Master Subscription Agreement

THIS AGREEMENT (the “Agreement“) is entered into between Zywave, Inc. (“Zywave“) and the customer listed in the signature block of their Schedule (“Customer“), as of the Effective Date of the Schedule.

1. AGREEMENT STRUCTURE AND DEFINITIONS.
   1. Agreement Structure and Order of Precedence This Agreement states the terms and conditions under which Zywave will provide Services to Customer and Customer will obtain Services provided by Zywave ordered pursuant to any applicable Schedule. The specific Services to be provided are identified on one or more Schedules signed by the parties. While this Agreement is intended to cover the provision of the Services generally, additional terms and conditions related to specific Services may be set out in individual Schedules, which terms and conditions shall govern the relationship of the parties only with respect to those specific Services covered by the particular Schedule. To the extent any terms and conditions of this Agreement conflict with the terms and conditions of a Schedule, the terms and conditions of this Agreement shall control unless the Schedule expressly states the intent to supersede a specific portion of the Agreement.
   2. Definitions.
      1. “Audit Form” means an informational worksheet to be completed by Customer upon Zywave’s request to ensure compliance with the Agreement and applicable Schedule.
      2. “Customer Content” means information and data that Customer or Users provide, including, without limitation, information and data that Customer or Users create, install, upload or transfer in or through the Services.
      3. “Effective Date” means, with respect to this Agreement, the date first indicated above and with respect to a Schedule, the date set forth in such Schedule.
      4. “End User Agreement” means the online click-through terms and conditions available for review at http://www.zywave.com/terms-conditions to which each and every User must assent prior to accessing or using any and all Zywave products. Zywave reserves the right to modify the End User Agreement from time to time in its sole discretion.
      5. “Hosted Application” means the particular software product, provided to Customer through Zywave’s hosted environment and infrastructure and access by Customer via an internet connection, identified in the Schedule, including end-user documentation and updates. These may also be referred to as product applications(s). Hosted Applications may also include third party application(s) of which Zywave has obtained a license (or a sublicense) to provide directly to Customer through the Hosted Application(s). Hosted Application may also include any upgrades that replace or supplement the original Hosted Application, which shall be provided in accordance with Zywave’s then-current policies and procedures.
      6. “Initial Term,” “Renewal Term” and “Term” have the meaning set forth in section 2.2.
      7. “Intellectual Property” means technology, inventions, know-how, show-how, designs, formulae, processes, techniques, methodologies, procedures, processes, tools, utilities, techniques, various concepts, ideas, methods, models, templates, content, photographs, audio and video clips, and other works of authorship, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, logic, coherence and methods of operation of systems, training methodology and materials, and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and related documentation.
      8. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights and any applications or right to apply for registration therefor, moral rights, trademarks, service marks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed, registered or recorded.
      9. “License” means a license to use Zywave Licensed Materials granted to User pursuant to a Schedule.
      10. “Licensee” means an individual that has been authorized by the Customer, and assigned a unique username-password combination, to access and use Zywave Licensed Materials in accordance with a Schedule.
      11. “Permitted Use” means the permitted access to, use of, or other rights or licenses in and to Zywave Materials and/or Zywave Licensed Materials stated in a Schedule, the Agreement, or the Hosted Application, or otherwise in writing by Zywave, including any copyright or use restrictions present on the Zywave Materials and/or Zywave Licensed Materials.
      12. “Professional Services” means training, implementation, data conversion, and other consulting services.
      13. “Reciprocal Data” means any data contributed by Customer to Zywave in or through the Hosted Application or otherwise that is intended to be incorporated into the Hosted Application and/or Zywave Materials and/or Zywave Licensed Materials, including specifically, information submitted to the Zywave DSP Database and/or other Zywave data products.
      14. “Schedule” means a specific agreement, product schedule, or statement of work, regardless of its actual name, for the provision of particular Services by Zywave to Customer, executed by the parties specifically referencing this Agreement pursuant to which Customer orders, and Zywave accepts to supply, the particular Service under the terms and conditions of this Agreement.
      15. “Services” means collectively (i) the Professional Services and/or (ii) access to Zywave’s Hosted Application(s) and/or (iii) access to Zywave Materials for the Permitted Use provided via Zywave’s Hosted Application; and/or (iv) access to and a License for Zywave Licensed Materials for the Permitted Use, all to be provided by Zywave to Customer pursuant to a Schedule.
      16. “User” means an individual [and/or a Licensee] that has been authorized by Customer, and assigned a unique username-password combination, to access and use the Services or the results or products of the Services.
      17. “Zywave Licensed Materials” means any and all data, information and/or other material downloaded or otherwise copied by Customer from a Service (including any third-party licensed content or data for which Zywave or its Affiliates has obtained a license or sublicense) as authorized by the applicable Schedule.
      18. “Zywave Materials” means literary or other works of authorship (such as content, templates, information, data, text, software, music, sound, photographs, graphics, video messages or other material) that Zywave may deliver to Customer as part of the Services pursuant to a Schedule and for the Permitted Use. Zywave Materials may also include third party licensed content or data of which Zywave has obtained a license (or a sublicense) to provide directly to Customer within or through the Hosted Application(s) solely for the Permitted Use.
2. SERVICES.
   1. Delivery of Services. Subject to the terms and conditions of this Agreement and timely payment of the applicable fees by Customer, Zywave will provide, during the Term, the Services identified in one or more Schedules signed by the parties.
   2. Term and Renewal of Services. The initial term of the Services (the “Initial Term“) shall be as set forth in the Schedule, unless earlier terminated as set forth in Section 3. It shall be automatically renewed for successive periods equal to the same period as the Initial Term (each a “Renewal Term“) commencing on the anniversary of the end of the Initial Term; unless either Party notifies the other in writing, on or before sixty (60) days prior to the end of the then existing term, of its intention not to renew the Services. The Initial Term and Renewal Term(s) are collectively referred to as the “Term”. In the event Customer orders additional licenses, the term for the additional order shall be co-terminus with the then existing Term.
   3. Customer’s Obligations. Customer represents that it will comply with the use and restrictions applicable to the Services as follows. Additional use and restrictions may apply, as set forth in the applicable Schedule and the End User Agreement.
      1. Use of the Services by Customer is limited to servicing Customer’s clients, prospects, and trading partners. Redistribution, reselling, or providing access to the Services, including any Zywave Materials, to another insurance broker, another insurance carrier, or third-party or use of the Services contrary to the Permitted Use or for purposes not expressly permitted in this Agreement is strictly prohibited. Except where contrary to the Permitted Use, Customer may share Zywave Materials through an authenticated link provided within the Hosted Application(s) on Customer’s social media and website. Except as specifically authorized in the applicable Schedule, Customer may not share Zywave Licensed Materials with third parties.
      2. Except where expressly allowed in the Permitted Use, Customer shall not publish, transmit, transfer or sell, reproduce, distribute, perform, display, or in any way exploit any of the Zywave Materials, in whole or in part, and shall not commit or permit any act or omission that would impair Zywave’s Intellectual Property Rights. Zywave Materials may not be reverse engineered or decompiled unless specifically authorized. All Intellectual Property Rights notices must be reproduced and included on copies of the Zywave Materials.
      3. Subject to the restrictions set forth in section 2.4 (Acceptable Use Policy), Customer may post on the Zywave Website (“Website“) any Customer Content owned by Customer (such as Customer’s original statements), Customer Content for which Customer has received express permission from the owner to post, and content in the public domain. Customer assumes all risk and responsibility for determining whether any Customer Content is in the public domain or is permitted to be posted by the owner of the Customer Content.
      4. Except where contrary to the Permitted Use, Customer shall be permitted to maintain Zywave Materials and Zywave Licensed Materials for historical and archival purposes if required for regulatory or legal compliance after the termination of the Agreement and Customer agrees that any such Zywave Materials and Zywave Licensed Materials shall not be permitted for any other use or continued distribution or commercialization. Where applicable, in the event Customer desires to purchase a license for the continued use of the derivative works as expressly allowed in the Permitted Use, Customer shall provide written notice to Zywave no less than sixty days prior to the expiration or termination of the applicable Schedule. The parties agree to negotiate, in good faith, the terms governing the continued use license and enter into a Schedule for such continued use.
   4. Acceptable Use Policy. Customer acknowledges and agrees that Zywave is under no obligation to police the content of communications, messaging, or data of Customer or its Users uploaded in or transmitted through the Services, and that Zywave shall not be responsible for the content of any such communications or transmissions. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees not to post on the Website any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any Intellectual Property Rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law (including, without limitation, the laws and regulations governing export control, unfair competition, antidiscrimination, or false advertising). Customer further agrees not to use the Website to solicit Users to join or to procure products or services competitive to the Services. Zywave reserves the right to delete, move or edit any Customer Content that it may determine, in its sole discretion, violates this Agreement or is otherwise inappropriate for posting. Customer shall use Zywave Licensed Materials only as authorized in an applicable Schedule.
   5. Access to Services. Customer acknowledges that it is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access the Services, including but not limited to computer and telephony equipment, cabling, software, Internet access and other materials at its facility(ies) necessary to access the Services.
   6. Passwords. All usernames and passwords provided to Customer by Zywave in connection with the provision of Services shall be kept confidential and secure and used only by authorized personnel. Customer shall be responsible for all misuse of usernames and passwords by it and its Users, and Customer shall promptly inform Zywave of any breach of password security or use of or possession of passwords by non-authorized persons. Customer is entirely responsible for any and all activities that occur under Customer’s account. Zywave shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.
   7. Availability of Internet-Provided Services. The provision of the Services by Zywave may include the provision of access to certain software and websites via the Internet. Zywave shall provide any such services using a co-location facility which: (a) uses a web server clustered environment with load balancing, twenty-four (24) hours a day performance monitoring, and prompt response to and correction of critical hardware failures; (b) provides both a logically and a physically secure and monitored environment and location with controlled access; (c) uses multiple power supply sources and maintains a power generator backup; (d) provides for regular backup and off-site storage of data and provides for restoration of data within reasonable time limits using backup data in the event of an emergency; (e) provides connectivity through redundant high-bandwidth backbones; and (f) has redundant firewall systems with frequently updated firewall rule sets and tools to monitor the network and firewalls for attacks and unauthorized intrusions.
   8. Support. During the Term of the applicable Schedule, Zywave will provide Customer with technical support relating to the Services during Zywave’s regularly staffed support hours. These hours and the Professional Services cancellation policy, incorporated in this Agreement, are subject to change at Zywave’s discretion. The current hours can be found at https://www.zywave.com/training-support. The current Professional Services cancellation policy can be found at https://www.zywave.com/training-cancellation-policy.
   9. Backup and Recovery of Data; Security Zywave shall maintain commercially reasonable safeguards against the destruction, loss, and alteration of data contained within Zywave Hosted Application products, including the creation of daily backups. In the event of loss of data caused by Zywave or its hosting company, Zywave shall use commercially reasonable efforts to recover or reconstruct data contained within a Zywave Hosted Application product at the time of loss. Zywave shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer data caused by any third party unless access to the Customer data by such third party is knowingly or negligently granted by Zywave.
   10. Information Security. Zywave has and shall maintain throughout the Term: (a) a written security policy that implements reasonable administrative, technical, and physical safeguards designed to protect and prevent unauthorized or prohibited use of Personal Data (as that term is defined by the DPA); and (b) an incident response plan, which is designed to promptly respond to, and recover from, any act or attempt to gain unauthorized access to, disrupt, or misuse Zywave’s Services or any such Personal Data stored in Zywave products that materially affects the same. Zywave shall notify Customer as soon as reasonably practical after becoming aware of an actual occurrence of any circumstance pursuant to which applicable laws and regulations require notification of such event to be given to affected parties and/or regulatory bodies, including any act or attempt to gain unauthorized access to, disrupt, or misuse Zywave’s Services or any nonpublic information stored in Zywave’s products. Zywave agrees to use commercially reasonable efforts, such as the use of firewalls, access restrictions, and data flow monitoring, to protect the confidentiality of data contained within Zywave Hosted Application products. Zywave’s safeguards for the protection of Personal Data shall: (i) allow the ability for multi-factor authentication or single sign-on; (ii) implement encryption controls for any non-public Customer Content transmitted or received over any non-private data communications network; and (iii) implement encryption for any non-public Customer Content at rest while stored in the Services. Notwithstanding the foregoing, to the extent any Personal Data also contains PHI (as defined below), any conflict between the terms of this Section 2.10.1 and any terms and conditions set forth in a separate business associate agreement entered pursuant to 45 CFR 164.504(e)(2)(ii) of the Standards for Privacy of Individually Identifiable Health Information and 45 C.F.R. 164.314(a)(2)(i) of the Security Standards for the Protection of Electronic Protected Health Information, the terms of such separate business associate agreement shall control.
   11. Professional Services Any Professional Services are described in the applicable Schedule.
       1. Change Orders. Either party may propose a change order to add to or change the Professional Services ordered in the Schedule. Zywave shall be responsible for determining the effect, if any, of the proposed additions or changes on the schedule and on Zywave’s compensation, due to the change. Both parties must agree to the change order in writing, and each change order shall specify the change(s) to the Services, and the effect, if any, on the Schedule and on Zywave’s compensation, due to the change. Once executed by both parties, a change order shall become a part of the applicable Schedule and thereby expressly incorporated by reference herein and therein. After any such effective change order, references to such Schedule will be deemed to refer to the applicable Schedule, as amended to give effect to such change order. In the event of any delay in Customer’s performance of any of the obligations set forth herein or any other delays caused by Customer, the milestones, fees and date(s) set forth in the applicable Schedule shall be adjusted as reasonably necessary to account for such delays, in accordance with the change order procedure set forth therein.
       2. Estimated Time/Cost Overruns. Additional Professional Services outside of those listed in Exhibit A to a Schedule are compensated on a time and materials basis. Any estimates of the fees set forth in the applicable Schedule for such Professional Services are provided for budgeting purposes only. Zywave will bill Customer for reasonable and actual travel, living expenses (if applicable) and related incidental expenses incurred by Zywave’s personnel in rendering the Services. Zywave shall promptly report to Customer at the earliest time it discovers that the time or cost of performance of such Services will exceed the estimated time and/or cost authorized in the applicable Schedule, and in any event before proceeding with the portion of the Services that will cause the estimated time and/or cost to exceed the then-current estimate(s). Zywave shall explain in reasonable detail the reason(s) for the anticipated overrun and shall estimate the revision in the estimated time and/or estimated costs necessary to complete the work. Zywave shall not perform such additional work or any work performed in excess of any estimated “cap” identified in the applicable Schedule, unless the parties have executed a change order pursuant to this section 2.11.
   12. Mailing List. Customer agrees and acknowledges that all Users will be added to the Zywave mailing list for operational and transactional emails from and for the Hosted Application(s). Each User shall have the right to opt out of receiving mailings from Zywave.
3. TERM AND TERMINATION.
   1. Term. This Agreement will commence on the Effective Date and continue until the last Schedule expires or is terminated in accordance with Sections 2.2, 3.2 or 3.3 of this Agreement.
   2. Termination by Zywave. Zywave may terminate this Agreement and any or all Schedules by providing Customer thirty (30) days prior written notice of such intent as follows: (i) if Customer has failed to pay any invoice required under this Agreement or a Schedule by its due date and has failed to cure such payment breach within fifteen (15) days of Zywave’s notice to Customer; (ii) if Customer is in material breach of this Agreement and the breach is not substantially cured within fifteen (15) days of Zywave’s notice to Customer; (iii) if performance under this Agreement by Customer is in violation of any law or regulation and such violation causes a substantial risk of material loss to Zywave or any party related to Zywave; or (iii) if the applicable laws and regulations related to the provision of the Services are revised or supplemented after the Effective Date hereof in a manner that Zywave determines will substantially increase its costs. In addition to the foregoing, Zywave may immediately terminate this Agreement if Customer has repeatedly committed the same material beach.
   3. Termination by Customer. Customer may terminate this Agreement and any or all Schedules by providing Zywave thirty (30) days prior written notice of such intent as follows: (i) if Zywave is in material breach of this Agreement and the breach is not substantially cured within fifteen (15) days of Customer’s notice to Zywave; or (ii) if performance under this Agreement by Zywave is in violation of any law or regulation and such violation causes a substantial risk of material loss to Customer.
   4. Partial Termination. Where the non-breaching party has a right to terminate this Agreement, the non-breaching party may, at its discretion, either terminate this Agreement and all Schedules or only the applicable Schedule. The termination of a Schedule shall not affect either party’s rights and obligations under this Agreement and other Schedules which have not expired or have not been terminated.
   5. Rights and Obligations Upon Termination. In the event this Agreement and all Schedules or a Schedule is terminated or otherwise expires for any reason:
      1. Customer’s and Users’ right to access and use the Services shall immediately terminate;
      2. Zywave shall cease and shall cause any agent or subcontractor to cease all Professional Services and minimize any additional costs or reimbursable expenses unless otherwise directed in writing by Customer. Except as may be expressly set forth in the applicable Schedule, after such termination, Customer shall pay Zywave for Services performed up to and including the date of termination in accordance with the provisions of the applicable Schedule, on a time and materials basis together with any expenses reasonably incurred in connection therewith.
      3. Within ninety (90) days of termination or expiration, Zywave shall return to Customer or destroy all Customer Confidential Information in its possession and shall cease all use thereof, and Customer shall return to Zywave or destroy all Zywave Confidential Information in its possession and shall cease all use thereof;
      4. Within thirty (30) days after such termination, Customer shall provide Zywave with a final Audit Form and Zywave shall furnish Customer an invoice for any remaining fees owed under this Agreement and any Schedules, and Zywave’s reasonable cost of collection, including but not limited to reasonable attorneys’ fees, if any (the “Final Accounting“); and
      5. Within thirty (30) days after receipt of the Final Accounting, Customer shall pay Zywave all remaining payments due and payable to Zywave under this Agreement and under any Schedules. Failure by Customer to pay the Final Accounting timely shall entitle Zywave to any and all Payment Default remedies.
4. FEES AND PAYMENT TERMS.
   1. Fees. Customer will pay all fees due according to the Schedules.
   2. Payment Terms. Zywave will invoice Customer for Services in accordance with the timing and terms provided in the Schedules. All fees shall be paid within thirty (30) days of the invoice date, unless otherwise provided on a Schedule. If Customer is delinquent in any payment under any Schedule, Zywave may, at its option and in addition to any other remedies available to Zywave, (a) suspend Customer’s access to any and all Services; and/or (b) modify the payment terms, to require full payment before the further provision of Services to Customer under any Schedule. In the event Customer does not pay fees when due, Customer shall also pay to Zywave interest on the delinquent account at the rate of 1.5% per month or the maximum amount permitted under applicable law, whichever is lower. Zywave may resume Customer’s access to the Services upon the payment by Customer of all fees due and the satisfaction of all other obligations under this Agreement.
   3. Payment Default. Notwithstanding any of Zywave’s rights enumerated in Sections 3.2 and 3.5 of this Agreement, if Customer fails to timely pay one (1) or more consecutive invoices or does not cure a breach of sections 2.3, 2.4 or 2.6, Zywave may in its sole discretion declare a (“Payment Default“) by providing Customer with written notice of the Payment Default. Customer will have no right to cure a Payment Default unless prior written authorization from Zywave is obtained. In the event of a Payment Default, Zywave shall be entitled to Payment Default Remedies.
      1. Payment Default Remedies. In the event of a Payment Default, Customer agrees that Zywave shall be entitled to collect all past and current amounts due and owing, and to collect all the remaining fees owed under any affected Schedule (“Termination Fee“) for all remaining installments for the Term. Zywave may commence an action to recover: the past and current amounts due; the Termination Fee; interest; expenses; reasonable attorneys’ fees, whether such attorneys’ fees are incurred in collection or otherwise; and, in addition, any and all other such damages as may be the result of the Payment Default.
   4. Taxes. All fees charged by Zywave for Services are exclusive of all taxes and similar fees, now in force or enacted in the future, imposed on the delivery of the Services, for which Customer will be responsible in their entirety and will pay in full, except for taxes based on Zywave’s net income.
   5. Fee Increases: Zywave may, no more than one (1) time in each calendar year of the Term, and in its sole discretion, modify the License Fee, provided that any such modifications may not exceed the greater of the price increase cap percent identified in the Schedule or the Consumer Price Index. In the event the Schedule includes the step up pricing table for year over year increases, such increases shall apply for the Initial Term and fee increases during all Renewal Terms shall be pursuant to this Agreement.
5. CONFIDENTIALITY AND DATA PROTECTION.
   1. All Personal Data and proprietary information of Customer and its clients (including without limitation, the identity of Customer’s clients) disclosed to Zywave in the course of Zywave’s performance of Services under this Agreement (collectively, “Customer Confidential Information“) shall be treated confidentially by Zywave.
   2. All proprietary and other nonpublic information of Zywave, including, but not limited to, the source code and documentation pertaining to the Services, disclosed to Customer in the course of Zywave’s performance of Services under this Agreement as well as the terms and pricing (but not the existence) of this Agreement and Zywave Licensed Materials (collectively, “Zywave Confidential Information“) are valuable trade secrets of Zywave and shall remain confidential.
   3. Neither party shall, during or after the Term, use or disclose any Confidential Information of the other party, except in furtherance of this Agreement or under a court order or subpoena, in which case notice of the order or subpoena shall, if permitted, be sent to the disclosing party, without the prior written consent of the disclosing party. The recipient of Confidential Information shall immediately deliver to the disclosing party (or destroy and certify the destruction of), at any time upon the disclosing party’s request, any data, records or documents in its possession or control which contain the disclosing party’s Confidential Information.
   4. The parties recognize that the provision of Services by Zywave to Customer may include the uploading of certain Protected Health Information (“PHI“), as defined at 45 C.F.R.160.103, to computers or networks operated by Zywave. Where PHI is stored on Zywave systems or where Customer uploads PHI to Zywave’s systems, Zywave and Customer agree to comply with the provisions required of business associates as set forth in 45 CFR 164.504(e)(2)(ii) of the Standards for Privacy of Individually Identifiable Health Information and 45 C.F.R. 164.314(a)(2)(i) of the Security Standards for the Protection of Electronic Protected Health Information. If the provision of Services by Zywave to Customer does not require uploading certain PHI, Customer agrees that Customer shall not provide PHI to Zywave.
   5. The parties recognize that the provision of Services by Zywave to Customer may include the uploading of certain Personal Data, to computers or networks operated by Zywave. Where Personal Data is received, accessed, collected, organized, retained, used, disclosed, stored, altered, manipulated, adapted, analyzed, categorized or otherwise processed (“Process” or “Processing“) on Zywave systems or where Customer uploads Personal Data to Zywave systems, Zywave and Customer agree to comply with the provisions of Zywave’s Data Processing Addendum located at https://www.zywave.com/dpa (the “DPA“) as may be updated from time to time.
   6. Notwithstanding anything contrary contained in this Agreement, Customer hereby grants to Zywave a perpetual, non-cancelable, worldwide, non-exclusive right to utilize any aggregated and de-identified data that arises from the use of the Hosted Application(s) by Customer, whether disclosed on or prior to the Effective Date, for any legitimate business purposes, including the right to sublicense such data to third parties, subject to all legal restrictions regarding the use and disclosure of such information.
   7. The parties recognize that the provision of the Service by Zywave to Customer may include re-licensing intellectual property from a third party through the Zywave Hosted Application(s) and/or Zywave Materials and/or Zywave Licensed Materials. In the event Zywave is required to disclose the identity of Customer to any third party for compliance with re-licensing, Zywave shall ensure that all third parties shall adhere to confidentiality provisions as strict as this Agreement.
6. WARRANTIES AND DISCLAIMERS.
   1. Zywave Warranties. Zywave warrants to Customer as follows: (a) it will perform the Services using reasonable care and skill; and (b) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
      1. Remedy. In the event of any breach of the warranties set forth in this Agreement, Zywave’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Zywave to correct or replace, at no additional charge to Customer, any portion of the Services found to be defective; provided, however, that if within a commercially reasonable period Zywave neither corrects such defects nor replaces the defective Services, then Customer’s sole and exclusive remedy shall be to receive direct damages not to exceed the prepaid fees paid to Zywave for use of the defective Services.
   2. Limitations on Zywave’s Warranties. EXCEPT FOR THE WARRANTIES EXPRESSED IN SECTION 6.1, THE SERVICES AND ANY AND ALL PRODUCTS, INCLUDING THE ZYWAVE MATERIALS, ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS AND ZYWAVE AND ITS THIRD PARTY AGENTS MAKE, AND CUSTOMER RECEIVES, NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ZYWAVE, ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (b) ANY AND ALL IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT; (c) ANY WARRANTY THAT THE ZYWAVE MATERIALS, ZYWAVE LICENSED MATERIALS OR THE RESULTS OF THE USE OF ZYWAVE MATERIALS OR ZYWAVE LICENSED MATERIALS WILL BE ACCURATE, COMPLETE, RELIABLE AND ERROR-FREE, BE COMPATIBLE OR WORK WITH ANY SOFTWARE OR OTHER DATA, OR ACHIEVE THE CUSTOMER’S PURPOSES OR ANY INTENDED RESULT; AND (d) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Customer acknowledges that Zywave does not control the transfer of data over telecommunications facilities, including the Internet. Zywave does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the Services. Customer further acknowledges and agrees that Zywave is not engaged in providing legal, accounting, or other professional services. Assistance of legal counsel or other appropriate experts should be sought when applying the law, rules, or regulations to a particular set of facts or circumstances. Customer understands and agrees that it will conduct its own independent assessment and evaluation of the appropriateness of the Zywave Materials and/or Zywave Licensed Materials for Customer’s purposes before using or distributing them to Customer’s clients or prospects.
   3. Customer Warranties. Customer warrants as follows:
      1. It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
      2. It has obtained or will obtain the required consents and approvals, including without limitation all Intellectual Property Rights clearances, prior to uploading or otherwise providing any Customer Content and Reciprocal Data;
      3. Customer agrees to comply and agrees that its Users will comply with all terms and provisions found in the End User Agreement provided to each such User prior to the User’s accessing or use of the Services, and
      4. Customer’s use of the Services and all Customer Content and Zywave Materials and Zywave Licensed Materials will comply with the Acceptable Use Policy set forth in section 2.4 and the Permitted Use of Zywave Materials and/or Zywave Licensed Materials.
      5. Where applicable, Customer agrees and understands that use of the Send on Behalf functionality in violation of the End User Agreement, the Agreement or this Schedule may result in negative consequences, including but not limited to, the suspension or termination of the IP address associated with its account and Zywave. Customer acknowledges and understands that it is solely responsible for any part of the implementation process not in the control of Zywave, including by not limited to the modification of DNS settings.
7. INDEMNIFICATION.
   1. Indemnification by Customer. Customer shall, during and after the Term of this Agreement, defend, indemnify and hold Zywave, its affiliates and suppliers, harmless against any third party action or suit to the extent such action or suit is based on or results from: (a) Customer Content, Reciprocal Data or Customer’s use of the Services violating Customer’s obligation in Sections 2.3 or 2.4 hereof or in an applicable Schedule; (b) a third party claim that Customer Content or Reciprocal Data infringes a patent, trademark or copyright of others; or (c) claims by Users to the extent the claim is related, directly or indirectly, to any portion of the Services modified by Customer. Customer shall pay those costs and damages awarded against Zywave in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Customer obligations under this section are conditioned on: (i) Customer receives prompt notice in writing of such claim; (ii) Customer shall have sole control over the defense and settlement thereof; and (iii) reasonable cooperation from Zywave, as applicable, (at Customer’s expense) in response to Customer’s request for assistance.
   2. Indemnification by Zywave. Zywave shall defend, indemnify, and hold Customer harmless against any third party action brought against Customer to the extent such action is based upon a claim that the Hosted Application or Zywave Materials or Zywave Licensed Materials (except for any content or materials posted or provided by third parties such as other users of Zywave’s Services) infringes a patent or copyright of a third party, and Zywave shall pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Zywave obligations under this section are conditioned on: (a) Zywave receives prompt notice in writing of such claim; (b) Zywave shall have sole control over the defense and settlement thereof; (c) reasonable cooperation from Customer, as applicable, (at Zywave’s expense) in response to Zywave’s request for assistance, and (d) Customer not being in breach of this Agreement. If the Hosted Application or Zywave Materials or Zywave Licensed Materials become, or in Zywave’s opinion are likely to become, the subject of an infringement or misappropriation claim, Zywave may, at its option and expense, either: (i) procure for Customer the right to continue using the Hosted Application or Zywave Materials or Zywave Licensed Material; (ii) replace or modify the same so that they become non-infringing; or (iii) terminate Customer’s right to use all or part of the Services and give Customer a refund or credit (at Zywave’s discretion) for the fees actually paid by Customer to Zywave for the prior twelve month period for the relevant Services as of the date of termination less a reasonable allowance for the period of time Customer actually used the relevant Services. Notwithstanding the foregoing, Zywave will have no obligation of defense or indemnification or otherwise with respect to any claim or demand based upon (1) any use of the Hosted Application or Zywave Materials or Zywave Licensed Materials not in accordance with this Agreement or a Schedule or for purposes not intended by Zywave; (2) any use of the Hosted Application or Zywave Licensed Materials in combination with other products, equipment, software, or data not intended, recommended, supplied, or approved by Zywave in writing; (3) any modification of the Hosted Application or Zywave Materials or Zywave Licensed Materials made by or content provided by any person other than Zywave; (4) where Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements or other remedies that would have avoided the alleged infringement; or (5) anything Customer or Users provide which is incorporated into the Zywave Materials or Zywave Licensed Materials. This section states Zywave’s entire liability and obligation and Customer’s sole and exclusive remedy for infringement and misappropriation claims, demands, and actions.
8. EXCLUSION AND LIMITS OF LIABILITY.
   1. IN NO EVENT WILL ZYWAVE BE LIABLE TO CUSTOMER, USERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE HOSTED APPLICATION, THE ZYWAVE MATERIALS AND ANY OTHER SERVICES OR MATERIALS PROVIDED BY ZYWAVE, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF ZYWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN ZYWAVE’S OBLIGATIONS TO INDEMNIFY CUSTOMER AS SET FORTH IN SECTION 7 HEREIN, ZYWAVE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES AND COSTS SHALL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO ZYWAVE FOR THE PRIOR TWELVE-MONTH PERIOD FOR THE SOFTWARE OR SERVICE UPON WHICH SUCH DAMAGES AND/OR COSTS ARE BASED. NOTHING IN THIS CLAUSE 8.1 SHALL LIMIT ZYWAVE’S LIABILITY TO THE EXTENT TO WHICH IT CANNOT BE LAWFULLY EXCLUDED.
9. INTELLECTUAL PROPERTY LICENSE AND OWNERSHIP.
   1. Trademarks. To the extent required by the parties for the performance of the Services under the Schedules, each party hereby grants to the other a nonexclusive license to use its trademarks, trade names, and other source-identifying indicia (“Marks“) and Customer Content solely in connection with the provision of the Services and in a form approved or provided the owner. Zywave style guidelines are available within the Hosted Application(s) or are available upon request from Zywave support. The parties shall not be entitled to distort or otherwise manipulate the Marks of the other and all use of the same by a party shall inure to the benefit of owner of the Marks.
   2. Hosted Application; Zywave Materials; Zywave Licensed Materials. Zywave retains all rights, title and interest in the Hosted Application and Zywave Materials and Zywave Licensed Materials. Zywave grants Customer a nonexclusive, nontransferable, revocable license to access and use the Hosted Application solely in connection with the Services as provided under this Agreement. Zywave grants Customer a non-exclusive, non-transferable, revocable license to access and use the Zywave Materials and Zywave Licensed Materials solely for and as defined in the Permitted Use. Customer agrees not to download or otherwise copy, reverse assemble, reverse compile, decompile, or otherwise translate the software portions of the Hosted Application. Customer further agrees not to remove or alter any copyright or other proprietary notice on or in the Hosted Application without Zywave written consent. Except where contrary to the Permitted Use, Customer has the right to modify and create derivative works based upon the Zywave Materials, excluding third party licensed materials. Customer agrees that all use of Zywave Materials pursuant to this license, including use of any modifications or derivative works, will terminate upon termination of the applicable Schedule. Customer acknowledges that the Zywave Licensed Materials include original compilations of data, databases, and Intellectual Property protected by United States copyright laws and trade secret laws that Zywave have dedicated substantial resources to collect, manage, and compile, and any unauthorized disclosure of such Zywave Licensed Materials contrary to the Permitted Use would cause irreparable harm to Zywave.
   3. Retention of Rights by Zywave. Except as expressly provided in this Agreement or the Permitted Use, Customer acknowledges that as between Customer on the one hand, and Zywave on the other, any and all Intellectual Property Rights embodied in the Zywave Materials, and Zywave Licensed Materials developed by Zywave in the performance of the Services, are works of original authorship and confidential and trade secret information of Zywave, all rights in which shall be vested solely in Zywave. Such works shall be owned exclusively by Zywave or its licensors, as the case may be. Customer shall not commit or permit any act or omission that would impair Zywave’s Intellectual Property Rights. Customer further acknowledges and agrees that, except as expressly allowed in the Permitted Use or this Agreement, the Zywave Materials and/or Zywave Licensed Materials: (a) may not be modified; (b) may be used solely for Customer’s own use; and (c) may not be used as part of a commercial time-sharing or service bureau or in any resale capacity. Customer further acknowledges and agrees that all Zywave Materials are proprietary to Zywave or its licensors, and Zywave or such licensors retain exclusive ownership of the same throughout the world, including all Intellectual Property Rights embodied therein.
   4. Reciprocal Data. In the event Customer contributes Reciprocal Data as set forth on a Schedule, Customer hereby grants to Zywave, and Zywave hereby accepts, a nonexclusive, royalty-free, irrevocable, perpetual, world-wide license to use such Reciprocal Data in the development of Zywave’s generic aggregated data and analytics. Zywave shall be free to use such Reciprocal Data for internal development use as it desires; however, for external use, Zywave agrees to only use Reciprocal Data provided by Customer in a manner that does not disclose any Customer specific information (i.e., aggregating Customer’s Reciprocal Data with data from several other companies in the same industry, size, or region Zywave shall use commercially reasonable efforts to secure and maintain any Reciprocal Data input by Customer.
10. GENERAL PROVISIONS.
    1. Independent Contractor. At no time will Customer represent that it is acting as an agent of Zywave, nor will Zywave represent that it is acting as an agent of Customer. Customer on the one hand, and Zywave on the other, will act at all times as independent contractors. Nothing in this Agreement will be deemed to constitute a partnership, joint venture, employment, affiliated business arrangement, or agency relationship between the parties.
    2. Notices. All notices, demands or other communications required or permitted under this Agreement will be made in writing and be deemed to have been duly given if delivered by hand or electronic mail or three (3) business days following being mailed by first class mail, postage paid or one (1) business day following being sent by a nationally recognized overnight courier service. If addressed to Zywave, notices shall be sent to Zywave, Inc.; ATTN: Zywave Legal Department, 10100 W. Innovation Drive, Suite 300, Milwaukee, WI 53226. If addressed to Customer, notices shall be sent to the name and address indicated in the signature blocks on the Schedule. The parties may designate in writing other recipients for providing notice.
    3. Assignment. This Agreement may be assigned by either party with prior written notice to the other. In no event shall this Agreement be assigned to any competitor or potential competitor of the other party. Any such assignment shall be null and void. Zywave may assign its rights and obligations under this Agreement, as a whole, as part of a merger or sale of substantially all the assets or stock of Zywave. Any permitted or approved assignees shall be bound by all the terms and conditions of this Agreement as if they were a party hereto. In the event that Customer under goes a merger or acquisitions, Customer shall provide Zywave with thirty (30) days prior written notice of the merger or acquisition.
    4. Counterparts. This Agreement and the Schedules may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
    5. Severability. The invalidity or unenforceability of any provision in this Agreement will not affect the validity or enforceability of any other provision. However, it is intended that any invalid or unenforceable provision of this Agreement be construed by a court of competent jurisdiction by limiting or reducing it so as to be valid or enforceable to the extent compatible with applicable law.
    6. Governing Law and Venue. The Agreement shall be construed, interpreted, applied, and governed in all respects by the laws of the state or province identified in the below chart based on Customer’s location, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the applicable state or province identified in the below chart. Customer agrees to irrevocably and unconditionally invoke and/or submit to the exclusive jurisdiction of the courts sitting in the location identified in the below chart based on Customer’s location for any dispute relating to the Agreement. Customer further irrevocably and unconditionally agrees to waive any objections to venue of any such action or proceeding brought in such court, or the fact that such court is an inconvenient forum. The parties agree that this contract is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA“), or any references to the United National Convention on Contracts for the International Sale of Goods.
       

       Customer Location Listed on the Applicable Schedule	Governing Law	Exclusive Jurisdiction
       United States – Wisconsin	Wisconsin	Milwaukee, Wisconsin
       United States – all other states	Delaware	Milwaukee, Wisconsin
       Canada	Alberta	Calgary, Alberta
       Outside the United States and Canada	England and Wales	London, England

    7. Entire Agreement; Amendments. This Agreement, including any applicable Schedules, constitutes the entire agreement between the parties pertaining to the subject matter of the Services and supersedes all negotiations, preliminary letters of intent or agreements, and all prior or contemporaneous discussions and understandings of the parties. No amendment, change, modification or waiver of any of the terms of this Agreement or a Schedule are effective unless made in writing and executed by all parties to this Agreement. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the ordering of the Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Zywave to object to such terms, provisions or conditions. Orders are non-cancelable, non-refundable and non-returnable.
    8. Rights and Remedies; Waiver. The parties acknowledge that any breach or evasion by either party of any provision of this Agreement may result in injury to the other party, and may cause that other party to suffer damages that cannot be quantified monetarily. Accordingly, upon such a breach that has not been cured within fifteen (15) days after the injured party notifies the other party of such breach, or upon any breach of Sections 5 (Confidentiality and Data Protection) above, the injured party shall be entitled to seek a preliminary and permanent injunction, as well as any other legal or equitable remedies to which such party may be entitled. All such rights and remedies shall be cumulative, and the exercise of any one of them shall not be deemed to be a waiver of any other. The failure of either party to enforce any of the provisions here of will not be construed to be a waiver of the right to enforce such provision at a later time or to enforce any of the other provisions hereof.
    9. Non-Solicitation. Customer and Zywave agree that neither party shall solicit for employment any employee of the other as an employee, contractor or in any other capacity within twelve (12) months from the last date such person provided Services here under without the other party’s written consent. This provision shall not apply to employees, consultants or subcontractors who reply solely to a published solicitation for employment.
    10. No Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party. Notwithstanding the above, the parties acknowledge that the Services may include software and materials licensed by Zywave from third parties (“Zywave Licensors“). Zywave Licensors may be direct and intended third party beneficiaries of this Agreement and may be entitled to enforce it directly against Customer to the extent: (a) this Agreement relates to the licensing of Zywave Licensors’ products; and (b) Zywave fails to enforce the terms of this Agreement on their behalf.
    11. Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other party to the extent fulfillment or performance of any terms of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of terrorists or enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes or availability failure; fires; floods; acts of God; federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes herein before enumerated or not. This clause shall not apply to the payment of any sums due under this Agreement by any party to another.
    12. Compliance and Self Certification. Zywave may monitor use of the Services for compliance with this Agreement and applicable law. In the event Zywave reasonably suspects any use of the Services is in material non-compliance with the terms of this Agreement or violation applicable law by Customer, Zywave may, through an independent third party accredited auditor, on ten (10) days’ written notice, during the Term and within one (1) year after the expiration and earlier termination of this Agreement, reasonably audit the applicable books, records, documents, and other items of Customer as necessary to verify its material compliance with the terms and conditions of this Agreement and compliance with applicable law. Customer shall permit entry of the third-party auditor to its applicable business locations to perform inspections of books, records, documents, and other items relating to Customer’s use of the Services for the purposes of conducting audits under this Section 10.12. In its agreement with the third-party auditor, the Zywave and Customer shall impose confidentiality obligations on such third-party auditor that are no less restrictive to those in this Agreement, and such third-party auditor shall be required to execute a reasonable confidentiality agreement and/or business associate agreement, to the extent such business associate agreement is required by applicable law. In the event of such audit, the audit shall be performed during regular business hours and shall not unreasonably interfere with Customer’s ordinary course of business. If such audit reveals any noncompliance by Customer, Customer shall reimburse Zywave for the costs and expenses of such verification process (including, but not limited to the fees of an independent auditor, if any) incurred by Zywave and pay Zywave for the period of time of any use of the Services beyond the scope, license terms authorized or granted in the applicable Schedule at Zywave’s then-current list price, and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this Section 10.12 do not constitute a waiver of Zywave’s termination rights or any other rights hereunder. Without prejudice to Zywave’s audit rights pursuant to the Agreement, Customer will, within thirty (30) days of Zywave’s request, document and certify that use of the Services hereunder at the time of the request, including but not limited to maintaining a current Audit Form, is in full conformity with the licenses granted hereunder. Failure to comply with this section may result in penalty equal to 25% of Customer’s then-current License Fees on each regularly scheduled invoice issued while Customer fails to comply.
    13. Survival. Sections 1, 3, 4, 5, 6.2, 8, 9 and 10 shall survive expiration or any termination of this Agreement for as long as necessary to permit their full discharge.