MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (together with any applicable Sales Order(s), each as amended, restated, modified, or replaced from time to time, collectively, the “Agreement”) is made by and between Carbon6 Technologies, Inc., a Delaware corporation and each of its Affiliates that offer a Products under an applicable Sales Order, and the Customer (as defined on an applicable Sales Order).

BY USING THE SERVICES OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, BY ACCESSING OR USING ANY PRODUCT, THE CUSTOMER ACKNOWLEDGES, REPRESENTS, AND AGREES THAT CUSTOMER HAS READ AND AGREED TO BE BOUND BY AND A PARTY TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND THE CUSTOMER REPRESENTS AND WARRANTS THAT IT IS AUTHORIZED TO BIND CUSTOMER AND OTHERWISE HAS CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. CUSTOMER’S EXECUTION OF A SALES ORDER (DEFINED BELOW) WHICH REFERENCES THIS AGREEMENT REPRESENTS CUSTOMER’S OFFER TO ORDER THE PRODUCTS OR SERVICES DESCRIBED THEREIN, AND CARBON6’S ISSUANCE OF THE INVOICE UNDER A SALES ORDER AND/OR THE ACTIVATION OF THE PRODUCTS OR PROVISION OF THE SERVICES OR ANY PART THEREOF SET FORTH IN A SALES ORDER SHALL CONSTITUTE CARBON6’S ACCEPTANCE OF SUCH OFFER.

CARBON6 RESERVES THE RIGHT TO UPDATE AND CHANGE THE TERMS HEREIN BY POSTING UPDATES AND CHANGES HERE: https://www.carbon6.io/legal/master-subscription-agreement?utm_medium=PPC&utm_source=Google&utm_campaign=carbon6_brand_search&utm_content=587475629696. ANY REFERENCE TO THE AGREEMENT INCLUDES ANY AND ALL TERMS AND DOCUMENTS INCORPORATED BY REFERENCE. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE PRODUCTS AND SERVICES.

Capitalized terms not defined herein shall have the meaning set forth on an applicable Sales Order.

1. DEFINITIONS

“Additional Products” means any third-party or Affiliate products provided with or incorporated into the Services, including any Open-Source Components.
“Affiliate” of a Person means any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, the first Person.
“Authorized Users” means an employee of the Customer who Customer permits to access and use the Services on an individual basis (i.e. each Authorized User will be an individual Person assigned a unique login ID), pursuant to Customer’s license and rights under the Agreement. The number of Authorized Users shall be specified on the Sales Order, if applicable, and Authorized Users may include, subject to the express prior written consent of Carbon6, a contractor, consultant, or, an Affiliate, of the Customer.
"Carbon6" means Carbon6 Technologies, Inc., a Delaware corporation, and each Affiliate of it that offers aProduct or Service under an applicable Sales Order. In certain circumstances and as necessary ,Carbon6 Technologies, Inc. may perform this Agreement as agent for an Affiliate, or vice versa, in which case, the liability of Carbon6 Technologies, Inc. and the applicable Affiliate(s) will be several for the purposes of this Agreement.
“Control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership or voting securities, by contact or otherwise.
“Customer” has the meaning provided in the preamble of this Agreement, and includes any other Person accessing, downloading, installing, or otherwise using the Products or other Services.
“Customer Data” means all of the Customer's data processed or generated by the Product, or that is collected, downloaded or otherwise received, directly or indirectly from Customer by or through any other Services. Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services, and including, without limitation, any user account(s) or other account(s) of the Customer that Customer may provide Carbon6 or its personnel with access to in connection with the provision of certain Services.
“Data source” means a data source accessed and used by the Product to generate its output. Customer acknowledges that the Product is not a system of record, and all Customer source data remains in the Data sources from which the data processed by the Product is sourced.
“Documentation” means Carbon6’s manuals, instructions or other documents or materials that Carbon6 provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Net Revenue” means total revenue less processing fees, returns, allowances, refunds, commissions, and account administration.
“Open-Source Components" means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction, or license agreement that substantially conforms to the “Open Source Definition” as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
“Person” means an individual, corporation, unlimited liability company, partnership, joint venture, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means any information which relates to a natural person and allows that person to be identified, either directly or indirectly.
“Product” means the Carbon6 products and other Software and Solutions, as applicable, licensed under the applicable Sales Order.
“Sales Order” means Carbon6’s form of sales order that sets forth the Product or other Service(s) as applicable, to be provided by Carbon6 under this Agreement, which incorporate this Agreement by reference
“Services” means the Software and Solutions, the Products, and the Support Services, together with any associated websites, products or services offered by Carbon6 from time to time, subject to and in accordance with the Agreement.
“Software and Solutions” means Carbon6’s proprietary software application or applications, and any other third-party or other software that Carbon6 may provide access to, and use of, as part of the Services, and support that may be made available to Customer, in each case, as and to the extent defined in an applicable Sales Order, in accordance with the terms thereof.

2. LICENSE GRANT, RESTRICTIONS, AND PROHIBITIONS

License Grant. Subject to Customer’s payment of all Fees and its and each Authorized User’s compliance with this Agreement, Carbon 6 will use commercially reasonable efforts to make available to the Customer, the Product(s) or other Services, as set forth in one or more Sales Orders . Carbon6 grants to Customer a revocable, non-exclusive, non-transferrable (except as provided in Section 13.2), non-sublicensable, license to access or use, as applicable, the Services described in an applicable Sales Order during the Subscription Period (as defined herein) solely for Customer’s internal business purposes (except as otherwise provided in an applicable Sales Order and/or any product-specific terms that may be provided by Carbon6 to Customer (the “Product-Specific Terms”) in the jurisdiction, if any, described in the applicable Sales Order. Use of the Services or any part thereof is at the Customer’s sole risk and the Customer is responsible and liable for all uses of the Services resulting from access provided by Carbon6, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken or made by Customer will be deemed a breach of this Agreement by Customer.
License Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services beyond the scope expressly granted herein or otherwise except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Customer agrees to limit the use of the Services to the licensing metrics or other applicable use restrictions set forth in the applicable Sales Order and this Agreement and shall not, and shall not permit any Person to (except to the extent expressly provided in applicable Product-Specific Terms): (1) resell, sublicense, lease, time-share or otherwise make a Service available to any Person other than Authorized Users; (2) attempt to gain unauthorized access to the Services or disrupt the performance of the Services; (3) modify, copy or make derivative works based on the Services, in whole or in part; (4) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (5) access the Services to build a competitive product or service or copy its features or user interface; (6) access or use the Services for any other purposes that are or could be to Carbon 6’s detriment or commercial disadvantage; or (7) use any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source Licence.
License Prohibitions. Customer represents and warrants to, and covenants with Carbon 6 that: (i) its and its Authorized User’s use of the Services will at all times comply with all applicable laws and will not cause Carbon 6 to be non-compliant with any applicable laws; and (ii) Customer has obtained all applicable consents, and permissions and otherwise has all authority, in each case as required by and in compliance with applicable law to enable Carbon 6 to provide the Services; (iii) Customer has provided all notices and disclosures, obtained all applicable consents and permissions and otherwise has all authority with respect to Customer Data pursuant hereunder and such Customer Data will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable law. Except as expressly provided in an applicable Product-Specific Terms, Customer agrees not to use the Services, or permit the Services to be used for the following purposes: (1) product benchmarking or other comparative analysis for any external use; (2) to propagate any virus, worms, Trojan horses or other programming routines intended to damage the Services or any systems or data; or (3) filing for intellectual property rights relating to the Services.
Evaluation Subscriptions. If Customer is provided access to the Product solely for purposes of considering the purchase of a subscription to the Product, using the Product through the Free Trial, or if a Sales Order specifies that an evaluation subscription is being granted thereunder (“Evaluations''), Carbon6 hereby grants to Customer, and Customer accepts, a nonexclusive, non-transferable, non-sub-licensable, non-production, revocable, limited right to use the Product, free of charge, for the sole purpose of evaluating whether to purchase a Product subscription, subject to the terms hereof. If applicable, the evaluation period is defined in the Sales Order. If Customer is a current subscriber to the Product who has agreed to participate in testing (a “Beta Test'') of a pending release of the Product or certain features or functionality of the Product prior to general release for purposes of identifying issues and providing Feedback (as defined below), the Beta Test term is limited to the period communicated by Carbon6 to Customer, unless such period is extended at Carbon6’s sole discretion.
Product Discontinuance, etc.. Carbon6 reserves the right to discontinue deliveries of any Services including, inter alia, any Products, the manufacture, sale or use of which would or may, in Carbon6’s opinion, infringe upon any patent, trademark or design now or hereinafter issued, registered, or existing and under which Carbon6 is not licensed. In addition, Customer acknowledges and agrees that Carbon6 may deny any Person access to, or use of, the Services or any part thereof, or otherwise revoke or suspend any access thereto: (A) if Carbon6 determines, in its sole discretion that a Person's use of the Services violates or would violate any provision of this Agreement, or would otherwise be beyond the scope of the rights granted, or for a purpose not authorized under this Agreement, or in any manner that does not comply with any instruction or requirement provided by Carbon6, regardless of whether Customer designated that Person as an Authorized User; (B) to address any emergency security concerns; or (C) in the event Customer is in breach of any term of this Agreement or any other obligation to Carbon6.

3. SERVICE AND ADDITIONAL PRODUCT-SPECIFIC TERMS

Product-Specific Terms. Carbon6 may distribute or otherwise embed certain Additional Products with the Services. For purposes of this Agreement, such Additional Products are subject to their own license terms (which may include, without limitation, any Product-Specific Terms) and the applicable flow through provisions therein. If Customer does not agree to abide by the applicable terms for such Additional Product, then Customer should not install or use such Additional Products. In addition, the Services may include Open-Source Components licensed under applicable open- source licenses (each, an “Open-Source License”). Customer understands and acknowledges that such Open-Source Components are not licensed to Customer pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of the Open-Source Licence(s).
White Labeling. Customers may be authorized to White Label the Product only if expressly stated by Carbon6 on the applicable Sales Order. “White Label'' shall mean that Customer is authorized to use the Product without displaying some or all of the Carbon6’s Marks and branding and/or including its own branding.
‍Customer Systems. Customer has and will retain sole control over the operation, management and maintenance of, and all access to and use of, the Customer Systems, and sole responsibility for all access to, and use of, the Services by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to Carbon6; (ii) results obtained from any use of the Services; and (iii) conclusions, decisions or actions based on such use. In addition, Customer has and will retain sole responsibility for: (a) all Product Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the security and use of credentials and of each of the Customer’s user account(s); and (d) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users’ credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

4. DATA

Privacy. By using the Service, Customer acknowledges and agrees that Carbon6’s collection, usage and disclosure of Personal Information included in the Customer Data shall be subject to Carbon6’s Privacy Policy in effect at the time available at https://www.carbon6.io/legal (as amended, restated, modified, supplemented, or replaced from time to time, the “Privacy Statement”). Carbon6 reserves the right to update the Privacy Statement from time to time in its sole discretion. Notwithstanding the foregoing, the Parties agree that they do not intend for Personal Information to be exchanged for the purposes described in this Agreement and, for certainty, Carbon6’s processing of Customer Data pursuant to this Agreement will not involve the use of Personal Information. Accordingly, in the event that Customer intends to provide Carbon6 with any Personal Information in connection with this Agreement, Customer shall provide Carbon6 with prior written notice thereof. Customer agrees to provide only that Personal Information as needed by Carbon6 to provide the Services. In connection with the foregoing, and prior to the provision or other exchange of any Personal Information,Customer shall use best efforts to cooperate with Carbon6 to ensure compliance with all legal requirements related to data privacy, trans-border data flow and/or data protection before such data is exchanged, which cooperation shall include, without limitation, executing such other agreements or addenda to this Agreement as required in order for Carbon6 or the Customer to comply with such legal requirements.

5. SUPPORT SERVICES AND PROFESSIONAL SERVICES

Support Services. Carbon6 may provide support and maintenance services (“Support Services”) to eligible Customers subject to and in accordance with the express terms of an applicable Sales Order.
‍Professional Services. The scope, Fees and terms of the professional services (if any) to be provided by Carbon6 to eligible Customers (the “Professional Services”) shall be set forth on the applicable Sales Order.

6. FEES & PAYMENT TERMS

Fees. Customer agrees and promises to pay to Carbon6, all fees, costs, or other charges applicable to Customer’s subscription to the Services (collectively, “Subscription Fees”), and any other applicable fees including, but not limited to, consumption or usage based fees in connection with Customer’s or any Authorized User’s usage of the Services (collectively, “Usage Fees”), as well as any other fees, costs, or charges including, without limitation, relating to applicable add-ons, modules, or recovery types (collectively, “Additional Fees”) as may be specified in an applicable Sales Order from time to time (the Subscription Fees, Usage Fees, and Additional Fees, collectively together with all other fees, amounts, costs, and charges payable hereunder or pursuant hereto, the “Fees”). Carbon6 may change the Fees by providing written notice to Customer at least 30 calendar days before the commencement of the change. Carbon6 will not be liable to the Customer or to any third party for any modification, price change, suspension or discontinuance of the Services (or any part thereof). Customer agrees that it shall pay all costs and expenses and other Fees of Carbon6 associated with the enforcement of this Agreement or any part thereof, including the reasonable legal fees and disbursements of counsel to Carbon6.
Payment. Unless otherwise specified in the applicable Sales Order, all payments shall be made in the currency specified in the Sales Order within thirty (30) days of the date of invoice. Except as expressly provided herein, all payments made hereunder are non-refundable and non cancellable. Payments of amounts made under or pursuant to this Agreement after their due date will incur interest at a rate equal to one percent (1%) per month (i.e., 12% per annum) or the highest rate permitted by applicable law, whichever is less. Further, if any amount owing by Customer under this Agreement is fifteen (15) or more days overdue, Carbon6 may, without limiting its other rights and remedies, suspend its performance under this Agreement or access by the Customer to the Services or any part thereof. In the event Customer disputes an invoiced amount in good faith, Customer shall notify Carbon6 of such dispute in writing, providing any relevant information regarding the circumstances of the dispute within 30 days of the date of receipt of invoice. The parties shall work together promptly and in good faith to resolve such dispute. Customer shall not be obligated to pay any amount so disputed in good faith until such dispute is resolved; provided, however, Customer shall remain obligated to pay all other invoiced amounts.
Audit. At Carbon6’s discretion and upon reasonable advance notice, Carbon6 reserves the right to conduct periodic reviews and audits of the Services and Customer's use hereunder to verify compliance with the terms of this Agreement.
Taxes. All Fees and other amounts payable by Customer under or pursuant to this Agreement are exclusive of taxes and similar assessment. 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, provincial, or territorial governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Carbon6’s income.
Authorized Payment Method. Customer acknowledges and agrees that it shall keep a valid payment method on file with Carbon6 that is acceptable to Carbon6 to pay for all Fees and that Carbon6 will charge applicable Fees to any valid payment method that Client authorizes (the “Authorized Payment Method”). Customer further acknowledges and agrees that Carbon6 will continue to charge the Authorized Payment Method for all applicable Fees until any and all outstanding Fees have been paid in full.
‍No Set-Off. Customer shall have no right of set-off or withholding, and no deduction of any amounts due from Customer to Carbon6 shall be made without Carbon6’s prior, express written approval.

7. PROPRIETARY RIGHTS; RESTRICTIONS

Ownership by Carbon6. Customer acknowledges and agrees that Carbon6 owns all right, title, and interest, including all intellectual property rights, in and to all materials provided or made available by Carbon6 pursuant to this Agreement, including, without limitation, the Services, Documentation, Products, Software and Solutions, Aggregated Data, and anything developed or delivered by or on behalf of Carbon6 under or pursuant to this Agreement, and any enhancements, updates, upgrades, derivatives, or other modifications of any kind thereof, as well as Carbon6’s Confidential Information and Carbon6’s names, trademarks, trade names and logos (“Carbon6 Marks''), and Customer acknowledges that it has no rights thereto except as expressly set forth herein. Nothing in this Agreement or in the parties’ dealings related to this Agreement will restrict Carbon6’s right to use, disclose, publish, or otherwise exploit Feedback (as defined below), without compensating or crediting Customer or the individual providing such Feedback, and Customer grants to Carbon6 and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any Feedback. “Feedback” means any suggestion, enhancement request, recommendation, correction, idea or other feedback provided by Customer, any Authorized User, or any other Person, relating to the operation of the Services. Carbon6 is not obligated to use any Feedback. Carbon6 grants no implied rights hereunder, and all rights not expressly granted herein are reserved. With respect to Additional Products, the applicable Affiliate or third-party licensors own all right, title, and interest, including all intellectual property rights, in and to the Additional Products.
‍Product Data. Carbon6 may collect, download, or otherwise receive and use, directly or indirectly, Customer Data and other data, system and other information about Customer’s or any Authorized User’s by or through its or their use of the Services (“Product Data”). Customer grants to Carbon6 and each Subcontractor a nonexclusive, worldwide, royalty-free, transferable, sublicensable, fully paid-up license to access, collect, use, process, store, disclose, transfer, transmit, copy, modify and display Product Data to produce or generate data, information, or other materials on volumes and usage of Product Data not identified as relating to a particular individual (such data, information and materials, the “Aggregated Data”). Customer hereby irrevocably grants all such rights and permissions in or relating to Product Data: (a) to Carbon6 and its Affiliates as are necessary or useful to perform or improve the Services including, inter alia, disclosing or using Product Data for Carbon6’s marketing purposes; and (b) to Carbon6 as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. In addition, Carbon6 may use, process, store, disclose, and transmit the Aggregated Data for any purpose and without restriction or obligation to Client of any kind. Aggregated Data is not Customer Data and is not Client’s Confidential Information.

8. CONFIDENTIAL INFORMATION

Confidential Information. Each party agrees that “Confidential Information” includes, without limitation, all information and data provided or made accessible by Carbon 6 (including for certainty, any of its Affiliates), or by the Customer, or its or their respective authorized representatives (each a “Disclosing Party”) to the other party (“Receiving Party”) that is either designated as confidential at the time of disclosure or would reasonably be considered, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. For the avoidance of doubt, Carbon6’s Confidential Information includes all non-public product features and information regarding pricing of its products and services including, without limitation the Services. The Receiving Party will use the Disclosing Party’s Confidential Information only in connection with this Agreement and will not disclose it to any third party, except to the Receiving Party’s own employees, directors, consultants, contractors, agents and Affiliates who have a need to know, and are subject to non-disclosure obligations with terms no less restrictive than those herein.
Exclusions. The confidentiality obligations in Section 8.1 will not apply to any information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) is rightfully known by the Receiving Party prior to disclosure by the Disclosing Party; (c) is rightfully obtained by the Receiving Party without restriction from a third party not known by the Receiving Party to be subject to restrictions on disclosure; or (d) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party. Receiving Party may disclose Confidential Information if and only to the extent it is required to be disclosed by law or regulatory or court order, so long as, if permitted under applicable law, Receiving Party provides advance notice to the Disclosing Party as promptly as possible and reasonably cooperates with the Disclosing Party’s efforts to limit or obtain a protective order or other relief regarding such disclosure at Disclosing Party’s expense.
Injunctive Relief. The parties hereby agree that the Confidential Information to be disclosed hereunder is of a unique and valuable character, that damages to the Disclosing Party that would result from the unauthorized dissemination of its Confidential Information would be impossible to calculate and that such party agrees that the Disclosing Party has no adequate remedy at law. The parties further agree that the Disclosing Party shall be entitled to obtain injunctive relief (without the posting of any bond or other security) preventing the further use and/or disclosure of any Confidential Information in violation of the terms hereof.
‍Return and Destruction. Upon termination of this Agreement, the Receiving Party will, upon written request of the Disclosing Party, promptly destroy or return the Disclosing Party’s Confidential Information and all copies thereof, provided that the Receiving Party shall not be obligated to erase Confidential Information contained in archived computer system backups in accordance with its security and/or disaster recovery procedures, provided further that the Receiving Party will continue to be subject to the confidentiality obligations of this Agreement with respect to any such retained Confidential Information for so long as such Confidential Information is retained.

9. WARRANTY; DISCLAIMER

Mutual Representations and Warranties. Each party represents and warrants that: (a) it has the legal power to enter into this Agreement and to perform its obligations hereunder; (b) it will comply with all applicable laws in its performance hereunder; (c) this Agreement constitutes the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); (d) the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action of such party; and (e) such party has duly executed and delivered this Agreement.
Customer Representations and Warranties. Customer represents and warrants that it has all legal rights to all Customer Data, including the right to provide Customer Data to Carbon6 pursuant to this Agreement.
Carbon6 Warranty. Carbon6 warrants during the Subscription Period and for Customer’s benefit alone that the Product will substantially conform in all material respects with the terms of the applicable Sales Order. Customer will provide prompt, written notice of any nonconformity in sufficient detail as Carbon6 may require, and, in such case, Carbon6 will provide written acknowledgement thereof and: (a) use commercially reasonable efforts to fix, provide a work around or otherwise repair or replace the Product, as applicable; or (b) if Carbon6 is unable to remedy the nonconformity, terminate this Agreement and the license to the Product and return the subscription fees paid to Carbon6 in advance for the Product for the period commencing from date the date of Carbon6’s written acknowledgement described above through the remainder of the applicable Subscription Period. This Section 9.3 states Carbon6’s entire obligation and liability and Customer’s sole remedy with respect to breach of warranty under this Agreement. THE FOREGOING WARRANTIES DO NOT APPLY, AND CARBON6 STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY ADDITIONAL PRODUCTS.
‍WARRANTY DISCLAIMER. THE SERVICES ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND (WHETHER EXPRESSED OR IMPLIED), ALL OF WHICH ARE HEREBY DISCLAIMED BY CARBON6 TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT FOR THE EXPRESS WARRANTIES INCLUDED IN THIS SECTION 9.3, NEITHER CARBON6 NOR ITS THIRD-PARTY LICENSORS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY SERVICES, / INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS, SUPPORT SERVICES OR PROFESSIONAL SERVICES. CARBON6 DISCLAIMS AND EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. CARBON6 DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR SECURE OR THAT IT WILL BE COMPATIBLE WITH ALL OF CUSTOMER’S (OR ITS END CUSTOMERS’, IF APPLICABLE) EQUIPMENT OR SOFTWARE CONFIGURATIONS, OR THAT THE SERVICES ARE DESIGNED TO MEET ALL OR ANY OF CUSTOMER’S REQUIREMENTS. NO CARBON6 DEALER, PARTNER, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY AND ANY OTHER SUCH TERMS OR REPRESENTATIONS SHALL NOT BE BINDING ON CARBON6. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING POTENTIAL INCOME, REVENUES, OR ANY OTHER AMOUNTS THAT MAY RESULT TO THE CUSTOMER FROM THIS AGREEMENT, INCLUDING, INTER ALIA, FROM ANY COST OR OTHER RECOVERY PRODUCTS OR SERVICES.

10. INDEMNIFICATION

Carbon6 Indemnity. Subject to Section 10.2, Carbon6 will indemnify and defend Customer against all third party losses awarded by a court of final and competent jurisdiction or pursuant to a settlement agreement signed by Carbon6 arising from actions, proceedings, suits, claims or demands that may be brought or instituted against Customer by any third party that Customer’s use of the Product in accordance with the terms of this Agreement infringes such third party’s intellectual property rights in a country that is a signatory of the Patent Cooperation Treaty (PCT) or which later accedes to the PCT, or in any country that is a signatory of the Berne Convention (“Convention”) or which later accedes to such Convention ("Infringement Claims"). Notwithstanding the foregoing, Carbon6 shall have no liability or obligation hereunder with respect to any Infringement Claim to the extent arising from or related to: (a) any use of the Product not in accordance with this Agreement and the Documentation; (b) modifications, adaptations, alterations, or enhancements of the Product not created by, or for, or consented to in writing by, Carbon6; (c) the combination of the Product with items not supplied by Carbon6 or approved for use with the Product by Carbon6 in the Documentation to the extent such claim would not have arisen but for the combination; (d) Customer’s continuing use of any version of the Product after an update, modification or replacement of the Product is made available to the Customer and Customer fails to implement within a reasonable period of time; or (e) any Additional Products, Open-Source Components, beta software, software that Carbon6 makes available for testing or demonstration purposes, temporary software modules, or software for which Carbon6 does not receive a license fee. If the Product or part thereof becomes, or in Carbon6’s opinion may become, subject to an Infringement Claim or Customer’s use thereof may be otherwise enjoined, Carbon6 may, at its option, either: (i) procure for Customer the right to continue using the Product; (ii) replace or modify the Product, so that it is non-infringing; or (iii) if neither of the foregoing alternatives is reasonably practical, terminate this Agreement and refund subscription fees prepaid for the unexpired Subscription Period, if any, upon the complete deletion or destruction (and certification of such deletion or destruction) of any Product in Customer’s possession. To the extent permitted by applicable law, this Section 10.1 states Carbon6's entire liability and Customer’s exclusive remedy for infringement.
Indemnification Procedure. The Customer shall give Carbon6 prompt written notice of any Claim, grant Carbon6 the right to elect to solely control of the defense and/or settlement of any Claim (provided that Carbon6 shall not enter into any settlement that admits liability on behalf of the Customer or imposes any obligations on the Customer without the prior written consent of the Customer, other than payment of amounts indemnified hereunder or, in the case of an Infringement Claim, cessation of use of the allegedly infringing item) and provide reasonable assistance as requested by the Carbon6.
‍Customer Indemnification. Customer shall save and hold Carbon6 and its Affiliates harmless from all liability, actions, proceedings, suits, claims or demands that may be brought or instituted against Carbon6 or any Affiliate resulting, or arising from: (a) Customer’s or its Affiliates' negligence or willful misconduct; (b) any Customer Data; (c) any breach of Customer’s representations, warranties or covenants under this Agreement, a Sales Order or the Terms of Service; (d) the Customer Systems including, without limitation, any action or inaction in relation to the Customer Systems that is not specifically authorized in writing by Carbon6, or any other handling, use, or operation of any Customer Systems in connection with the provision of Services provided by Carbon6 (except to the extent directly attributable to any defect or modification to the Customer Systems effected by Carbon6); (e) the inaccuracy of any information provided by or through Customer concerning the Customer Systems or the Services or their respective properties, attributes, or capabilities; and (f) Customer’s use of the Services in violation of applicable laws, this Agreement, any Sales Order or the Terms of Service.

11. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE MONETARY OBLIGATION AND LIABILITY TO THE OTHER PARTY OR ANY OTHER PARTY UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE PAYMENTS, WITH RESPECT TO CUSTOMER, PAID OR PAYABLE BY CUSTOMER, OR WITH RESPECT TO CARBON6, PAID BY CUSTOMER TO CARBON6 FOR THE PRODUCT, SUPPORT SERVICES OR PROFESSIONAL SERVICES THAT GAVE RISE TO THE ACTION OR CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS; CUSTOMER’S BREACH OF CARBON6’S INTELLECTUAL PROPERTY RIGHTS; CUSTOMER’S PAYMENT OBLIGATIONS; OR THE INDEMNIFICATION OBLIGATIONS IN SECTION 10. Notwithstanding anything to the contrary in this Agreement or otherwise, Carbon6 shall have no liability arising from: (i) any disclosure of Customer Data by the Customer or any Authorized Users or through the functions and settings of the Services under Customer’s control; (ii) claims alleging that Customer Data violates the intellectual property rights of a third party; (iii) damages or losses, if any, caused by any modification or adaptation made by Customer to a Product or other Service without Carbon6’s express prior written consent; or (iv) any action(s) taken by, through, or for the benefit of the Customer in connection with the provision of the Services including, without limitation, with respect to Customer Systems.
EXCEPT FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS OR CUSTOMER’S BREACH OF CARBON6’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTIES FOR (A) INDIRECT, SPECIAL, CONSEQUENTIAL, COLLATERAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, OR (B) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, IN EACH CASE EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. TERM; TERMINATION

Term. The term of this Agreement shall commence on the Effective Date and continue until no Sales Orders remain in effect hereunder, including any Renewal Terms as defined herein, unless otherwise terminated as stated below (the “Term”). The subscription term under a Sales Order (referred to therein as the “Subscription Period”) shall be as set forth in such Sales Order and if no such term is set forth, the Subscription Period shall continue for one (1) year from the effective date of such Sales Order. Unless otherwise described in a Sales Order, the Subscription Period granted under each Sales Order shall automatically renew for additional one (1) year terms following the end of each Subscription Period unless either party provides written notice of nonrenewal of such Subscription Period to the other party, not less than thirty (30) days prior the expiration thereof. If Sales Orders are not applicable or implemented, then the Subscription Period may be canceled at any time, and access to theServices will be available through the end of the pre-paid billing cycle.
Termination. Either party may terminate this Agreement: (a) at any time, if the other party fails to cure a material breach of any of its obligations hereunder within thirty (30) days after receipt of written notice, with the exception of Customer’s failure to pay applicable fees, which must be cured within five (5) days after receipt of written notice; (b) immediately upon written notice if the other Party commits a non-remediable, material breach or (c) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Effect of Termination or Expiry. Upon expiration or earlier termination of this Agreement: (i) each Authorized User’s access shall be canceled and the license granted hereunder will also terminate, and, without limiting Customer’s confidentiality or intellectual property obligations hereunder; (ii) Customer shall immediately cease (and ensure that all Authorized Users immediately cease) using and delete, destroy, or return all copies of the Product, Software and Solutions, and the Documentation and certify in writing to Carbon6 that the Product, Software and Solutions, and Documentation has been deleted or destroyed; and (iii) all Fees due and payable and any amounts due to Carbon6 are immediately due and are to be immediately paid by Customer to Carbon6. If this Agreement is terminated for Customer’s breach, then all outstanding Sales Orders shall be terminated immediately. Carbon6 will erase all Customer Data in its possession and control within thirty (30) days after the expiration or termination of the Term. No expiration or termination will affect Customer’s obligation to pay all Fees, including those that may have become due before such expiration or termination, or entitle Customer to any refund. Without limiting the generality of the foregoing, for certain Services including, inter alia, recovery Products and other related recovery services, products, and solutions, if data preparation (i.e. an open statement shortage report or “OSSR”) has been initiated for an open statement (i.e. the historic settlement for shortages e.g. PQV and PPV), Carbon6 will continue to provide the applicable Services through to a negotiated payout in respect of the open statement and any Fees, including as described in the applicable Sales Order, will be payable notwithstanding termination or expiry of the Agreement.
‍Survival. Notwithstanding any termination of this Agreement, Sections 7 (Proprietary Rights), 8 (Confidential Information), 10 (Indemnification), 11 (Limitation of Liability), 12.3 (Effect of Termination), 13 (General Provisions), shall survive and continue to be in effect in accordance with their terms.

13. GENERAL PROVISIONS

Entire Agreement. This Agreement (including all Sales Orders), the Terms of Service and the Privacy Statement constitute the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Without limiting the generality of the forgoing, the Parties agree that if Customer provides a purchase order to Carbon6, Customer's purchase order is provided for Customer's internal purposes only and shall not be binding upon Carbon6 unless otherwise specifically acknowledged by Carbon6 in writing, notwithstanding anything written to the contrary in the purchase order or otherwise. Any inconsistent or additional terms on any related Customer-issued purchase orders, vendor forms, invoices, policies, confirmation or similar form, even if signed by the parties hereafter, will have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Sales Order, the terms of this Agreement will control unless otherwise explicitly set forth in a Sales Order. This Agreement (including any Sales Order) may be executed in one or more counterparts, each of which will be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy will have the same force and effect as execution of an original, and a facsimile/ electronic signature will be deemed an original and valid signature. No modification, consent or waiver under this Agreement (including any Sales Order) will be effective unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language will be controlling in all respects.
Assignment. A party to this Agreement may not assign, delegate, or otherwise transfer any or all of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may from time to time assign this Agreement in whole only to: (a) its Affiliates; or (b) an acquirer of all or substantially all of its business or assets; provided that such Affiliate or acquirer assumes all of the obligations hereunder in writing and, in the case of an assignment by Customer, such assignment or acquisition shall not expand the scope of the Services as set forth on the applicable Sales Order nor shall the Services be permitted to be used for any business operations other than as permitted in writing by Carbon6.
Further Assurances. Customer shall, on Carbon6’s request, execute and deliver all such documents and instruments, without limitation, and take all such further actions, as may be necessary or desirable to give full effect to the Agreement.
Notices. All notices and demands hereunder shall be in writing and shall be delivered to the address of the Receiving Party referenced below (or at such different address as may be designated by such party by written notice to the other party). All notices or demands shall be served by personal service or sent by certified, registered or signed-for mail, return receipt requested, by reputable national or international private express courier, or by electronic transmission, with confirmation received, to the email address specified below, and shall be deemed complete upon receipt: To Carbon6: the address listed in the applicable Sales Order or by email to help@carbon6.io. To Customer: the address and contact information listed in the applicable Sales Order.
Relationship of the Parties. Customer and Carbon6 shall operate as independent contractors and may only operate as partners, joint venturers, agents or employees of the other with express written consent. Neither party shall have any right or authority or assume or create any obligations or make any representations or warranties on behalf of the other party, whether expressed or implied, or to bind the other party in any respect whatsoever. Customer acknowledges and agrees that Carbon6 may, from time to time, in its discretion, engage third parties to perform Services (each, a “Subcontractor”).
Use of Customer Name. Carbon6 may use Customer’s name, logo, and trademarks (the "Customer Marks") and refer to its relationship with Customer in its business development and marketing efforts. Customer hereby grants Carbon6 and its Affiliates a non-exclusive, royalty-free, non-transferable (subject to Section 13.2) license, without the right to grant sublicenses, to display and otherwise use the Customer Marks solely as contemplated by this Section.
Force Majeure. Except for payment obligations, neither party shall have any liability under the Agreement to the extent that the performance of its obligations is delayed, hindered or prevented by an event or circumstance outside the reasonable control of the party, including fire, storm, flood, earthquake, adverse weather conditions, pandemic, explosions, Acts of God, terrorism or the threat thereof, nuclear, chemical or biological contamination, compliance with any law, governmental controls, restrictions or prohibitions general strikes, lock-outs, industrial action or employment dispute not caused by or specific or limited to the affected party, protests, public disorder, general interruptions in communications or power supply, and denial of service attacks (such an event or circumstance, an “Event of Force Majeure”).
Export Regulation. Customer shall not itself, or permit any other Person to export, re-export, or release, directly or indirectly, the Services to, or make the Services accessible from, any jurisdiction or country to which the export, re-export, or release is prohibited by applicable law, rule, or regulation or without first completing all required undertakings (including obtaining any necessary export license or other governmental approval). Carbon6 makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
Records. In connection with the provision of certain Services, Carbon6 may open and maintain, in accordance with its usual practice, an account or accounts or other documentation or applicable records evidencing any actions taken by Carbon6 at the direction or other instruction of the Customer or any Authorized User (the “Carbon6 Records”). The Carbon6 Records will constitute prima facie evidence of all actions taken by Carbon6 at the direction or other instruction of the Customer or any Authorized User including, inter alia, any action(s) or inaction(s) taken (or not taken) under or in connection with access to any Customer Systems.
‍Carbon6 Entities; Governing Law. The Sales Order specifies the applicable Carbon6 entity that is a party to this Agreement in addition to Carbon6. This Agreement and all matters arising out of or in connection with it shall be construed and enforced in accordance with the laws of the State of Delaware. Carbon6 shall have the right to seek a preliminary, interim or preventative injunction in respect of any breach of its intellectual property rights in any jurisdiction and court. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.