1.1

General. This Agreement sets forth the terms and conditions under which Tradable Bits makes available the Tradable Bits Solution. These Terms of Service do not, absent the execution of a Statement of Work create any business relationship or impose any obligation on Tradable Bits to provide any license, access, product, or service.

1.2

Statements of Work. Tradable Bits and Company will identify the Tradable Bits Solution subject to this Agreement in one or more Statements of Work. Each Statement of Work will be duly executed as an amendment to the Agreement in accordance with Article 11 and will be deemed to be incorporated by reference into the terms and conditions of this Agreement. Provided Tradable Bits and Company execute the required Statement of Work and subject to the terms and conditions of this Agreement, Tradable Bits will, if applicable, provide the Tradable Bits Solution. If at any time during the Term, Company registers or signs up for certain additional add on functionalities of the Products, Tradable Bits will make the applicable Products and such functionality available to Company subject to such additional terms and conditions set out in an applicable Statement of Work and that are incorporated into this Agreement by reference and are legally binding.

2.1

Provision of the Tradable Bits Solution. Tradable Bits will: (i) make the Products available to Company for use by Company and its Authorized Users, for Company’s internal business purposes; and (ii) perform the Services set out in the applicable Statement of Work, in each instance subject to this Agreement. Tradable Bits may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (i) suspend Company’s access to or use of the Products or any component of them: (A) for scheduled maintenance; (B) due to a Force Majeure Event; (C) if Tradable Bits believes in good faith that Company or any Authorized User has violated any provision of this Agreement; (D) to address any emergency security concern; (E) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Laws; or (F) for any other reason as provided in this Agreement; and (ii) make any Modifications to the Products.

2.2

Restrictions on Use. Except as otherwise permitted under this Agreement, Company will not and will not permit any other Person to: (i) use the Tradable Bits Solution except in accordance with the Usage Guidelines; (ii) develop any Company Property that: (A) is obscene or pornographic; (B) infringes on any third party’s Intellectual Property Rights or rights of publicity or privacy; (C) contains any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data; or (D) otherwise violates any Applicable Laws; (iii) use the Tradable Bits Solution in a manner which brings Tradable Bits or any of its trademarks into public disrepute, contempt, scandal or ridicule, adversely affects the reputation or goodwill of Tradable Bits or any of its the trademarks, or adversely affects the relationship between Tradable Bits and any of its licensors or other customers; (iv) use the Tradable Bits Solution for any High Risk Activities; (v) circumvent, disable or otherwise interfere with security-related or technical features or protocols of Tradable Bits Solution; and (iv) access or use the Tradable Bits Solution (including for clarity, Products and any other Tradable Bits Property) or develop the Company Property, for the purpose of building, or understanding how to build, a substantially similar or competitive product, services or models.

2.3

Company Dependencies. Company acknowledges that Tradable Bits’ ability to provide the Professional Services is dependent upon the cooperation of and assistance from Company. Company will cooperate with Tradable Bits in the performance of the Professional Services and in the development of the Deliverables, including by providing access (whether onsite or remotely) to Company’s personnel, systems, equipment, or communications facilities, as set out in the applicable Statement of Work (“Company Dependencies”). If Company has not performed the mutually agreed Company Dependencies including but not limited to providing all necessary cooperation or information to Tradable Bits, or Tradable Bits is otherwise denied or delayed access or information by Company, then Tradable Bits will be excused, without liability, from performing any further Professional Services. Without limiting the foregoing, if Tradable Bits’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Company, any of its personnel, agents, subcontractors, consultants, or employees, Tradable Bits will not be deemed in breach of its obligations under this Agreement, including its obligations to meet applicable milestones, or otherwise liable for any costs, charges, or losses sustained or incurred by Company, in each case, to the extent arising directly from such prevention or delay.

2.4

Support Services; Content and Supported Platforms. Company will have access to support services if set forth in an applicable Statement of Work (“Support Services”). Tradable Bits will host the Content and provide reasonable support to Authorized Users in relation to any problems encountered in using the Tradable Bits Solution. Any complaints or disputes with End Users in relation to Content should be notified to Tradable Bits but Company acknowledges that Tradable Bits is a conduit and is not responsible for the Content or First Party Data Processed and made available through the Tradable Bits Solution. Without limiting the foregoing, the Tradable Bits Solution works by integrating and receiving Content through the Supported Platforms and First Party Data. Tradable Bits is not affiliated with the Supported Platforms and does not have control over the Supported Platforms’ services. Company’s use, and continued use, of the Tradable Bits Solution through Supported Platforms is subject to the terms and conditions, privacy policies and other guidelines applicable to such Supported Platforms.

2.5

Company Portal. The Tradable Bits Solution can be embedded as a view on the Company Portal and the Company Portal will include Company Marks. Tradable Bits retains the right to determine functionality and all other aspects of the Tradable Bits Solution (including the right to re-design, Modify, remove and alter the content, appearance, design, functionality, and any element of the Tradable Bits API, aspect, portion or feature thereof, from time to time).

2.6

Subcontracting. Tradable Bits may engage third parties to provide Tradable Bits Solution or any part of them, without Company’s consent and without prior notice to Company provided that the delegating or subcontracting of all or any part of Tradable Bits’ obligations set out in this Agreement to any third party will not relieve Tradable Bits from any obligation or liability under this Agreement.

3.1

Company Credentials. Company is responsible for ensuring any login credentials it has been provided for accessing the applicable Products (“Company Credentials”) are kept secure and acknowledges that any disclosure of Company Credentials to other Persons is at Company’s own risk. Company acknowledges and agrees that any use of the applicable Products through Company Credentials by other Persons will be deemed to be use by Company, and Company will be responsible for all such use, including any associated Fees.

3.2

Company Responsibilities. As between the Parties, Company will: (i) have sole responsibility for the accuracy, quality, and legality of all Company Data; (ii) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Tradable Bits Solution and notify Tradable Bits promptly of any unauthorized access or use; (iii) have sole responsibility for any Company Data or Supported Platform that it installs, uses, or enables; and (iv) ensure compliance with this Agreement and the Usage Guidelines by its Authorized Users, and any breach of its Authorized Users will be deemed a breach of this Agreement by Company. Company will not: (A) use the Tradable Bits Solution in violation of Applicable Laws; (B) in connection with the Tradable Bits Solution, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (C) knowingly send or store Malicious Code in connection with the Tradable Bits Solution; (D) knowingly interfere with or disrupt performance of the Tradable Bits Solution or the data contained therein; or (E) attempt to gain access to the Tradable Bits Solution or its related systems or networks in a manner not set forth in the Documentation. While Company may integrate the applicable Products into Company Portal, Company acknowledges and agrees that Company is solely responsible for such integration and Tradable Bits is not responsible or liable for any failure of such integration or of the Company Offering. Company will comply with all export laws and regulations under Applicable Laws that may apply to its access to or use of the Tradable Bits Property. Tradable Bits makes no representation or warranty that the Tradable Bits Property may be exported without Company first obtaining appropriate licenses or permits under Applicable Laws, or that any such license or permit has been, will be, or can be obtained.

4.1

Ownership of Company Property. Subject to the rights granted in this Article 4, Company retains all right, title and interest including Intellectual Property Rights in and to Company Property. Company hereby grants to Tradable Bits: (i) a nonexclusive, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Article 11), sublicensable, and fully paid-up licence during the Term to access, collect, use, Process, store, transfer, transmit, copy, Modify, adapt, and display Company Property solely to provide the Tradable Bits Solution; (ii) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Article 11), sublicensable, and fully paid-up licence to access, collect, use, Process, store, transfer, transmit, copy, Modify, adapt, and display Company Property to: (A) generate Usage Data and collect, produce, generate, analyze data and other information relating to the provision, use and performance of the Tradable Bits Solution (including Usage Data, Content, First Party Data and information concerning Company and data derived therefrom) (together, “Information”); (B) produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”); and (C) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Article 11), sublicensable, and fully paid-up licence to access, collect, use, Process, store, transfer, transmit, copy, Modify, adapt, and display Company Property to produce or generate De-Identified Data as defined and set forth in the applicable Statement of Work. Tradable Bits may use, Process, store, disclose, transfer, transmit, copy, Modify and display the Aggregated Data and Usage Data for any purpose and without restriction or obligation to Company of any kind. Aggregated Data and Usage Data is not Company Data and is not Company’s Confidential Information.

4.2

Ownership of Tradable Bits Property. Tradable Bits or its licensors retain all right, title and interest including Intellectual Property Rights in and to Tradable Bits Property. All rights not expressly granted by Tradable Bits to Company under this Agreement are reserved. Subject to the terms and conditions of this Agreement, Tradable Bits hereby grants to Company, a revocable, non-exclusive, non-transferable, non-sublicensable (other than to Authorized Users as provided herein), limited license during the SOW Term to: (i) use the Documentation solely for the purpose of use and receipt of the Tradable Bits Platform; and (ii) use the Tradable Bits API (if set forth in the SOW) solely for the purpose of facilitating the transfer of information from Company Portal to the Tradable Bits Platform.

4.3

Publicity. For the avoidance of doubt, Company will not be named in any market research, case studies or other initiatives which make use of the Usage Data, unless Company consents to the same, which consent will not be unreasonably withheld or delayed, and Tradable Bits is solely responsible for its use of Usage Data.

4.4

Licence to Company Marks. Company hereby grants Tradable Bits a worldwide, non-exclusive, royalty free, revocable licence to use Company’s marks provided to Tradable Bits to carry out Tradable Bits’ obligations under the Agreement (“Company Marks”), including with Company’s prior written approval, incorporating the Company Marks on any white papers provided to Company and as part of branding the Company Portal. The Company Portal will be branded “powered by Tradable Bits Media” in such location and size as the Parties agree. Tradable Bits will not alter any Company Marks from the form provided to Tradable Bits (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same). Tradable Bits will comply with Company’s removal requests as to specific uses of Company Marks (provided the Company is unable to do so using standard functionality made available to Company via the Tradable Bits Solution). Any goodwill arising from the use of the Company Marks will accrue to the Company.

4.5

Feedback. To the extent that Company or any Authorized User submits ideas, suggestions, documents, or proposals regarding the Tradable Bits Solution to Tradable Bits (“Feedback”), Company acknowledges and agrees that: (i) the Feedback does not contain confidential or proprietary information and Tradable Bits is not under any obligation of confidentiality with respect to the Feedback; and (ii) Tradable Bits will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Company for such use.

5.1

Third Party Licensed Technology. Products contain or require the use of Third Party Licensed Technology, Company will accept and comply with the license terms applicable to such Third Party Licensed Technology. If Company does not agree to abide by the applicable license terms for any such Third Party Licensed Technology, then Company should not install, access, or use such Third Party Licensed Technology. Any acquisition by Company of Third Party Licensed Technology, and any exchange of data between Company and any such provider of Third Party Licensed Technology is solely between Company and the applicable Third Party Licensed Technology provider. Tradable Bits does not warrant or support Third Party Licensed Technology, even if they are designated by Tradable Bits as “certified” or otherwise recommended. Tradable Bits cannot guarantee the continued availability of Third Party Licensed Technology features, and may cease providing them without entitling Company to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Licensed Technology ceases to make the Third Party Licensed Technology available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Tradable Bits. Tradable Bits is not responsible for any disclosure, modification or deletion of Company Data resulting from access to Company Data by such Third Party Licensed Technology or their providers.

6.1

Fees and Payments. Company will be responsible for paying the Fees at the times and in the amounts specified by Tradable Bits in an invoice. Unless otherwise agreed upon in a Statement of Work, Fees are non-cancelable and non-refundable and are calculated on a per Authorized User basis on an annual subscription. Unless otherwise set forth in the SOW, Fees are due in advance and payable within 30 days from the date of the invoice. Tradable Bits reserves the right to suspend the Tradable Bits Solution in the event that Company is late in making any payment due hereunder, as provided below in Section 6.3. If Company’s use of the Tradable Bits Solution exceeds the service capacity set forth on a SOW or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Company will be billed for such usage and Company will pay the additional fees in accordance with this Agreement. Tradable Bits reserves the right to change the Fees and institute new charges on each anniversary of the Effective Date upon providing not less than 30 days prior notice to Company.

6.2

Taxes. All Fees provided for in the Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by the Agreement, including excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Tradable Bits (“Taxes”). Company will be responsible for and pay all applicable Taxes.

6.3

Overdue Payments. Any payment not received from Company by the due date will accrue late charges at the rate of one percent of the outstanding balance per month, or the maximum legal rate (if less), from the date such payment was due until the date paid. If Company account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Tradable Bits reserves the right to suspend the Tradable Bits Solution provided to Company (including access to the Tradable Bits Platform, including the Company Portal), until such amounts are paid in full or terminate access to the Tradable Bits Solution and the Agreement. Any suspension of the Tradable Bit Solution by Tradable Bits pursuant to this Agreement will not excuse Company from its obligation to make payments under this Agreement.

7.1

Privacy. Personal Data will be Processed in accordance with the Data Processing Addendum.

8.1

Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will: (i) not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its own personnel and Authorized Users (if Recipient is Company), or its and its Affiliate’s employees, contractors, subcontractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is Tradable Bits), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Tradable Bits Solution, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement; (ii) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; (iii) not alter or remove from any Confidential Information of Discloser any proprietary legend; and (iv) maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.

8.2

Exceptions to Confidentiality. Notwithstanding Section 8.1, Recipient may disclose Discloser’s Confidential Information: (i) only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Tradable Bits, to potential assignees, acquirers or successors of Tradable Bits if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Tradable Bits.

8.3

Injunction and other equitable relief. Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Article 8 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Article 8 and to the specific enforcement of the terms of this Article 8, in addition to any other remedy to which Discloser would be entitled.

8.4

Return of Confidential Information. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Company Data which is addressed at Section 10.4) of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, Tradable Bits may retain any electronically archived Company’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Article 8. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Article 8.

9.1

Company Warranties. Company represents and warrants to Tradable Bits that: (i) any Company branding or materials provided for the purposes of the Agreement (including the Content for use by Tradable Bits to provide services hereunder) will not infringe any third-party Intellectual Property Rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights; (ii) Company will perform its obligations under the Agreement in a commercially reasonable manner consistent with industry standards and in compliance with all Applicable Laws (including Anti-Spam Laws and privacy laws) applicable to Company; (iii) Company has obtained and provided, and will continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and will continue to have all necessary authority in and relating to the Company Data (including Personal Data), for Tradable Bits to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Laws, including applicable privacy laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and will inform Tradable Bits immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon; (iv) Company will not permit any Authorized User to access and use the Tradable Bits Platform or other Tradable Bits Property from Russia, China, or any country: (A) subject to any embargo or sanction by the United States or Canada (collectively, the “Embargoed Countries”); or (B) on the U.S. Department of the Treasury’s list of Specially Designated Nationals, any other restricted party lists (existing now or in the future) identified by the Office of Foreign Asset Control, the U.S. Department of Commerce Denied Persons List or Entity List, Canada control lists or any other restricted party lists (collectively, “Restricted Party Lists”); (v) it will: (A) only send or cause or permit to be sent emails, text messages or other commercial electronic messages (“CEMs”) related to the Tradable Bits Platform in compliance with Anti-Spam Laws, and, without limiting the foregoing, only to recipients from whom Company has obtained all necessary consents and provided all necessary notices as required by and in compliance with Applicable Laws, including Anti-Spam Laws, and (B) not send or cause or permit to be sent any CEMs on behalf of Tradable Bits or that a recipient would reasonably believe have been sent on behalf of Tradable Bits; and (vi) Company will comply with Section 3.2 (Company Responsibilities). Company acknowledges and agrees that it will be the sender of any commercial electronic messages sent pursuant to this Agreement. Any template, sample or other notices provided to Company by Tradable Bits pursuant to this Agreement or otherwise are for reference only and Tradable Bits does not represent that such templates, samples or notices are sufficient to meet Company’s obligations under Applicable Laws.

9.2

DISCLAIMER. TRADABLE BITS DOES NOT WARRANT THAT THE TRADABLE BITS SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TRADABLE BITS SOLUTION EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE TRADABLE BITS SOLUTION (OR ANY PART OF THEM), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY TRADABLE BITS TO COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY LICENSED TECHNOLOGY IS STRICTLY BETWEEN COMPANY AND THE THIRD PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, TRADABLE BITS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, TRADABLE BITS EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO COMPANY IN CONNECTION WITH COMPANY’S USE OF THE TRADABLE BITS SOLUTION (OR ANY PART OF THEM), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY COMPANY FOR ANY PURPOSE WHATSOEVER. WITHOUT LIMITING THE FOREGOING, TRADABLE BITS HAS NO OBLIGATION TO REVIEW ANY NOTICES OR CONSENTS OR DETERMINE THE SUFFICIENCY OF SUCH PROCESSES UNDER PRIVACY LAW. TRADABLE BITS WILL USE THE PERSONAL INFORMATION, FIRST PARTY DATA AND CONTENT IT HANDLES IN PERFORMING THE SERVICES “AS IS”, AND IS NOT RESPONSIBLE FOR REVIEWING, VALIDATING OR OTHERWISE CONFIRMING THE ACCURACY, APPROPRIATENESS OR COMPLETENESS OF SUCH PERSONAL INFORMATION, FIRST PARTY DATA AND CONTENT.

9.3

Indemnity.

9.4

Limitation of Liability. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.

10.1

Term. This Agreement continues from the Effective Date and continues until all Statements of Work have expired or otherwise been terminated, unless extended pursuant to the written agreement of the Parties (“Term”). The initial term of each Statement of Work will be set out in the applicable Statement of Work (the “SOW Initial Term”), unless terminated earlier in accordance with this Agreement. Each SOW will automatically renew for successive periods of one year (each a “SOW Renewal Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current SOW Term. If the SOW Term extends past the termination or expiry of the Term, then the terms and conditions of the Agreement that apply to or govern such Statement of Work will survive until the termination or expiry of the SOW Term, as applicable.

10.2

Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3

Additional Tradable Bits Termination Rights. Tradable Bits may terminate the Agreement, including any affected Statement of Work, on notice, with immediate effect, if: (i) a competitor of Tradable Bits acquires Company or Company acquires all or substantially all of a competitor of Tradable Bits, whether by merger or acquisition, assumption of control or purchase of assets, in which case Tradable Bits will return to Company, on a pro rata basis up to the effective date of termination, any pre-paid Fees, (ii) if Company breaches Sections 2.2, 3.2, or 9.1; (iii) as otherwise permitted in this Agreement; (iv) if the relationships with third-party services providers outside of Tradable Bits’ control; or (v) to comply with Applicable Laws or Governmental or Regulatory Authority’s requests.

10.4

Effect of Termination. Upon the effective date of the expiration or termination of this Agreement (the “Termination Effective Date”): (i) Company will immediately cease (and ensure that all Authorized Users immediately cease) accessing or using the applicable Tradable Bits Property; (ii) Company will return any Tradable Bits Property in its possession and certify in writing to Tradable Bits that the Tradable Bits Property has been returned; (iii) no new SOWs may be agreed to or entered into by the Parties; (iv) all Fees due and payable and any amounts due to Tradable Bits are immediately due and are to be immediately paid by Company to Tradable Bits. No expiration or termination will affect Company’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Company to any refund; and (v) upon request made within 30 days after the Termination Effective Date, Tradable Bits will make the Company Data available to Company for export or download. After such 30-day period, Tradable Bits will have no obligation to maintain or provide Company Data and will thereafter delete or destroy all copies of Company Data in the Tradable Bits Solution or otherwise in Tradable Bits’ possession or control, unless legally prohibited.

10.5

Survival. Neither the expiration nor the earlier termination of the Agreement will release either of the Parties from any obligation or liability that accrued prior to such expiration or termination. The provisions of the Agreement requiring performance or fulfilment after the expiration or earlier termination of the Agreement, including Article 1, Article 4, Article 6, Article 8, Article 9, Section 10.4, Section 10.5, Article 11 and such other provisions as are necessary for the interpretation thereof and any other provisions hereof, the nature and intent of which is to survive termination or expiration of the Agreement, will survive the expiration or earlier termination of the Agreement.

11.1

Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Tradable Bits, to the following address: [X] and (ii) if to Company, to the current postal or email address that Tradable Bits has on file with respect to Company. Tradable Bits may change its contact information by posting the new contact information on the Website or by giving notice thereof to Company. Company is solely responsible for keeping its contact information on file with Tradable Bits current at all times during the Term. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, TRADABLE BITS MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING COMPANY 30 DAYS PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY TRADABLE BITS, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE 30 DAYS AFTER THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO COMPANY OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). The Agreement will not be assigned by either Party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other Party, which consent will not unreasonably be withheld, conditioned or delayed. Notwithstanding the foregoing, either Party may freely assign the Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment will not require the consent of the other Party or without notice to the other Party, provided that, in each case, the assignee is not an entity that may be reasonably construed as offering competitive functionality or services to those offered by Tradable Bits. Any assignment in violation of this Section will be null and void from the beginning and will be deemed a material breach of the Agreement. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns. The Agreement will be governed by and interpreted in accordance with the laws of the jurisdiction identified in the Statement of Work, without regard to conflicts of law principles. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the jurisdiction identified in the Statement of Work, with respect to any dispute or claim arising out of or in connection with the Agreement. The U.N. Convention on Contracts for the International Sale of Goods will not apply to the Agreement. This choice of jurisdiction does not prevent: (i) either Party from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction; or (ii) Tradable Bits from seeking remedies to collect unpaid Fees from Company, in any appropriate jurisdiction. Each of the Parties irrevocably waives, to the fullest extent it may effectively do so, the defence of an inconvenient forum to the maintenance of such action, application or proceeding. Neither Party will be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Tradable Bits Solution (“Force Majeure Event”). This Section does not apply to any of Company’s obligations under Article 6, Article 8, or Section 9.3. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Except for Tradable Bits licensors and Indemnitees, there are no third-party beneficiaries to the Agreement. Each Party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of the Agreement. This Agreement (including all SOWs) constitutes the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Company, or in Company’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Tradable Bits Solution; and (ii) do not override or form a part of this Agreement (including any SOW). If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect. No failure or delay by either Party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy. To the extent of a conflict between this Terms of Service and any SOWs: (i) in respect of Article 4 (Ownership; Reservation of Rights), Article 6 (Fees and Payment) Article 8 (Confidentiality), Article 9 (Warranty; Disclaimer; Indemnity; and Limitation of Liability), Section 10.5 (Survival), Article 11 (General Provisions), Article 12 (Definitions), these Terms of Service will prevail; and (ii) for all other Sections, unless the SOW expressly states that it modifies or varies these Terms of Service, these Terms of Service will prevail. The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the Parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.

12.1

As used in this Agreement, the following capitalized words have the meaning set out below:

“Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.

“Aggregated Data” has the meaning set out in Article 4.

“Agreement” means these Terms of Service, including Data Processing Addendum, Usage Guidelines, and any other exhibits, addenda, or attachments hereto, and any fully executed Statement of Work.

“Anti-Spam Laws” means Canada’s Anti-Spam Legislation and the regulations thereunder and any other Applicable Laws that regulate the same or similar subject matter.

“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.

“Authorized Users” means End Users and any individuals designated by Company to access the back-end features of the Tradable Bits Solution, including the Company Portal, for Company, including the employees, consultants, contractors, agents or other designees of Company and its Affiliates.

“CEMs” has the meaning in Section 9.1.

“Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.

“Company”, “you” or “your” mean the legal entity identified in the SOW referencing this Agreement.

“Company Credentials” has the meaning set out in Section 3.1.

“Company Data” means any data (other than Aggregated Data and Usage Data), information, content, records, and files that Company (or any of its Authorized Users) loads or enters into, transmits to, or makes available to the Tradable Bits Solution, including Personal Data provided by Company or Authorized Users.

“Company Dependencies” has the meaning in Section 2.3.

“Company Marks” has the meaning set out in Article 4.

“Company Offering” means Company Portal that makes use of the Tradable Bits Solution and includes any means the services provided by Company to End Users.

“Company Portal” means the Company-branded webpage to which content related to the Tradable Bits Solution is posted by Company for viewing by the public.

“Company Property” means Company Data, Company Portal, Company Marks, Content and First Party Data. The term “Company Property” does not include any Tradable Bits Property.

“Confidential Information” means any and all information of Discloser or any of its Affiliates, and in the case of Tradable Bits, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, Tradable Bits Property, this Agreement and where Discloser is Company, Company’s Confidential Information includes Company Data. Notwithstanding the foregoing, except with respect to Personal Data, Confidential Information does not include any information that: (i) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (ii) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (iii) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (iv) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.

“Content” means notes, tweets, photographs, videos, gifs and other images and content made available through Company’s social media sites (including Facebook and Twitter) or Supported Platforms and uploaded to or made accessible through the Tradable Bits Solution by Company or End Users, including all Personal Data relating thereto.

“Data Processing Addendum” means the data processing addendum located at DPA as updated by Tradable Bits from time to time.

“De-Identified Data” has the meaning in the applicable SOW.

“Deliverables” means the work product, reports, data, milestones, and customizations, Deliverables or other items developed, generated, created or otherwise delivered by Tradable Bit or any of its Personnel, either alone or in collaboration with others, in connection with Professional Services under any applicable SOW.

“Discloser” means the Party disclosing its Confidential Information to a Recipient.

“Documentation” means Tradable Bits’ manuals, instructions or other documents or materials listed in a SOW that Tradable Bits provides or makes available to Company in any form or medium and which describe the functionality, components, features or requirements of the Tradable Bits Platform, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of them.

“Effective Date” has the meaning in the preamble.

“End Users” means an individual that visits the Company Portal and who may upload Content belonging to the End User (including content not previously provided by a Supported Platform) to the Tradable Bits Solution.

“Fees” means any set-up fees, access fees and support fees indicated in a Statement of Work.

“First Party Data” means any Content that has been imported manually or automatically (via Tradable Bits API integration) from Company’s data storage partners (including Ticketmaster, Frontgate, Eventbrite, Salesforce, Oracle, Mailchimp, Sendgrid, and other companies for which the Tradable Bits Solution has been identified as a supported third party platform).

“Force Majeure Event” has the meaning set out in Article 11.

“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental, or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, court or other law, rule or regulation-making entity having or purporting to have jurisdiction over any person or matter related to this Agreement.

“Gross Negligence or Wilful Misconduct” means any act or failure to act in breach of a duty of care that was intended to cause harm, which rises to the level of intention wrongdoing, or was in reckless disregard of a wanton indifference to the harmful and foreseeable consequences of such act or failure to act but does not include an act or failure to act that constituted merely a lack of due care (or a contractual breach alone).

“High Risk Activities” means activities where the use or failure of the Tradable Bits Solution would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage (such as the creation or operation of weaponry).

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Loss” or “Losses” means any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations.

“Party” means either Tradable Bits or Company, and “Parties” means both.

“Person” means an individual, corporation, company, limited liability company, body corporate, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.

“Personal Data” has the meaning in the Data Processing Addendum.

“Processing” has the meaning in the Data Processing Addendum.

“Professional Services” means professional services performed by Tradable Bits if set forth in an applicable Statement of Work pursuant to this Agreement.

“Products” means as applicable, Tradable Bits Platform, Tradable Bits API, add -ons collectively, and any part thereof. The term “Products” excludes any Third Party Products and Company Property.

“Recipient” means a Party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information of a Discloser.

“Services” means any training services, Professional Services and Support Services, collectively, and any part thereof.

“SOW Initial Term” has the meaning set out in Section 10.1.

“SOW Renewal Term” has the meaning set out in Section 10.1.

“SOW Term” means the Initial SOW Term and all SOW Renewal Terms.

“Statement of Work” or “SOW” means any Tradable Bits provided statement of work, proposal, welcome letter, online registration, order description or order confirmation referencing this these Terms of Service.

“Supported Platforms” means third party social networking sites supported by the Tradable Bits Solution including, Instagram, Twitter, Facebook, YouTube, Flickr, Spotify, Pinterest, Strava and any other social media site listed on the Website.

“Support Services” has the meaning in Section 2.4.

“Taxes” has the meaning set out in Article 6.

“Term” has the meaning set out in Section 10.1.

“Termination Effective Date” has the meaning set out in Section 10.4.

“Third Party Licensed Technology” means third party technology that is licensed under separate license terms and not under this Agreement.

“Third-Party Products“ means the Third Party licensed Technology, Supported Platforms and any other third party products or services.

“Tradable Bits”, “we” “us” or “our” means the Tradable Bits legal entity identified in the SOW referencing this Agreement.

“Tradable Bits API” means the application programming interface or other means used to connect the Company to the Tradable Bits Solution.

“Tradable Bits Platform” means the Tradable Bits proprietary software platform that powers the Website and Company Portal, including all application program interfaces, software code, derivatives, Modifications, updates and upgrades to the same. The term “Tradable Bits Solution” does not but does not include Professional Services or Third-Party Products.

“Tradable Bits Property” means; (i) Tradable Bits Solution; (ii) anything developed or delivered by or on behalf of Tradable Bits in accordance with the terms of this Agreement including any Deliverables, reports, Documentation, Aggregated Data, Usage Data, De-Identified Data, Information, and any metadata that is generated by Tradable Bits Solution; Tradable Bits’ Confidential Information; and (iv) any Modifications to the foregoing.

“Tradable Bits Solution” means the Products and the Services, as Modified from time to time, collectively, and any part thereof. The term “Tradable Bits Solution” does not but does not include Third-Party Products.

“Usage Data” means statistical data and other information, including, data relating to the number of page views, return visits, social logins, track time/clicks, likes, bounce rates derived from End Users or other Authorized Users time spent using the Company Portal, and derived from Company’s and Authorized Users’ use of the Tradable Bits Solution and other services as mutually agreed upon, excluding raw Content.

“Usage Guidelines” means the usage guidelines located at Usage Guidelines, as updated by Tradable Bits from time to time.

“Website” means any websites used by Tradable Bits to provide the Tradable Bits Platform.