction’s laws, except that the Uniform Computer Information Transactions Act will not apply even if adopted as part of the laws of the State of New York. The Parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement. Without prejudice to Section 10(i), the Parties hereby irrevocably consent to the jurisdiction of the courts within the Borough of Manhattan, New York City, New York with respect to all disputes arising out of or relating to this Agreement. To the extent applicable, in the event of any lawsuit between the Parties arising out of or related to this Agreement, the Parties hereby agree to waive their respective rights to a trial by jury. If any legal proceeding at law or in equity arises between the Parties in connection with this Agreement, the prevailing Party will be awarded reasonable expert witness fees, reasonable attorneys’ fees and any other expenses incurred in connection with such legal proceedings.

e.                   Waiver. The failure of either Party at any time to require performance by the other of this Agreement will in no way affect that Party’s right to enforce such provision, nor will the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.

f.                    Severability. The provisions of this Agreement are intended to be severable. If, for any reason, any provision of this Agreement is held invalid or unenforceable in whole or in part in any jurisdiction, such provision, as to such jurisdiction, will be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction. The Parties will replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the original provision.

g.                   Survival. The following provisions will survive the termination, expiration, or cancellation of this Agreement for any reason: 5 (Confidential Information), 6 (Proprietary Rights), 8 (Indemnification), 9 (Limitation of Liability), and 10 (Miscellaneous).

h.                   Notices. Any notice made in relation to this Agreement will be deemed sufficient if made in writing and: (i) deposited in the United States mail, postage prepaid, registered or certified mail or overnight mail, addressed and delivered to the other Party at the address set for on the Order Form. Notwithstanding the foregoing, Fastpath may deliver notices electronically, and any such notice will be deemed delivered upon dispatch.

i.                     Dispute Resolution. Before initiating legal action against the other Party relating to a dispute herein, the Parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. To this end, either Party may request that each Party designate an officer or other management employee with authority to bind such Party to meet to resolve the dispute or claim. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts under this Section, either Party may pursue formal legal action. This Section will not apply if: (i) expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled; (ii) a Party is bringing an action or claim to enforce the confidentiality obligations or proprietary rights set forth herein; or (iii) a Party is bringing an action or claim to prevent imminent and irreparable harm with no adequate remedy at law from the dispute resolution procedures set forth in this Section.

j.                     Force Majeure. With the exception of Customer’s obligation to pay amounts due and owing, neither Party shall be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or internet service interruptions, third Party networks or other acts or causes reasonably beyond the control of that Party. The Party experiencing the force majeure event agrees to give the other Party notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable. Notwithstanding the foregoing, if a force majeure event delays either Party’s performance under this Agreement or any applicable Order Form for more than thirty (30) days, the other Party may terminate, in whole or in part, this Agreement or such Order Form.

k.                   Entire Agreement. This Agreement constitutes the entire understanding between the Parties with respect to all matters contained in this Agreement, and supersedes all oral or written agreements or understandings between the Parties and/or any third party integration partner on the matters contained in this Agreement. No modification, addition, waiver or cancellation of any provision of this Agreement will be valid except by a writing signed by both Parties. In the event of a conflict among terms in this Agreement, the following is the order of precedence in interpretation: (a) Order Forms; (b) the main text of this Agreement, not including any attachments or exhibits hereto (other than Attachment 1); and (c) the attachments and exhibits hereto. The foregoing order of precedence applies except to the extent explicitly overridden in this Agreement with respect to specifically identified terms.

l.                     No Publicity. Neither Party may use the other Party’s name or Marks or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, without the prior written consent of the other Party.

m.                 Non-Solicitation. During the Term, neither Customer nor Fastpath shall directly solicit employment of any employee of the other who is directly involved in the performance of such Order Form without the prior written consent of the other Party. Notwithstanding the foregoing, this paragraph shall not restrict the right of either Party to solicit or recruit generally, and shall not prohibit either Party from hiring, without prior written consent, the other Party’s employee who answers any advertisement or who otherwise voluntarily applies for hire without having been personally solicited or recruited by the hiring Party.

n.                   Equitable Relief. The Parties acknowledge that each Party may have no adequate remedy at law if there is a breach or threatened breach of Sections 5 (Confidential Information) or 6 (Proprietary Rights). Accordingly, the non-breaching Party may seek injunctive or other equitable relief without requirement of a bond or notice to prevent or remedy such a breach in addition to any legal remedies available to that Party. Neither Party shall object or defend against such action on the basis that monetary damages would provide an adequate remedy.

o.                   Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original, and such counterparts together will constitute one and the same instrument. Execution may be effected by delivery of scanned images of signatures.

p.                   Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

q.                   Interpretation.

(1)                The words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”.

(2)                The word “or” is not exclusive.

(3)                The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument.

ATTACHMENT 1
DEFINED TERMS

1. DEFINED TERMS.

• “Affiliate” means, with respect to a Party, that Party’s parents, subsidiaries or any other entity that directly or indirectly Controls, is Controlled by, or is under common Control with that individual, organization or entity at any time during the Term. “Control” (including, with correlative meanings, the terms “Controlled by” and “under common Control with”), means the possession, directly or indirectly, of the power to direct or exercise a controlling influence over the management or policies of such entity, whether through the ownership of voting securities or by contract.
• “Agreement” has the meaning set forth in the preamble.
• “Claim” means any claim, demand, suit, or other legal proceeding made or brought against a Party to this Agreement.
• “Confidential Information” means any non-public information of the disclosing Party that is either marked “Confidential” or “Proprietary” or under the circumstances of disclosure or due to the nature of the information should reasonably be considered confidential. Fastpath Confidential Information includes the Fastpath Materials and terms of this Agreement. Confidential Information does not include information that (i) is in or enters the public domain without breach of this Agreement and through no act of the receiving Party, (ii) the receiving Party was lawfully in possession of without any obligation of confidentiality or nondisclosure prior to receiving it from the disclosing Party, (iii) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the disclosing Party’s Confidential Information, or (iv) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
• “Customer” has the meaning set forth in the preamble.
• “Customer Data” means the electronic data or information submitted by Customer to Fastpath for the Service. For the avoidance of doubt, Customer Data does not include Usage Data or any other information reflecting the access or use of the Service by or on behalf of Customer.
• “Documentation” means any manuals, instructions, or other documents or materials that Fastpath provides or makes available to Customer which describe the functionality, components, features, or requirements of the Service, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
• “Effective Date” has the meaning set forth in the preamble.
• “Fastpath Materials” means the Service, Documentation and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions that provided or used by Fastpath in connection with the Service or otherwise comprise or relate to the Service. For the avoidance of doubt, Fastpath Materials includes Usage Data and any information, data, or other content derived from monitoring Customer’s access to or use of the Service, but does not include Customer Data.
• “Fees” means all amounts invoiced and payable by Customer for the Service.
• “General Liability Cap” means the total amount of Fees paid by Customer to Fastpath in the prior twelve (12) months under the applicable Order Form to which such liability relates.
• “Intellectual Property” means: (i) works of authorship, including computer programs; (ii) inventions (whether or not patentable); (iii) trade secrets; and (iv) Marks.
• “Intellectual Property Rights” means any and all worldwide copyrights, patents, moral rights, Marks, and all other rights in Intellectual Property existing now or in the future, and any and all applications and registrations therefor.
• “Losses” means any damages or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees).
• “Marks” means any word, name, symbol, or device or any combination thereof, used to identify and distinguish goods or services from another source, including domain names and trade dress.
• “Order Renewal Term” has the meaning set forth in Section 3(a).
• “Order Term” has the meaning set forth in Section 3(a).
• “Order Form” means the ordering document under which Customer will have access to and use of the Service pursuant to this Agreement and that has been fully executed by the Parties.
• “Receiver Personnel” means the directors, officers, employees, agents, contractors, accountants, auditors and legal and financial advisors of a Party who (i) need to know such Confidential Information in order to allow such Party to perform its obligations or exercise its rights under this Agreement and (ii) are under confidentiality, privacy and data security obligations at least as protective as those set forth in this Agreement as applicable and with respect to the kinds of Confidential Information those personnel receive where such obligations are memorialized in written, valid and enforceable agreements with such entities.
• “Service” means Fastpath’s software-as-a-service application and Updates as described in the Documentation and subscribed to under an Order Form.
• “Service Level Agreement” or SLA” means the applicable Fastpath service level availability policy for the applicable Service, which may be updated by Fastpath from time to time.
• “Support Services Supplement” means the applicable supplement describing enhanced Fastpath support and maintenance services available for purchase by Customer on the Fastpath Order Form.
• “Term” has the meaning set forth in Section 3(a).
• “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Service that are not proprietary to Fastpath.
• “Updates” has the meaning set forth in Section 2(c).
• “Usage Data” means query logs, and any data (other than Customer Data) relating to the operation, support and/or about Customer’s use of the Service.