NEON MASTER SUBSCRIPTION AGREEMENT

This Agreement is entered into by and between B ATOMIC LLC, a Delaware limited liability company (“B Atomic”) and the customer identified in the corresponding Purchaser Order(s) referencing this Agreement (“Customer”). B Atomic and Customer are each sometimes referred to herein as a “Party” and collectively as the “Parties”.

This Agreement is effective as of the earlier of the date of the Purchase Order or the date Customer acknowledges acceptance of this Agreement (the “Effective Date”). Customer accepts and agrees to the terms and conditions of this Agreement by either (a) executing a Purchase Order referencing this Agreement; or (b) clicking a box acknowledging Customer’s acceptance of this Agreement. The individual executing such Purchase Order or clicking such box, is accepting the terms and conditions of this Agreement on behalf of the Customer, and represents and warrants that such individual has the authority to bind Customer to terms this Agreement.

Recitals:

B Atomic is in the business of developing, improving and customizing information technology products, platforms and services for independent insurance agencies and carriers.

B Atomic has developed an integrated, scalable business automation system for insurance agents that is built on the SalesForce platform and designed to enable insurance agents to automate their business processes and capture and utilize anonymized customer data to create customer insights and improve the customer experience and support the agent’s business (“Neon”).

B Atomic has developed an application consisting of an automated and integrated marketing platform and system for insurance agents and carriers that integrates machine learning and predictive analytics and interoperate with SalesForce Marketing Cloud, other SalesForce products and applications and Veruna’s Agency Management System (the “Neon Marketing Solution”).

B Atomic has entered into a Master Subscription Agreement with Salesforce.com, Inc. and/or one or more of its affiliates or contracting entities (collectively, “Salesforce”) dated January 31st, 2020 (the “SalesForce MSA”). Pursuant to the SalesForce MSA, B Atomic purchased subscriptions for certain SalesForce Marketing Cloud products, platforms and services (the “SalesForce Subscriptions”), which SalesForce granted B Atomic the right to resell to B Atomic Affiliates (as defined herein); and

B Atomic desires to sell to Customer, and Customer desires to purchase from B Atomic, the Deliverables (as defined herein) on the terms and conditions set forth herein.

In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

DEFINITIONS

“Anonymized Data” means electronic data and information submitted from Customer to B Atomic from which will be removed all personally identifiable information data sets to ensure the individuals or entities to whom the data relates remain anonymous.

“Authorized User” means an individual who is authorized by Customer to use the Deliverables and to whom Customer (or, when applicable, B Atomic at Customer’s request) has supplied a user identification and password (for Deliverables utilizing authentication).

“B Atomic Affiliate” includes Customer for purposes of this Agreement and the SalesForce MSA.

“Beta Products” or “Beta Services” means B Atomic products or services that may be made available to Customer to try at its option at no additional charge which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Content” means information obtained by B Atomic from publicly available sources or its third party content providers and made available to Customer through the Deliverables, Beta Products, Beta Services or pursuant to an Purchase Order, as more fully described in the Documentation.

“Deliverables” means the products, services, Content, and other deliverables, including Neon, the Neon Marketing Solution and SalesForce subscriptions, identified in Purchase Orders executed by Customer.

“Documentation” means the applicable usage guides and policies of B Atomic and SalesForce, as updated from time to time.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Marketplace” means an online directory, app exchange, catalog or marketplace of applications that interoperate with the Deliverables, including, for example, the AppExchange at http://www.salesforce.com/appexchange, or the Heroku add-ons catalog at https://elements.heroku.com/, and any successor websites.

“Non-B Atomic Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Deliverable that is provided by Customer or a third party and/or listed on a Marketplace.

“Purchase Order” means a document specifying the Deliverables to be provided that is entered into between Customer and B Atomic or any of their Affiliates, including any addenda and supplements thereto. By entering into an Purchase Order, Customer agrees to be bound by the terms of this Agreement.

“Personal Information” means information which alone or in combination with other information can identify a specific person. For the avoidance of doubt, this definition of Personal Information includes but is not limited to any information subject to data protection or data privacy laws.

USE OF DELIVERABLES.

Access to and Use of Deliverables. Conditioned upon Customer’s full and timely performance of the terms, covenants and conditions of this Agreement, B Atomic hereby grants to Customer the non-transferable, limited-term right to access and use the Deliverables during the term of this Agreement subject to and in in accordance with the terms and conditions set forth in this Agreement, any applicable Purchase Order, the SalesForce MSA, and the Documentation, which are hereby incorporated herein by reference.

Authorized Users. Customer may permit Authorized Users to use the Deliverables solely on Customer’s behalf and solely for Customer’s business operations. Customer is responsible for ensuring that Authorized Users comply the terms of this Agreement and is liable for any breach of this Agreement by any Authorized Users.

Usage Limits. The Deliverables are subject to usage limits specified in Purchase Orders and Documentation. If Customer exceeds a usage limit, B Atomic may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding B Atomic’s efforts, Customer is unable or unwilling to abide by a usage limit, Customer will execute an Purchase Order for additional quantities of the applicable Deliverables promptly upon B Atomic’s request, and/or pay B Atomic for excess usage in an amount to be determined in B Atomic’s sole, but reasonable, discretion.

Customer Responsibilities. Customer will (a) be responsible for Authorized Users’ compliance with this Agreement, the SalesForce MSA, Documentation and Purchase Orders; (b) be responsible for the accuracy of Customer data, the means by which Customer acquired Customer data, and the interoperation of any Non-B Atomic applications with which Customer uses Deliverables; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Deliverables, and notify B Atomic promptly in writing of any such unauthorized access or use, and (d) use Deliverables only in accordance with this Agreement, the SalesForce MSA and Documentation. Any use of the Deliverables in breach of the foregoing by Customer or Authorized Users may result in B Atomic’s immediate suspension of services and the Deliverables upon ten (10) days’ prior written notice.

Usage Restrictions. Customer will not (a) make any Deliverable available to anyone other than Customer or Authorized Users, or use any Deliverable for the benefit of anyone other than Customer or its affiliates, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Deliverable, or include any Deliverable in an outsourcing offering, (c) use a Deliverable to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Deliverable to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Deliverable or third-party data contained therein, (f) attempt to gain unauthorized access to any Deliverable or its related systems or networks, (g) permit direct or indirect access to or use of any Deliverable in a way that circumvents a contractual usage limit, or use any Deliverables to access or use any of B Atomic intellectual property except as permitted under this Agreement, (h) modify, copy, or create derivative works based on a Deliverable or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein, (j) frame or mirror any part of any Deliverable, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) disassemble, reverse engineer, or decompile a Deliverable or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Deliverable, (3) copy any ideas, features, functions or graphics of the Deliverable, or (4) determine whether the Deliverables are within the scope of any patent.

B ATOMIC RESPONSIBILITIES

Provision of Deliverables. B Atomic will (a) make the Deliverables available to Customer pursuant to this Agreement and the applicable Purchase Orders and Documentation; (b) provide applicable B Atomic standard support for the Deliverables to Customer; (c) use commercially reasonable efforts to make any online Deliverables available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which B Atomic shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond B Atomic’s reasonable control, including, for example, an act of God, pandemic, epidemic, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-B Atomic Application, unavailability or temporary down-time of any dependent SalesForce application, or denial of service attack; and (d) provide the Deliverables in accordance with laws and government regulations applicable to B Atomic’s products or services to its customers generally, and subject to Customer’s use of the Deliverables in accordance with this Agreement, the Documentation, SalesForce MSA, and the applicable Purchase Order.

Protection of Customer Data. B Atomic will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer data.

Beta Products and Services. From time to time, B Atomic may make Beta Products and Services available to Customer at no charge. Customer may choose to try such Beta Products and Services or not in its sole discretion. Beta versions of B Atomic’s Products and Services may contain bugs, errors, or other issues. Beta Products and Services are provided “AS-IS” without any express or implied warranty or indemnity for any problems or issues. B Atomic shall not have any liability relating to Customer’s use of B Atomic Beta Products or Services.

NON-B ATOMIC PRODUCTS AND SERVICES

Non-B Atomic Products and Services. B Atomic or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-B Atomic provider, product or service is solely between Customer and the applicable non-B Atomic provider. B Atomic does not warrant or support Non-B Atomic Applications or other non-B Atomic products or services, unless expressly provided otherwise in an Purchase Order. B Atomic is not responsible for any disclosure, modification or deletion of Customer data resulting from access by such Non-B Atomic Application or its provider.

Integration with Non-B Atomic Applications. The Deliverables may contain features designed to interoperate with Non-B Atomic applications, including SalesForce and Veruna applications. B Atomic cannot guarantee the continued availability of such service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-B Atomic application ceases to make the Non-B Atomic Application available for interoperation with the corresponding Deliverable features in a manner acceptable to B Atomic.

FEES AND PAYMENT

Fees. Customer will pay all fees specified in Purchase Orders. Except as otherwise specified herein or in an Purchase Order, (i) fees are based on the Deliverables purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant term.

Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the relevant Purchase Order. Unless otherwise stated in the Purchase Order, fees are due net 30 days from the invoice date. If any invoiced amount is not received by B Atomic by the due date, then without limiting B Atomic’s rights or remedies, those charges shall accrue interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any charge owing by Customer is 30 days or more overdue, B Atomic may, without limiting its other rights and remedies, suspend services and use of the Deliverables until such amounts are paid in full, provided that B Atomic has given Customer at least seven (7) days’ prior notice that its account is overdue.

Taxes. B Atomic's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If B Atomic has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, B Atomic will invoice Customer and Customer will pay that amount unless Customer provides B Atomic with a valid tax exemption certificate authorized by the appropriate taxing authority.

PROPRIETARY RIGHTS AND LICENSES

Reservation of Rights. Subject to the limited rights expressly granted hereunder, B Atomic reserves all of its right, title and interest in and to the Deliverables, including all of their related intellectual property rights. B Atomic owns and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Deliverables and any corrections, bug fixes, enhancements, updates, derivative works and/or other modifications to the Deliverables, whether made by B Atomic, Customer or any third party. The license(s) and rights granted under this Agreement do not provide Customer with title to or ownership of the Deliverables or any B Atomic product, but only a right of limited use under the terms and conditions of this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein.

License by Customer to Use Feedback. Customer grants to B Atomic and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into B Atomic’s products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of B Atomic’s Deliverables, products, platforms or services. Customer acknowledges that B Atomic may access Customer data incorporated into or utilized in connection with the Deliverables for the purpose of training and improving similar or related products, services and features, and Customer authorizes and licenses B Atomic to process its Customer data for such purpose. Notwithstanding anything in this Agreement to the contrary, B Atomic shall have the right to retain, utilize, commercialize, use, reproduce, copy, modify, publish, distribute, license, sell, offer for sale, create derivative works thereof, or otherwise exploit any information or feedback provided by Customer that is codified or otherwise integrated into the Deliverables or B Atomic’s products. Nothing contained in this Agreement shall obligate Customer to share inventions, discoveries, applications or improvements to B Atomic that Customer does not wish to be integrated into the Deliverables or B Atomic’s products.

Sharing of Anonymized Data. Customer shall, with the assistance of B Atomic, automate its business processes to capture, accumulate and share with B Atomic Anonymized Data, including anonymized customer data. The Parties shall not share or disclose any Personal Information with or to each other. The Parties shall take all necessary steps to ensure the Customer’s information, customer data, and other information exchanged between the Parties is anonymized to fullest extent necessary to ensure the non-disclosure of Personal Information. Each party shall adopt operating procedures and processes, subject to the other Party’s review and approval, to ensure data is anonymized and sharable with the other Party. B Atomic shall have the right to retain, utilize, commercialize, use, reproduce, copy, modify, publish, distribute, license, sell, offer for sale, create derivative works thereof, or otherwise exploit any Anonymized Data provided by Customer. B Atomic shall take all steps necessary to ensure Customer’s anonymized data is not shared with other B Atomic customers until such time as such data is fully anonymized.

Aggregated Data. Customer hereby grants B Atomic a non-exclusive, "as-is," perpetual, royalty free license to use Aggregated Data (defined below) for the purpose of developing and improving the Deliverables and B Atomic’s products, and aggregating, anonymizing and de-identifying such Aggregated Data for purposes of running statistics, analytics, performing benchmarking and routing anonymized data to B Atomic’s Data Lake, Data Warehouse and customers. For purposes of this Agreement, "Aggregated Data" means customer data that is de-identified in accordance with law and combined with other similar data of other insurance agencies, insurance carriers and B Atomic customers. Aggregated Data shall not include any (i) Personal Information, (ii) information identifying the Customer or any identifiable customer of Customer; (iii) Customer Confidential Information (as defined herein); or (iv) Customer intellectual property rights or proprietary information. B Atomic shall comply with all data privacy and data security requirements set forth in this Agreement with respect to the use of the Aggregated Data.

Data Protection and Security. If, despite the covenants set forth in the preceding paragraph, a Party shares or discloses any Personal Information to other Party, the Parties acknowledge and agree they are separate, independent controllers of personal data; each Party will be autonomous and fully independent in regards to determining the nature, scope and purpose of processing personal data under the Agreement. Both Parties shall be individually subject to and responsible for complying with the obligations imposed on a controller under Applicable Data Protection Law. The Parties acknowledge their respective roles under Applicable Data Protection Law, and facilitate communication and assistance between the Parties in their compliance with Applicable Data Protection Law. In no event shall the Parties be considered joint controllers of as defined in Article 26 of the GDPR or any Applicable Data Protection Law. The Parties agree to assist one another, upon request, in ensuring compliance with each Party’s obligations under Applicable Data Protection Law, taking into account the nature of processing and the information available to the Parties, without assuming any liability or obligations of the other Party. The Parties, as independent controllers, recognize the following mutual obligations:

to maintain proper records of all processing of Personal Information;

to respect the fundamental rights of data subjects and the obligations of a controller with respect to personal data protection under Applicable Data Protection Law;

to implement appropriate technical and organizational measures to prevent unlawful disclosure, unauthorized processing of or accidental loss, destruction, damage or alteration of personal data, considering the state of the art of data protection technology, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights of natural persons;

to document and demonstrate compliance with Applicable Data Protection Law; and

to notify the other Party of any relevant complaint or request by a data subject under the Agreement, and provide the other Party with relevant details of how it shall resolve or respond to the request or complaint.

License by Customer to Use Anonymized Data and Create Derivative Works. Customer grants to B Atomic and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to (a) use the Anonymized Data for any lawful purpose; (b) pool and aggregate the Anonymized Data with Anonymized Data obtained from other B Atomic customers and affiliates; (c) incorporate the Anonymized Data into B Atomic’s products, platforms and services; (d) create derivative works, products, platforms and services from the Anonymized Data (the “Derivative Works”); and (e) to sell the Anonymized Data and Derivative Works to third parties. The prices set forth in Customer’s Purchase Order reflect Customer’s agreement to (a) share Anonymized Data with B Atomic during the term of this Agreement; and (b) permit B Atomic to utilize such Anonymized Data and Derivative Works for its commercial interests as it deems appropriate.

Additional License by Customer to B Atomic. Customer grants B Atomic, its affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-B Atomic applications and program code created by or for Customer using a B Atomic Deliverable or for use by Customer with the Deliverables, and Customer data, each as necessary for B Atomic to provide and ensure proper operation of, the Deliverables and associated systems in accordance with this Agreement. If Customer chooses to use a Non-B Atomic application with a Deliverable, Customer grants B Atomic permission to allow the Non-B Atomic application and its provider to access Customer data as required for the interoperation of that Non-B Atomic application with the Deliverables. Subject to the limited licenses granted herein, B Atomic acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Non-B Atomic application or such program code.

CONFIDENTIALITY

Safeguarding Confidential Information. Each Party shall, and shall ensure that its officers, directors, consultants, employees, subcontractors, agents and representatives (collectively the “Representatives”), shall keep confidential (using at least the same standard of care as it uses to protect proprietary or confidential information of its own, but in no event less than reasonable care) and not publish or otherwise disclose and not use for any purpose except as permitted herein, any Confidential Information furnished to it by the other Party pursuant to this Agreement. Upon request of the disclosing Party, the recipient shall return all Confidential Information of the discloser or destroy all such information and certify such destruction in writing to the discloser.

Permitted Disclosure. Either Party may disclose the Confidential Information belonging to the other party solely to the extent such disclosure is necessary in the following instances: (a) complying with applicable governmental regulations; and (b) disclosure to such Party’s Representatives whose job performance requires such access in connection with the performance of this Agreement, provided that each Party shall take all necessary steps to ensure that any persons permitted to access such Confidential Information are legally bound to hold all such Confidential Information in confidence without further disclosure to any third party. Notwithstanding anything contained in this Agreement to the contrary, both Parties may disclose to agents, customers, potential customers, vendors, and potential vendors: (i) the existence, but not the specific terms, of this Agreement; (ii) the relationship between B Atomic and Customer; (iii) the collaborative efforts undertaken by B Atomic and Customer; and (iv) such Non-Confidential Information as each Party reasonably deems necessary or beneficial to further the purposes of this Agreement.

Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means any information, in whatever form, whether written, electronically stored, orally transmitted or memorialized, that is disclosed by a Party to the other Party, including without limitation, Personal Information, as hereafter defined, and information relating to a Party’s business activities, know how, advertising, business plans, competitive strategies, financial plans, forecasts and performance, vendor relationships, trade secrets, product characteristics, demographics, information technology, systems, market research, general customer information and other confidential business information related to the conduct or strategy of the business of a Party, and any other information provided to a Party which by its nature would reasonably be considered confidential. Confidential Information shall not include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the Party receiving such information; (iii) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the recipient without use of, or reference to, any Confidential Information of the other Party; or (v) is approved for release or disclosure by the disclosing Party without restriction. Confidential Information includes the terms and conditions of this Agreement.

Additional Restrictions. In addition to the restrictions set forth above, (a) the recipient shall not duplicate or incorporate Personal Information into its own records or databases; (b) the recipient shall notify the disclosing Party promptly upon the discovery of the loss, unauthorized disclosure or unauthorized use of the Confidential Information and shall indemnify the disclosing Party and hold the disclosing Party harmless for such loss, unauthorized disclosure or unauthorized use, including any costs related to notifying customers, regulators or third parties and any attorneys’ fees; and (c) the recipient shall establish and maintain commercially reasonable security procedures designed to protect the confidentiality, integrity and availability of the discloser’s Confidential Information using and maintaining administrative, technical and physical safeguards consistent with the highest industry standards and all applicable laws to protect against anticipated threats or hazards to, or the unauthorized access, disclosure or use of, the other Party’s Confidential Information.

Compelled Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party to the extent compelled by law to do so, provided the receiving Party gives the disclosing Party no less than fourteen (14) days’ prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party's cost, if the disclosing Party wishes to contest the disclosure.

REPRESENTATIONS AND WARRANTIES

B Atomic Representation and Warranties. B Atomic represents and warrants that: (a) the Deliverables will perform materially in accordance with the applicable Documentation; (b) the overall functionality and security of the Deliverables will not materially decrease during the term of this Agreement; (c) it shall take all steps necessary to ensure Customer’s data is not shared with other B Atomic customers until such time as the Customer’s data is fully anonymized; (d) the Deliverables as delivered will be free from any Malicious Code at the time of delivery; (e) the Deliverables will not infringe, misappropriate, violate or otherwise conflict with any intellectual property rights of any third party; and (e) it will comply with all applicable laws, rules and regulations.

Customer Representations and Warranties. Customer represents and warrants that: (a) the Customer data or other deliverables as delivered will be free from any Malicious Code at the time of delivery; (b) the Customer deliverables will not infringe, misappropriate, violate or otherwise conflict with any intellectual property rights of any third party; (c) it shall take all steps necessary to ensure Customer’s data is not shared with B Atomic until such time as the Customer’s data is fully anonymized; and (d) it will comply with all applicable laws, rules and regulations.

Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

INDEMNIFICATION

Indemnification by B Atomic. B Atomic shall defend, indemnify, and hold harmless Customer and its officers, directors, owners, members, managers, agents, and employees (the “Customer Indemnitees”) from and against all costs, expenses (including reasonable attorneys’ fees and costs), losses, liabilities, fines, penalties, judgments, actions, claims and damages (collectively, the “Claims”) to the extent based on or arising from (a) any breach of this Agreement by B Atomic; (b) any third party claim that the Deliverables infringe upon or misappropriate a third party’s copyright (excluding any such claims that arise from the use by B Atomic of any work product provided by Customer); or (c) any claim arising from B Atomic’s failure to comply with any open source or third party license; provided Customer (i) promptly gives B Atomic written notice of the any such Claims, (ii) gives B Atomic sole control of the defense and settlement of the Claims (except that B Atomic may not settle any Claims unless it unconditionally releases Customer of all liability), and (iii) gives B Atomic all reasonable assistance, at B Atomic’s expense.

B Atomic Infringement Provisions. If B Atomic receives information about an infringement or misappropriation claim related to any of the Deliverables, B Atomic may in its discretion and at no cost to Customer (i) modify the Deliverables so that they are no longer claimed to infringe or misappropriate, without breaching B Atomic’s warranties under this Agreement, (ii) obtain a license for Customer’s continued use of that Deliverable in accordance with this Agreement, or (iii) terminate Customer’s right to use that Deliverable upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the use for such Deliverable. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Deliverables are the basis of the Claims; (2) a Claim arises from the use or combination of the Deliverables or any part thereof with software, hardware, data, or processes not provided by B Atomic, if the Deliverables or use thereof would not infringe without such combination; (3) a Claim arises from Deliverables under an Purchase Order for which there is no charge; or (4) a Claim arises from a Non-B Atomic Application or Customer’s breach of this Agreement.

Indemnification by Customer. Customer shall defend, indemnify, and hold harmless B Atomic, its affiliates, subsidiaries and their respective officers, directors, owners, members, managers, agents, employees and the respective permitted successors and assigns of each of the foregoing (the “B Atomic Indemnitees”) from and against all Claims to the extent based on or arising from (a) any breach of this Agreement by Customer; (b) any third party claim that any Customer deliverables infringe upon or misappropriate a third party’s copyright (excluding any such claims that arise from the use by Customer of any work product provided by B Atomic); and (c) any claim arising from Customer’s failure to comply with any open source or third party license; provided B Atomic (i) promptly gives Customer written notice of any Claims against B Atomic, (ii) gives Customer sole control of the defense and settlement of the Claims (except that Customer may not settle any Claims unless it unconditionally releases B Atomic of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense.

Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other party for any third party claim described in this section.

LIMITATION OF LIABILITY

Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE DELIVERABLES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

TERM AND TERMINATION

Term of Agreement. This Agreement and Customer’s right to use the Deliverables shall commence on the date B Atomic makes the Deliverables available to the Customer (the “Effective Date”) and shall continue for a term of twelve (12) months (the “Term”), unless terminated pursuant to this Agreement. This Agreement shall automatically renew for successive twelve month terms (each a “Renewal Term”) unless either party notifies the other party of its intent not to renew the Agreement and the Term, or the applicable Renewal Term, in writing at least sixty (60) days prior to the end of the then-current Term or Renewal Term.

Termination. Either Party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, 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. If this Agreement is terminated by Customer pursuant to this paragraph, B Atomic will refund Customer any prepaid fees covering the remainder of the Term of all Purchase Orders after the effective date of termination. If this Agreement is terminated by B Atomic pursuant to this paragraph, Customer will pay any unpaid fees covering the remainder of the Term of all Purchase Orders. In no event will termination relieve Customer of its obligation to pay any fees payable to B Atomic for the period prior to the effective date of termination.

GENERAL PROVISIONS

Entire Agreement and Order of Precedence. This Agreement and the applicable Purchase Order(s) are the entire agreement between B Atomic and Customer regarding Customer’s use of the Deliverables and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchase Order, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.

Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety, without the other party’s consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successor and permitted assigns.

Counterparts. This Agreement may be executed in one or more counterparts, which shall together constitute a single agreement. In the event of execution of more than one counterpart of this Agreement, B Atomic is expressly authorized to remove the signature pages from each such counterpart and attach all such signature pages to a single counterpart of this Agreement.

Further Assurances. Each of the Parties agrees, at any time and from time to time, upon the reasonable request of any other Party, to do, execute, acknowledge, and deliver, or cause to be done, executed, acknowledged, and delivered, all such further acts, documents, and instruments as may be required to effectuate any of the transactions contemplated by this Agreement.

Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation hereunder (other than payment) if the delay or failure is due to strikes, blockade, war, revolutions, riots, natural disasters, pandemics, failures of telecommunication services or the Internet, acts or omissions of third parties, or similar unforeseen events which are beyond the reasonable control of the non-performing party (“Force Majeure Event”). Such delay or failure shall be excused solely to the extent that such Force Majeure Event prevents or delays the affected party from fulfilling its obligations. Upon the cessation of a Force Majeure Event, the affected party shall promptly resume its performance of any suspended obligations.

Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, and permitted assigns.

SalesForce MSA. This Agreement is subject to the terms and conditions of the SalesForce MSA.

Governing Law. This Agreement shall be governed by and construed in accordance with laws of the State of Ohio (regardless of the laws that might be applicable under principles of conflicts of laws) as to all matters, including but not limited to matters of validity, construction, effect, and performance.

Dispute Resolution. Any dispute arising out of or relating to this Agreement including the breach, termination or validity thereof shall be resolved pursuant to the following three-step process: (1) negotiation by senior executives who have authority to settle the controversy (such negotiation shall take place within thirty (30) days from the date of written notice requesting negotiation); (2) if such negotiations do not resolve the dispute, then mediation conducted in accordance with the commercial rules and procedures of the American Arbitration Association; and (3) if such medication does not resolve the dispute, binding arbitration conducted in accordance with the commercial rules and procedures of AAA Arbitration. Any such mediation or arbitration hearings shall be conducted in Cleveland, Ohio. Judgment on any arbitration award may be entered by any court having jurisdiction thereof. All Arbitration awards are binding and non-appealable, except as otherwise provided in the United States Arbitration Act.

Severability. In the event any sentence or paragraph of this Agreement is declared by a court of competent jurisdiction to be void, that sentence or paragraph shall be deemed severed from the remainder of this Agreement, and the balance of the Agreement shall remain in effect.

Headings. The headings used in this Agreement are for convenience only and shall be ignored in interpreting this Agreement.

Waiver. No failure by any Party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy hereunder shall constitute waiver of any breach or any other covenant, duty, agreement, or condition.

Amendment; Termination. This Agreement shall be changed, modified, terminated, cancelled, or amended only by a writing signed by each of the then parties to this Agreement.

Notices. Any and all notices, and other documents and communications, permitted or required to be given pursuant to this Agreement will be deemed duly given: (i) upon actual delivery, if delivery is by hand or courier service; or (ii) upon the third day following delivery into the U.S. mail if delivery is by registered or certified return receipt requested mail. Each such notice will be sent to the respective party at the address the respective party may designate by notice delivered pursuant hereto. All notices to B Atomic shall be sent to 3505 E. Royalton Rd., Suite 110, Broadview Heights, Ohio 44147, Attn: Seth Zaremba. All notices to Customer shall be sent to any address Customer provides to B Atomic. If no such address is provided by Customer, all notices to Customer shall be sent to any Customer office or place of business.