Effective: January 1, 2018

GUIDECX MASTER SERVICES AGREEMENT

1.        AGREEMENT STRUCTURE AND DEFINITIONS

1.1.      This Master Agreement establishes the general terms and conditions to which the parties have agreed with respect to the provision of Products and Services by GuideCX to Client. Additional terms for the purchase of a specific Product or Service are set forth in the Order(s). “Order” means the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of this Master Agreement, and describes order-specific information, such as description of Products and Services ordered, License Metrics, fees, and milestones. At any time after execution of the initial Order, Customer may purchase additional Products or otherwise expand the scope of Products granted under an Order, upon GuideCX’s receipt and acceptance of a new Order specifying the foregoing.

1.2.   This Master Agreement, along with Order(s) is referred to as the “Agreement”. The parties acknowledge receipt of and agree to be bound by the terms and conditions of the Agreement. All pre-printed or standard terms of any Customer purchase order or other business processing document shall have no effect.

1.3.      To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of an Order, the terms and conditions of the Master Agreement shall control, except where the Order expressly states the intent to supersede a specific portion of the Master Agreement.

1.4.      Additional Definitions:

 “Customer Data” means any data, information, or material Customer or any authorized user provides or submits through the Products or Services.

“Contact Information” means email address, phone, job role, and company you are associated with.

 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, 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.

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, and 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.

 “License Metrics” means the limitation on the usage of Products or the financial metric(s) used to calculate applicable fees, and designated by a term such as the number of “users”, “# of projects”, and the like.

 “Product Activation Date” means the date billing will begin.

Products” means collectively (i) software programs (including updates and documentation), (ii) content, templates, information, data, text, software, music, sound, photographs, graphics, video messages or other material that GuideCX may deliver to Customer as part of the Services and (iii) all toolkits and any other programs provided by GuideCX hereunder, training materials, tutorials and related documentation provided by GuideCX in connection with the performance of Services.

Professional Services” means training, implementation, data conversion, integrations and other consulting services.

SaaS Products means the provision of access to the Products identified in the Order from a server farm located at GuideCX or its hosting provider’s data center, including offline components.

Services” means collectively the Professional Services.

 “Term” means the Initial Term and any renewal terms.

User” means an individual identifiable by a name who is an employee or an individual contractor of Customer.

2.        PRODUCTS AND SERVICES

2.1.      Set-Up and Implementation. GuideCX shall provide set-up and implementation services and such additional Professional Services as described in the Order(s). Customer must adopt procedures to ensure the accuracy of input data; examine and confirm results prior to use; adopt procedures to identify and correct Customer or User errors and omissions; and provide an authorized primary and a backup point of contact who will coordinate communication and activities, make or facilitate making decisions during the implementation and post-implementation.

2.2.     Cooperation. Customer acknowledges and agrees that GuideCX’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Products and Services.  GuideCX shall be entitled to rely on all decisions and approvals by Customer. If Customer does not reasonably comply with this Section, the Product Activation Date and Term of this Agreement shall not be affected or modified. Any failure by Customer to comply with this section gives GuideCX the right to terminate the Agreement and invoke Section 9.4. GuideCX shall provide Customer with good faith cooperation in working towards completing the implementation of the Products and Services.

2.3.      Services Generally. Subject to Customer’s and its Users’ compliance with the Agreement and timely payment of the applicable fees, GuideCX shall make the Products and Services available to Customer and its Users in accordance with the terms of this Master Agreement and the applicable Order Form during the Term. Access to the Products is limited to the version of the Products in GuideCX’s production environment. GuideCX regularly updates the Products and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements.

2.4.      Environment. GuideCX will provide Customer online access to and use of the Products via the Internet by use of a GuideCX-approved, Customer-provided browser.  The SaaS Products will be hosted on a server that is maintained by GuideCX or its designated third party supplier or data center. Customer is solely responsible for obtaining and maintaining at its own expense all equipment needed to access the Products, including but not limited to procuring, installing, and operating Customer’s computers, hardware, communications lines, internet connectivity, bandwidth and any operating systems required for the Customer’s use of the Products.

2.5.      Security.  GuideCX will implement reasonable and appropriate measures designed to secure Customer Data against accidental or unlawful loss, access or disclosure. Customer will maintain commercially reasonable security procedures for the transmission of data to GuideCX.  Customer will notify GuideCX immediately of any suspected security breach regarding transmissions to or from GuideCX.  Customer will not:  (a) breach or attempt to breach the security of the Products or any network, servers, data, computers or other hardware relating to or used in connection with the Products, or any third party interfacing with any part of the Products; or (b) use or distribute through the Products any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Products or the operations or assets of any other customer of GuideCX or any third party.  Customer will comply with the user authentication requirements for use of the Products.  Customer will specify, in writing, one or more individuals who will be authorized by Customer to administer Customer’s access to and use of the Products or Services on behalf of Customer.  Customer will only permit authorized Users to access and use the Products.  GuideCX has no obligation to verify the identity of any person who gains access to the Products by means of an access ID.  GuideCX may rely on the instructions and actions as being those authorized by Customer.  Customer is solely responsible for monitoring its authorized Users’ access to and use of the SaaS Products. Customer acknowledges that there are permissions/settings available within GuideCX to make information/data available to non-authenticated users, it is Customers responsibility to control these permissions/settings.  Any failure by a User to comply with this section shall be deemed to be a material breach of the Agreement by Customer, and GuideCX shall not be liable for any damages incurred by Customer or any third party resulting from such breach.  Customer must immediately take all necessary steps, including providing notice to GuideCX, to effect the termination of an access ID for any User if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.

2.6.      Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of the data it submits to the Products.

2.7.      Training. Customer expressly acknowledges that it bears all responsibility for arranging any training for any User of the Products and Services, including any additional training for new Users added to Customer’s account after installation or implementation of the Products or Services.  Customer acknowledges that certain training, including training for new Users, may be subject to additional fees as determined by GuideCX.  The parties agree that performance or non-performance under Section 2.7 will not constitute a breach of this Agreement and shall not give rise to any claim by either party for damages.

2.8      Email Notification. You understand that GuideCX at times will send notification email to users on behalf of the project manager or task assignee.  These emails will come to individuals with a “reply to” address of your email if you are the task assignee or project manager on an associated project or project task.

2.9      Integrations.   Customer may (if Customer’s subscription includes one or more Integrations) integrate the Subscription Service with Customer’s accounts or subscriptions to third-party services or applications. In such case, Customer Users may transfer information between the Subscription Service and such third-party services or applications via managed integrated packages, resulting in the modification of Customer Content or the content and information stored in Customer’s third-party services or applications. GuideCX will have no liability for modification or deletion of Customer Content or data in third-party services or applications through use of a Integration by a Customer User.

3.        USE RIGHTS AND RESTRICTIONS

3.1.      Grant of Use.  Subject to the provisions contained in this Agreement, including without limitation the restrictions set forth in this section 3 and timely payment of the applicable fees, GuideCX hereby grants Customer for the Term a non‑transferable, non‑exclusive license, without the right to grant sublicenses to access and use the Products identified in the Order solely for the internal business purposes of Customer. Customer acknowledges that GuideCX has no delivery obligation and will not ship copies of the Products to Customer as part of the Products. Customer agrees that it does not acquire under the Agreement any license to use the Products in excess of the scope of the intended use or of Section 3.2, and/or duration of the Term.

3.2.      Restrictions. Customer shall use the Products only for the internal business purposes of Customer.  Customer shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Products or Services; (b) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Products or Services, in whole or in part, for competitive purposes or otherwise; (c) allow access to, provide, divulge or make available the Products, Professional Services, Services and any applicable Web Design and Content Products to any user other than Customer’s employees and individual contractors who have a need to such access and who shall be bound by nondisclosure obligations that are at least as restrictive as the terms of this Agreement; (d) write or develop any derivative works based upon the Products or Services; (e) modify, adapt, translate or otherwise make any changes to the Products or Services or any part thereof; (f) use the Products to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (g) disclose or publish, without GuideCX’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Products or Services; or (h) otherwise use or copy the same except as expressly permitted herein. Any failure by to comply with this section shall be deemed to be a material breach of the Agreement by Customer.

3.3.      Authorized Users. Customer shall cause all Users obtaining access to the Products, to access the Products including Mobile Product(s) designed to be used on the iPhone/iPad or Android Platforms solely in accordance with the terms hereof and the terms of GuideCX’s click-through end-user license agreement which each such User must agree to prior to using the Products. GuideCX authorizes one individual per User. Individuals MAY NOT share user identifications to access the Products at any time.  Sharing of such identifications may result in immediate termination of the Agreement and a material breach of this Agreement. Customer will be responsible for payment of the remaining balance of the then-current Term and for any additional costs or fees relating to any additional unauthorized users at GuideCX’s discretion.

3.4.      License Metrics. Customer understands that its right to use the Products is limited by the number of License Metrics purchased as stated in the applicable Order. All fees are based on the License Metrics purchased. The quantity(ies) of License Metrics provided in the initial Order represent minimum amounts that Customer has committed to for the Term.  There shall be no fee adjustments or refunds for any decreases in usage or License Metrics during the Term. Additional License Metrics must be purchased in the event usage exceeds the licensed quantity. Additional License Metrics, if any, are prorated for the remainder of the then-current Term of the applicable Order and automatically renewed for subsequent terms.

3.5.      Acceptable Use Policy and Compliance with Applicable Laws. Customer acknowledges and agrees that GuideCX does not monitor or police the content of communications or data of Customer or its Users uploaded in or transmitted through the Products, and that GuideCX shall not be responsible for the content of any such communications or transmissions.  Customer shall use the Products and Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations, including without limitation the US CAN-SPAM Act of 2003, 15 U.S.C. 7701, and any other national, state or local restrictions on the use of email and the Telephone Consumer Protection Act of 1991 as well as all other local, state, federal or national law which govern the use of, sending or receiving text messages. Further, Customer shall at all times comply with the terms of 18 U.S.C. § 2721, as may be amended from time to time, regarding the authorized use and disclosure of “personal information” and “highly restricted personal information” (as those terms are defined in 18 U.S.C § 2725). Customer agrees not to post on the Web Products or Services, or any other applicable Products or Services, 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, or false advertising). Customer further agrees not to use the Web Products or Services, or any other applicable Products or Services, to solicit users to join or to procure products or services competitive to the Products or Services. GuideCX 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. By signing the Agreement, Customer agrees to indemnify GuideCX or any of its subsidiaries, affiliates, suppliers, and their directors, officers, agents or employees against any and all liability associated with Customer or its Users breach of this section.  The references above that specify U.S. laws and regulations are intended to govern U.S. customers only; however, this does not exclude non-U.S. customers from obligations under their own national, provincial, state or local laws.

3.6.     GuideCX Compliance. GuideCX will comply with all applicable laws, ordinances, rules, and regulations governing its duties and responsibilities under this Agreement and shall implement and maintain appropriate policies and procedures consistent with those responsibilities.

3.7.      Texting.    Customer is solely responsible for ensuring that its use of all texting features comply with all federal, state and local laws. The texting features are subject to any and all additional provisions in the applicable Order.

4.         FINANCIAL TERMS

4.1.      General. Fees and payment terms are specified in the applicable Order. Except as otherwise expressly specified in the Order, all recurring fees payment obligations start from the execution of the Order.  GuideCX may increase the fees for any Products or Services once per year by up to 5% or by a percentage equal to the current Consumer Price Index.  GuideCX may increase the fees for any integration at any time. GuideCX will give Customer thirty (30) days written notice of any fee increase. Unless otherwise specified in the Order, payment of all fees is due 30 days after the invoice date. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Failure to make timely payments shall be a material breach of the Agreement. Customer shall reimburse GuideCX for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due GuideCX hereunder that are not under good faith dispute by Customer.  Amounts paid or payable for Products or Services are not contingent upon the performance of any Professional Services.

4.2.       Taxes. Customer shall be responsible for payment of all taxes (excluding those on GuideCX’s net income) relating to the provision of the Products and Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to GuideCX to evidence Customer’s tax exemption status is provided by Customer to GuideCX prior to the delivery of Products or Services.

4.3.      Travel and Lodging Expenses. Reasonable travel and lodging expenses incurred by GuideCX in the performance of Services on Customer’s site will be billed separately at actual cost so long as GuideCX provides Customer prior written notice that such charges will be incurred.

4.4.      Credit Card Payments. All Dollar amounts referenced herein reflect the cash price for the stated use of the Products and Services.  If Customer elects to pay via credit card, Customer will pay the non-cash price and will need to complete a separate form with GuideCX authorizing the use of Customer’s credit card to pay the agreed non-cash amounts.

4.5.      Data/Message Costs. Standard data (and text, if applicable) rates apply for data (and messages, if applicable) sent from and received by mobile devices as determined by Customer’s wireless provider and Customer is solely responsible for such charges and any other charges from its wireless provider.

5.        CONFIDENTIALITY.

Confidential Information means nonpublic information that the disclosing party designates as being confidential or that under the circumstances surrounding disclosure should be treated as confidential (“Confidential Information”). Confidential Information includes, without limitation: information relating to the disclosing party’s software or hardware products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results but does not include customer database information in de-identified form.  Confidential Information also includes information received from third parties that the disclosing party is obligated to treat as confidential and oral information that is identified by the disclosing party as confidential.  Confidential Information disclosed by a subsidiary of the disclosing party and/or its agents is covered by this Agreement.  Confidential Information includes all tangible materials that contain Confidential Information, whether written or printed documents, computer disks or tapes, whether user or machine-readable.

Confidential Information shall not include any information that: (a) is already known to the receiving party prior to disclosure pursuant to this Master Agreement; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) is received by the receiving party from a third party without any restriction on confidentiality; or (d) is approved for release by prior written authorization of the disclosing party.

The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information.  Without limiting the generality of the foregoing, neither party shall permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the disclosing party and the receiving party shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder.  Either party may only use Confidential Information in order to fulfill its obligations under this Agreement.

The parties agree that the unauthorized disclosure of Confidential Information may cause irreparable harm to the party whose information is disclosed and that such party shall be entitled to request injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.

Any failure by to comply with this section shall be deemed to be a material breach of the Agreement by Customer.

6.        OWNERSHIP – INTELLECTUAL PROPERTY RIGHTS.

The Products and all equipment, infrastructure, websites and other materials or deliverables provided by GuideCX in the performance of all Services will at all times remain the exclusive, sole and absolute property of GuideCX or its licensors.  Customer does not acquire any right, title, or interest in or to such Products and equipment, materials and deliverables except the limited and temporary right to use them as necessary for Customer’s use of the Services. All rights, title and interest in or to any Intellectual Property Rights relating to the Products and Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by GuideCX and its licensors.  Customer may not obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices on any Products or other materials. In the course of this Agreement, GuideCX may create or use Intellectual Property that GuideCX conceived independently or while working with Customer.  The parties mutually acknowledge that GuideCX shall own all right, title and interest in and to such Intellectual Property including without limitation the intellectual property rights relating thereto, and may use such Intellectual Property in its business operations with other customers, without limitation.

Customer retains sole and exclusive ownership to the Customer Data.

7.        DISCLAIMERS.

7.1.     General Warranty Disclaimer. GuideCX makes and the Customer receives no warranties, express, implied, or statutory with respect to the Products and Services provided under this Agreement.  EXCEPT AS EXPRESSLY SET FORTH IN THIS MASTER AGREEMENT, THE PRODUCTS AND ALL SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES, ANY WARRANTIES WITH RESPECT TO TRAINING SERVICES, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE USE AND RESULTS OBTAINED FROM THE PRODUCTS AND SERVICES INCLUDING THE ACCOMPANYING DOCUMENTATION, TECHNOLOGY, DATA CONVERSION, FORMS OR ANY OTHER INTELLECTUAL PROPERTY.  GUIDECX DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY GUIDECX. CUSTOMER ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  GUIDECX DOES NOT THEREFORE GUARANTEE THAT PRODUCTS AND SERVICES WILL BE AVAILABLE AT ALL TIMES. FURTHER, CUSTOMER ACKNOWLEDGES THAT MOBILE PRODUCTS ARE AVAILABLE THROUGH MOBILE DEVICES USED WITHIN THE OPERATING RANGE OF A WIRELESS CARRIER OR WIFI PROVIDER, AS APPLICABLE, AND AS SUCH IS SUBJECT TO TRANSMISSION LIMITATION, INTERRUPTION AND MOBILE DEVICES PERFORMANCE. GUIDECX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. FURTHER, THE PRODUCTS MAY PROVIDE, OR THIRD PARTIES MAY PROVIDE, LINKS TO OTHER WORLD WIDE WEB SITES OR RESOURCES. GUIDECX SHALL NOT BE RESPONSIBLE FOR THE AVAILABILITY OR ACCURACY OF SUCH EXTERNAL RESOURCES. GUIDECX DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SITES OR RESOURCES. GUIDECX AND ITS LICENSORS FURTHER DISCLAIM ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS OR SERVICES, OR ANY CUSTOM PROGRAMS CREATED BY GUIDECX OR ANY THIRD-PARTY SOFTWARE DELIVERED BY GUIDECX WILL MEET CUSTOMER’S NEEDS. THIRD PARTY SOFTWARE IS MADE AVAILABLE BY GUIDECX ON AN “AS IS, AS AVAILABLE” BASIS”. GUIDECX DOES NOT PROVIDE ANY WARRANTY OR SUPPORT FOR CUSTOMER’S SYSTEM DEPLOYMENT OR SYSTEMS ADMINISTRATION, OR CUSTOMER’S MODIFICATIONS TO ITS SYSTEM DEPLOYMENT AND SYSTEMS CONFIGURATION.

7.2.     Connections over the Internet.  CUSTOMER ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CUSTOMER DATA.  ACCORDINGLY, GUIDECX CANNOT AND DOES NOT GUARANTY THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. NOTWITHSTANDING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT GUIDECX will implement reasonable and appropriate measures designed to secure Customer Data against accidental or unlawful loss, access or disclosure AS SET FORTH IN SECTION 2.5 OF THIS AGREEMENT.

7.3.     Legal Compliance.  WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS IN THE AGREEMENT, GUIDECX, ITS AFFILIATES AND SUPPLIERS: (a) MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY THAT THE LICENSED PRODUCTS ARE COMPLIANT WITH ANY LAW, RULE, REGULATION, STATUTE OR OTHER LEGAL REQUIREMENT; AND (b) SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING ANY BENEFIT CUSTOMER MIGHT OBTAIN FROM THE SYSTEM OR THE LICENSED PRODUCTS. THE CUSTOMER BEARS THE SOLE RESPONSIBILITY FOR LEGAL COMPLIANCE RELATING TO THE USE OF THE LICENSED PRODUCTS.

7.4.     Third-Party Content and Equipment.  Certain licensed Products may include software, information or equipment provided by third parties (“Third-Party Products”). The Third-Party Products are licensed to Customer, not sold, and Customer agrees that Customer and its users’ use of such Third-Party Products is subject to, and it and its users shall abide by, any end user license agreement related to such Third-Party Products as well as the terms of the Agreement. GuideCX may immediately terminate Customer’s subscription in whole or in part to any Third-Party Product if GuideCX no longer has the right to provide the related Third-Party Product under an applicable third-party license. Any subscription that Customer may have to other licensed products will remain in effect. All Third-Party Products are provided “as is”. Customer will have no remedy against GuideCX with respect to Third-Party Products, and Customer’s sole remedy for failure of a Third-Party Product will be against the third-party manufacturer or developer.

7.5.     Disclaimer for Third-Party Content. GuideCX is not a publisher of the information supplied to licensed products by third parties. Any information that is part of a licensed Product that is expressed or made available by third parties, including Customers, valuation services, and/or users, are those of the respective authors or distributors and not of GuideCX. GUIDECX ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR APPROVALS WITH REGARD TO SUCH THIRD PARTY INFORMATION.

8.        LIMITATION OF LIABILITY. 

NEITHER GUIDECX NOR ANY OF ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, CONSULTANTS OR SERVICE PROVIDERS, SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES  IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE PRODUCTS OR SERVICES OR MATERIALS , WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, COST OF COVER OR OTHER PECUNIARY LOSS), EVEN IF GUIDECX OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF GUIDECX TO THE CUSTOMER FOR ANY CLAIMS, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF SERVICES FEES PAID HEREUNDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING ALLOCATION OF RISK AND LIMITATION OF LIABILITY HAS BEEN NEGOTIATED AND AGREED BY THE PARTIES AND FORMS THE BASIS OF THEIR WILLINGNESS TO ENTER INTO THIS AGREEMENT.

9.        TERM AND TERMINATION.

9.1.      Master Agreement Term. This Master Agreement shall be binding upon signature of the Order, and shall continue in full force and effect until the expiration or termination of all Orders, unless otherwise terminated earlier as provided hereunder.

9.2.      License Term. The initial term of each of the Products and Services is specified in the Order or applicable agreement (“Initial Term”).

9.3.      Termination. Either party may terminate the Agreement immediately upon written notice at any time if: (a) the other party fails to cure any remediable material breach or provide a written plan of cure reasonably acceptable to the non-breaching party within 30 days of being notified in writing of such breach, except for breach of payment obligations which shall have a ten (10) day cure period; (b) the other party ceases business operations; or (c) the other party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days after commencement of one of the foregoing events). In addition, Customer may terminate this MSA in accordance with Section 5. If the non-breaching party objects to the written plan of cure, the non-breach party must provide such objections in writing and allow for another seven (7) days to cure. Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order. Orders that are not terminated shall continue in full force and effect under the terms of this Agreement. Upon termination or expiration of the Products or Services within the same Product classification of a Core Product or stand-alone Product, the applicable Add-On Products shall automatically terminate.

9.4.      GuideCX’s Remedies for Termination. If GuideCX terminates this Agreement for Customer’s breach as specified under this Agreement, Customer agrees to pay to GuideCX the remaining value of the then-current Initial Term or renewal term (that Customer acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate recurring fees (as set forth in the Order) that will become due during the canceled portion of such Initial Term or renewal term. Payment due under this provision shall be paid according to a plan agreed to by the parties.  GuideCX will be entitled to suspend any or all of its performance obligations hereunder in accordance with the provisions of Section ‎9.5, to modify the payment terms and to request full payment before any additional performance is rendered by GuideCX. Customer shall reimburse GuideCX for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due GuideCX hereunder that are not under good faith dispute by Customer.  Amounts paid or payable for Products or Services are not contingent upon the performance of any Professional Services.

9.5.      Suspension. GuideCX will be entitled to suspend any or all Products or Services upon 10 days written notice to Customer in the event Customer is in breach of this Agreement. Further, GuideCX may suspend Customer’s access and use of the Products and Services if, and so long as, in GuideCX’s reasonable judgment, there is a security risk created by Customer that may interfere with the proper continued provision of the Products, Services or the operation of GuideCX’s network or systems. GuideCX may impose an additional reasonable charge to reinstate service following such suspension due to a breach of this Agreement. Customer remains obligated for all payment obligations under this Agreement in the event of suspension. GuideCX reserves all rights and remedies under the Agreement.

9.6.   Survival.  Sections 1, ‎4, ‎5, ‎6, 7, ‎8, ‎9 and ‎10 shall survive termination of this Agreement.

10.      MISCELLANEOUS PROVISIONS

10.1.    Compliance. Without prejudice to GuideCX audit rights pursuant to this section, upon GuideCX’s request Customer will document and certify that use of the Products and Services is in full conformity with the use rights granted under this Agreement and the applicable Order.  During the term of this Agreement, Customer will maintain and make available to GuideCX records sufficient to permit GuideCX or GuideCX’s independent auditor to verify, upon ten days’ written notice, Customer’s compliance with this Agreement.  Customer will provide assistance, personnel, systems access, and information in a reasonable manner to facilitate the timely completion of GuideCX’s compliance verification.  The audit will be performed during regular business hours. If Customer is not in substantial compliance with the Agreement, Customer will reimburse GuideCX’s reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor) up to $10,000, and Customer will promptly cure any noncompliance, including without limitation payment of any and all fees owed to GuideCX during the period of noncompliance. The rights and remedies under this Section are in addition to any other rights GuideCX may have under this Agreement. Customer acknowledges that the Products may include a license manager component to track usage of the Products and agrees not to impede, disable or otherwise undermine such license manager’s operation.

10.2.    Independent Contractor.  GuideCX and Customer are independent contractors. Neither GuideCX nor Customer are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.

10.3.    Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.  Except as provided in Section ‎10.9, Customer and GuideCX consent to the jurisdiction of the state courts of the State of Utah located in Salt Lake County and the U.S. District Court for the District of Utah.

10.4.    Entire Agreement and Modifications.  Each party acknowledges that it has read this Agreement and agrees that this Agreement is the complete and exclusive statement of the parties and supersedes and merges all prior proposals understandings and agreements, oral or written, including but not limited to prior Master Service Agreements, Non-Disclosure Agreements and any conflicting terms in any prior written contract, between the parties relating to the subject matter hereof, including without limitation, the terms of any customer request for proposal or the standard printed terms on any Customer purchase order.  No modification, amendment or supplement to this Agreement or an Order shall be binding upon the parties hereto unless made in writing and duly signed by the authorized representatives of both parties.

10.5.    Severability.  In the event one or more of the provisions of this Agreement is held to be invalid or otherwise unenforceable by a Court of Law with jurisdiction for the matter in question, the enforceability of the remaining provisions shall be unimpaired.

10.6.    Waiver.   The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.

10.7.    Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns. No party shall assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign this Agreement and all of its rights and obligations hereunder as part of a merger or sale of substantially all the assets or stock of that party.  Any assignment by either party in violation of this section shall be null and void.

10.8.   Arbitration.  Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration proceedings shall be conducted before a single arbitrator from a panel of persons having experience with and knowledge of electronic computers and the computer business, and the arbitrator selected will be an attorney licensed to practice in the state of Utah. The place of arbitration shall be Salt Lake City, Utah. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  The prevailing party shall be entitled to receive from the other party its attorney’s fees and costs incurred in connection with any action, proceeding or arbitration hereunder

10.9.    Force Majeure.  Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity; emergencies; civil unrest, viruses or denial of service attacks, telecommunications failure, or failure of the internet or internet service provider. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

10.10.  Notices.  Any notice required or permitted under this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person and address set forth in the signature block of the Order Form. Notices shall be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this section.

10.11.  Reference.  Customer may, in its sole discretion, be available for reference calls/site visits, publication interviews, marketing case studies and other potential activities that will assist GuideCX in acquiring new customers.

10.12.  Construction.  Unless the context of this Master Agreement clearly requires otherwise, references to the plural include the singular, the singular the plural, and the part the whole.

10.13. Language.  It is the express wish of the parties that the provisions of the Agreement and all related documents be drawn up in English.

10.14 KIDS UNDER 13 AND GUIDECX.  GuideCX is not directed to children, and we expect that any use by children will only be done with the guidance, supervision and consent of their parents, guardians and/or authorized school officials. GuideCX relies on parents and guardians to ensure that minors only use GuideCX if they can understand their rights and responsibilities as laid out in these Terms of Service and in our Privacy Policy.

In the event that you are a school, district or teacher in the United States and want your students, who are under the age of 13, to create GuideCX accounts – including in conjunction with the establishment of a GuideCX Business Class account – you agree that you are responsible for complying with the U.S. Children’s Online Privacy Protection Act (“COPPA”) and, to the extent applicable, the Family Educational Rights and Privacy Act (“FERPA”). This means that you must notify the students’ parents/guardians of the personally identifiable information that GuideCX will collect, and that you will obtain parental/guardian consent before your students establish accounts or use GuideCX. When obtaining such consent, you must provide parents/guardians with a copy of our Privacy Policy. You must keep all consents on file and provide them to us if we request them. For more information on complying with COPPA, see the Federal Trade Commission’s website. If you are located outside of the United States, we will rely upon you to obtain any required consent or approval from the parent or guardian of any student covered by similar laws, and, as a condition to your and your students’ use of GuideCX, you agree that you will be responsible for complying with such laws.