Overview

Digital Salon: Digex Limited incorporated and registered in Ireland with company number 528714 whose registered office is at Unit D9, Southern Link Business Park, Naas, Co Kildare.

The Client: The salon or business whose website is being built and/or managed by Digital Salon.

Commencement Date and Duration

The commencement date for this Agreement is set upon signature. This Agreement is valid until either 30 days’ written notice is served by either party, or a breach of the agreed terms has occurred.

Term: 

Monthly Recurring Agreement. 1 months notice required

Services Provided:

Hosting:

As part of this Agreement, full hosting is provided by the Service Provider for the website platform and associated media. This includes daily backup of the content entered into the system. The infrastructure provided is a service oriented architecture built on the cloud platform Linode. We also utilise Amazon AWS S3 for media storage and CloudFlare for DNS and CDN services. The cloud provider may be changed at the discretion of Square1.

In the event of the system requiring additional capacity an upgrade of the infrastructure will be required. The ongoing costs for the upgraded hosting will be reviewed with the Client based on the increased capacity/complexity of the system.

Hosting also includes :

• ●  Upgrade, patching, configuration, and optimization of pre-installed software.
• ●  Installation of additional modules for pre-installed software (e.g. PHP modules).
• ●  Installation of additional software components to ensure we can maintain a stable
  service for you.

A number of infrastructure redundancy options are available for the Client and are outlined below. They will allow for a minimum interruption or seamless continuation of service in the event of hardware or data center failure. Depending on the complexity of the system, the option to have multiple load balanced servers securely replicated across multiple data centers is available.

Backups

Automated daily server snapshot backups are performed on all servers for all Websites currently hosted at Siteground, as well as specific backups of the Database and Website files, which are taken prior to Themes, plugins and other website maintenance/support activity.

Technical Support 

A support service is provided to the Client to report issues and any malfunctioning of the server infrastructure along with any application issues. Your monthly fee provides you with up to 2 hours of support and change requests per month, this time includes time spent patching servers and fixing server or application issues. Extra support hours and days per month are available to clients who require more than this allocated time. Please see below.

Details on the type of support provided and response times are provided in the section below.

Support, Issues and Resolution

Reporting of Issues

Digital Salon will offer support to the Client via [email protected]  Should an unscheduled outage or system issue be reported, Digital Salon shall respond acknowledging the issue within the relevant Response Time. Support tickets will be responded to as per the Response Times section below. The times listed below are upper bounds – Digital Salon will at all times endeavor to respond as quickly as possible.

Should the issue be discovered by Digital Salon rather than the Client, Digital Salon shall alert the Client to the issue to a predefined email address provided by the Client. Digital Salon shall then address the issue, communicating with the Client as per the Response Times section below.

Examples of what is included in your monthly fee:

Website Back End maintenance:

• Core updates (WordPress version, php version, security packages)
• Theme updates
• Plugin updates
• Weekly back-end updates (website level and server level)

Technical Support:

• Liaising with software third parties (e.g Payment Gateways, External Plugins, like Revolution Slider)
• Add/configure plugins that add an extra functionality to the Website (upon analysis*)
• Any external API integration that is natively supported (e.g integrate mailchimp, etc)
• Any external API integration that is NOT natively supported (upon analysis*)
• Pages with extra functionality (radio, videos)
• Any time spent in Supporting and Maintaining software due to a lack of functionality from existing plugins on the Website

Fees for Additional Technical support and maintenance Days:

As mentioned above, a total of 2 hours of technical support and/or change requests per month is included in your agreement. Additional hours are charged as per the table below. We will document the hours spent over and above what is included in your agreement on this account and can advise if and when you would be required to purchase an additional hours or day. Days or remaining hours cannot be carried over at the end of each month.

Content Change Requests

Change requests are to be sent to [email protected] and can include the below items. Your package has up to 2 hour of content changes and technical support included.

Examples of what is included in your monthly fee:

Content Support (reference):

• Change services/treatment prices
• Add a blog post
• Change text (with minor layout change, e.g switch text and image placements)
• Change images (with minor layout change, e.g switch text and image placements)
• Add forms (e.g consultation forms/contact forms/subscription forms)
• Personalisation (e.g pop ups)
• Extra Pages

Shop Related:

• Add products
• Create coupon codes
• Change prices
• Other product edits
• Edit Shipping costs
• Layout changes:
• add extra sections in one page
• add more than one row in one page
• add an extra slider(s)
• change sections placements

Fees for Additional Content/Change Request Days:

As per above, 2 hours of change requests and technical support is included in your agreement. Additional hours are billed as per the table below. We will document the hours spent on this account and can advise if and when you would be required to purchase an additional day. Additional hours and days can be purchased as per the rates above. Days or remaining hours cannot be carried over at the end of each month.

Resolution Times

Digital Salon will always endeavour to resolve issues as swiftly as possible as it recognises that the Client’s website is key to its business. It will also provide frequent progress reports to the Client should the likely resolution not be clear upon the first communication as per the Response Times section above.

Response Times

Development, Releases and Testing

Releases

When a significant release of new functionality is planned, Digital Salon shall notify the Client 24 hours ahead of the anticipated roll-out, making available a summary of intended changes to the system. This shall also include notice of any known impacts or risks to the live system. Once deployed, within 4 hours Digital Salon shall confirm to the Client that the release is considered live and complete. Should any issues arise upon release that require the code to be reverted,

Digital Salon shall notify the Client.

As Digital Salon follows an agile development process, “Minor releases” are performed regularly. These are typically small changes to layout/labelling of the site, or releases deployed in response to issues recognised on the live system. In the case of the former, notification of up to 2 hours may be given via email or phone, depending on the origin of the request. In the case of issues impacting the live system, the response issued per the Response Times section is

considered to be notification that a change is intended to be deployed as soon as possible.

Development Procedures

Development changes and updates shall be defined, documented, understood & agreed prior to development. Development changes and updates shall be signed off by both parties.

Testing

Digital Salon shall test all functionality internally prior to releasing it to live. Where necessary, Client sign-off on the test phase may be sought via the staging environment before proceeding to the release stage. The Client shall be notified of any known impacts or risks within the release notification.

Payment

Payment of the ongoing monthly fee is invoiced in advance and it is due upon receipt of the invoice at the beginning of each calendar month. If you have gone about the allocated hours included in your support agreement, or have used up any additional hours or days you have purchased, we will let you know in advance of working on any support, content changes or projects.

New Features/Projects

New features and projects are charged on a per man/day basis. These fees are different to the support and content change fees and are set out in the table below.

Examples of new features or projects would include but are not limited to:

• Building new landing pages
• Adding new features or functionality
• IGOR list out some examples of bespoke work here

Bespoke Development

All development work must be scoped, estimated and agreed with the client before it starts.

Fees and Bundles

Our daily rate for all bespoke work is €650 per man day (ex VAT). A “man day” is one person’s working time for an 8 hour day, Monday to Friday.

We offer the ability to purchase daily bundles in advance at a preferential rate. These days can be applied to any future work that is required to be carried out.

Rates Cost (ex-VAT)

For any new features or bespoke development of the websites, we will meet with you to understand the project. From this we will ‘spec’ out the project and give you a quote, the time it will take to complete and a start date. Invoicing for this work will be based on the above rates.

Reporting

In the event of a support issue arising which requires additional billable time above the included support time, where practicable Digital Salon shall notify the Client in advance and agree an estimate. In the event of a critical issue arising, Digital Salon may be required to take immediate action to address the situation (example cases include critical security patches or P1 incidents after the allocated man days have elapsed). In these cases, Digital Salon shall notify the Client that this work is being performed as soon as is possible.

Dispute Process

• If the two parties cannot agree on an aspect of this contract or the provision of the support service, either party may notify the other party that it considers the matter a dispute.
• The parties shall have three working days to resolve the dispute, unless both parties mutually agree to extend the dispute resolution time.
• During the dispute resolution period, both parties agree to work in good faith to seek a fair resolution
• After three working days an agreed independent person can be appointed to mediate.

Any costs of the agreed independent person shall be shared equally by the two parties, unless the independent person determines that one party behaved maliciously or not in good faith.

Termination

Either party can terminate this agreement with a termination notice in writing within 30 days’ notice of the intended Termination Date. If the website is to be migrated to another provider, Digital Salon shall work in good faith to facilitate the migration at agreed rates.

In the event of a contract breach on the part of Digital Salon, the monthly flat rate fee for the month in question shall be waived. In the event of a breach on the part of the Client, full payment for billable work to date shall be made.

We reserve the right to study the new versions of Flair.ie and Accademia.ie when they are finished to make amends to our contract if necessary.

Confidentiality

Digital Salon will not, save as authorised in writing by the Client, disclose, publish or otherwise reveal to any person, persons or companies any of the information, software (including object code and source code), results, trade secrets, secret or confidential operations, processes, information or dealings of any kind arising from the performance of Services hereunder or relating to the Client or its business, finances, transactions or affairs which may come to its knowledge during the term of this Agreement (“Confidential Information”).

Digital Salon will keep with complete secrecy for disclosure only to the Client all Confidential Information entrusted to or howsoever obtained by it and will not use or attempt to use any such information in any manner which may injure or cause loss either directly or indirectly to the client. This restriction will continue to apply after the termination of this Agreement without limit in point of time but shall cease to apply to information or knowledge which may reasonably be

said to have come within the public domain without a breach of confidentiality.

Designated Contact

It is requested that there is one designated point of contact within Xpert for all website issues. This person will be responsible for submitting content or technical support tickets, and will be our point of contact for progress updates.

Summary: Contracted Services Per month: (ex VAT)

1. Support hours & Change Request Hours: Up to 2 hours Included
2. Development Days: Quoted On Request

Total Monthly Cost (ex-VAT): €55 + VAT

Total Monthly fee: €67.65

Normal Terms and Conditions for Web Development Work

The following terms and conditions apply to all web development / internet services offered by Digital Salon. By ordering services from Digital Salon, you are agreeing to the following terms and conditions.

DEFINITIONS:

The Client: The company or individual requesting the services of Digital Salon. Digital Salon: Primary designer/site owner & employees or affiliates.

GENERAL

Digital Salon will carry out work only where an agreement is provided either by email, telephone or mail. Digital Salon will carry out work only for clients who are 18 years of age or above. An ‘order’ is deemed to be a written or verbal contract between Digital Salon and the client, this includes telephone, text and email agreements.

Typical Timeline:

Typical timeline depends on content & sign off on core design.

Week 1 – 2: Kick off call, Design Brief & Design Concepts & Mock up for your sign approval and sign off

Week 2 – 3: Content sent to Digital Salon

Week 4 – 6: Development of Project

Week 7 : Go Live

Timeline can be shorter depending on how quickly designs are signed off and how quickly we receive the content required.

Website Packages. The Client understands that any request for features outside of what the agreed package includes will be billed at the per hour or day rate as per the table below

Fee Breakdown;

WEBSITE DESIGN, DEVELOPMENT AND HOSTING

Whilst every endeavor will be made to ensure that the website and any scripts or programs are free of errors, Digital Salon cannot accept responsibility for any losses incurred due to malfunction, the website or any part of it. The website, domain names, graphics and any programming code remain the property of Digital Salon until all outstanding accounts are paid in full and cleared in our company bank account.

Any scripts, cgi applications, php scripts, or software (unless specifically agreed) written by Digital Salon remain the copyright of Digital Salon and may only be commercially reproduced or resold with the permission of Digital Salon. Digital Salon cannot take responsibility for any copyright infringements caused by materials submitted by the client. We reserve the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.

Any additions to the brief will be carried out at the discretion of Digital Salon and where no charge is made by Digital Salon for such additions, Digital Salon accepts no responsibility to ensure such additions are error free and reserve the right to charge an according amount for any correction to these or further additions.

The client agrees to make available as soon as is reasonably possible to Digital Salon all materials required completing the site to the agreed standard and within the set deadline. Information or content required for the website will be provided in a timely manner. The client understands that failure to do so could mean the company will move onto work on other clients websites, and could cause considerable delays to the project, which will still be billed as per the clause below.

The Client understands that the website build will not start until Digital Salon have confirmation of the design agreed and all content required to build the website. The client understands that if they change their mind after the website has been built and want another design, this will be billed as a new project.

• Digital Salon will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
• Digital Salon will not be liable or become involved in any disputes between the site owner and their clients and cannot be held
  responsible for any wrongdoing on the part of a site owner
• Digital Salon will not be liable for any costs incurred, compensation or loss of earnings due to the work carried out on behalf of the client or any of the clients appointed agents.
• Digital Salon will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.

Payment Terms:

• A part payment of 50% is required with any project before any design work will be carried out. This figure may be higher for new businesses. The remaining balance is due as follows:

• 20% 2 weeks after agreement,
• 20% 4 weeks after agreement,
• 10% upon Go Live or 7 weeks after the Agreement Signed date, whichever is sooner.

Payments are taken automatically from the clients bank account using GoCardless.

There are no exceptions to this, i.e If the client decides they no longer require the site, as they have commissioned the work and paid a part payment they are still obliged to pay for the work that has been done. Non payment will result in legal action being taken if necessary. Digital Salon’s name must be included in the footer at all times whether it’s hosted on our server or the client’s server.

HOSTING, DATABASE, APPLICATION AND ECOMMERCE DEVELOPMENT
Digital Salon cannot take responsibility for any losses incurred by the use of any software created for the client. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client in ensuring that all software is functioning correctly before use.
All codes developed will be the sole ownership of client, where they are not open source and created specifically for the client.

The client is expected to test fully any application or programming relating to a site developed by Digital Salon before being made generally available for use. Where “bugs”, errors or other issues are found after the site is live, Digital Salon will endeavor (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief

Compatibility

Digital Salon will endeavor to ensure that any developed/designed site or application will function correctly on the server it is initially installed in and that it will function correctly when viewed with the web browsing software. Digital Salon can offer no guarantees of correct function with all browser software.

Website Hosting

Digital Salon offers website hosting. Please see terms and conditions in the Website Management Agreement.

Website Support & Management

Digital Salon offers website hosting. Please see terms and conditions in the Website Management Agreement.

PAYMENT OF ACCOUNTS

A part payment is required from any new client before any work is carried out. It is Digital Salons policy that any outstanding accounts for work carried out by Digital Salon or its affiliates are required to be paid in full when the website is completed and launched, If payment is not received by go live date, the site will be taken down. 30 days from this date the website will be deleted without further notice from our servers unless by prior arrangement with Digital Salon. Other additional fees such as stock photo costs, plug in fees or SSL certs, must also be paid before the website goes live. Any annual or monthly direct debits with 3rd party providers will be set up using the clients card, with prior agreement first.

Once a part payment is paid and work completed you are obliged to pay the balance of payment in above notes. We will contact clients via email and telephone to remind them of such payments if they are not received when due.

If accounts are not settled or Digital Salon have not been contacted regarding the delay, access to the related website may be denied and web pages removed, we will then pass such cases to the Small Claims Court to pursue payment, non payment can result in county court judgements (ccj’s) being added to the clients credit rating.

Following consistent non payment of an invoice our Solicitors will contact the client in question with a view to taking the matter further and, if need be, to seek payment through legal procedures including, if necessary, court summons.

INDEMNIFICATION

Client agrees to use all Digital Salons’ services and facilities at their own risk and agree to defend, indemnify, save and hold Developer harmless from any and all demands, liabilities, costs, losses and claims including but not limited to attorney’s fees against Digital Salon or it’s associates that may arise directly or indirectly from any service provided or agreed to be provided or any product or service sold by the Client or its third parties. Client agrees this indemnification extends to all aspects of the project, including but not limited to web site content and choice of domain name.

Client also agrees to defend, indemnify and hold harmless Digital Salon against any liabilities arising out of injury to person or property caused by any service provided or agreed to be provided or any product or service sold by the Client or third parties, including but not limited to, infringement of copyright, infringement of proprietary rights, misinformation, delivery of defective products or services which is harmful to any person, business, company or organisation.

LIMITATION OF LIABILITY

1.1 Nothing in this Agreement:

1.1.1 shall limit or exclude the Client or Digital Salons’ liability for:

(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;

(b) fraud or fraudulent misrepresentation;

(c) any other liability which cannot be limited or excluded by applicable law;

1.2 Subject to clause 1.1:

• 1.2.1  neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including
  negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in
  connection with this Agreement;
• 1.2.2  Digital Salons’ total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty,
  or otherwise, arising under or in connection with this Agreement shall be limited to 50% of the total Charges
  paid by Client under this Agreement;
• 1.2.3  the Customer’s total liability to the Supplier, whether in contract, tort (including negligence), breach of
  statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to 80% of the total Charges paid by the client under this Agreement.

NONDISCLOSURE

Digital Salon and any third party associates agrees that, except if directed by the Client, it will not at any time during or after the term of this agreement disclose any confidential information. Likewise, the Client agrees that it will not convey any confidential information about Digital Salon to another party.

PRIVACY POLICY

Digital Salon and any third party associates shall use information provided by the client in relation to this agreement in accordance with the EU General Data Protection Regulation (EU) 2018/1725 (“GDPR”) and national laws implementing GDPR and any legislation that replaces it in whole or in part and any other legislation relating to the protection of personal data. All your personal data shall be processed lawfully, fairly and in a transparent manner for the following purposes: 1) to identify the client in communications with them and 2) to contact the client from time to time to offer products or services which may be of interest to, or benefit the client. ‘Personal Data’ means any information relating to an identifiable natural person (‘data subject;)

Marketing Agreement

This Agreement for marketing services is between Digital Salon “service provider”), and you, the client, (“Client”), and covers the performance of Digital Marketing, Social Media Management and or SEO services. The parties therefore agree as follows:

Basic Terms and Conditions 1. DEFINITIONS

As used herein and throughout this Agreement:

1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document, Schedule A, together with any exhibits, schedules or attachments hereto.

1.2 Partner Content means all materials, information, photography, writings and other creative content provided by customer for use in the preparation of and/or incorporation in the Deliverables.

1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Irish & UK Copyright Law.

1.4 Deliverables means the services and work product specified in the Proposal to be delivered by service provider to customer, in the form and media specified in the Proposal.

1.5 Service Provider Tools Service Provider Tools means all design tools developed and/or utilized by service provider in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.6 Final Work means all creative content developed or created by service provider, or commissioned by service provider, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Partner Content, and Service Provicer’s selection, arrangement and coordination of such elements together with Partner Content and/or Third Party Materials.

1.7 Final Deliverables means the final versions of Deliverables provided by Service Provider and accepted by Partner.

1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Service Provider and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.

1.9 Project means the scope and purpose of the Partner’s identified usage of the work product as described in the Proposal.

1.10 Services means all services and the work product to be provided to Client by Service Provider as described and otherwise further defined in the Proposal.

1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

2. PROPOSAL

The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

3. FEES AND CHARGES

3.1 Fees. In consideration of the Services to be performed by Service Provider, Client shall pay to Service Provider fees in the amounts and according to the payment schedule set forth in the Proposal.

3.2 Additional Costs. The Project pricing includes Service Provider’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, stock photography and/or artwork licenses, prototype production costs, talent fees, music licenses, fonts, and online access or hosting fees, will be billed to Partner unless specifically otherwise provided for in the Proposal.

3.3 Future Projects. Future Projects will be quoted separately from this agreement.

3.4 Payment Schedule and Payment Method. For the services rendered by Service Provider as required for this agreement, the Client will provide compensation, due upon monthly renewal date in the manner stipulated by :

1. A set up fee is due upon the signing of the agreement as set out in the agreement
2. A monthly fee is due upon the first ads going live and then monthly on this date for the term of this agreement

Payment Method: Payment shall be made through the payment link made available by the Third Party (GoCardless) platform.

Term:

The minimum term of this agreement is 6 months and will be renewed monthly for a period of 1 month there after. Ie A rolling monthly agreement.

1 months notice is required to terminate this agreement

4. CHANGES

4.1 Timing. Service Provider will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or by approving via email (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Service Provider. The Service Provider shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Service Provider’s ability to meet any and all schedules is based, in part upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Service Provider’s obligations under this Agreement.

4.2 Testing and Acceptance. Service Provider will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Service Provider, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Service Provider will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

5. PARTNER RESPONSIBILITIES

Partner acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

(a) coordination of any decision-making with parties other than the Service Provider;

(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and

(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

(d) at their discretion, the registration of any and all Copyrights and Trademarks in connection with the Final Work.

6. ACCREDITATION/PROMOTIONS

Service Provider retains the right to reproduce, publish and display the Deliverables in Service Provider’s portfolios and websites and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

7. CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority.

Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

8. RELATIONSHIP OF THE PARTIES

8.2 Service Provider Agents. Service Provider shall be permitted to engage and/or use other third party Agencies or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Service

Provider shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

8.3 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Partner is free to engage others to perform services of the same or similar nature to those provided by Service Provider, and Service Provider shall be entitled to offer and provide design services to others, solicit other Clients and otherwise advertise the services offered by Service Provider.

9. WARRANTIES AND REPRESENTATIONS

9.1 By Client. Client represents, warrants and covenants to Agency that

(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,

(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,

(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and

(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

9.2 By Service Provider

(a) Service Provider hereby represents, warrants and covenants to Client that Service Provider will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Service Provider further represents, warrants and covenants to Partner that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Service Provider and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Service Provider, Service Provider shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Service Provider to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Service Provider’s knowledge, the Final Deliverables provided by Service Provider and Service Provider’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Service Provider shall be void.

(c) Except for the express representations and warranties stated in this agreement, Service Provider makes no warranties whatsoever. Service Provider explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of

merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.

10. INDEMNIFICATION/LIABILITY

10.1 Indemnification. Client agrees to indemnify, save, and hold harmless Service Provider specifically from any claims arising from the inability to reach desired fundraising expectations. Service Provider is not responsible for the success of any current or any future fundraising rounds. In addition, Client agrees to indemnify, save, and hold harmless Service Provider from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Service Provider agrees to indemnify, save, and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Service Provider’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Service Provider shall promptly notify Client in writing of any claim or suit;

(a) Client has sole control of the defense and all related settlement negotiations; and

(b) Service Provider provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Service Provider in providing such assistance.

10.2 Limitation of Liability. The services and the work product of Agency are sold “as is.” In all circumstances, the maximum liability of Service Provider, its directors, officers, employees, design agents and affiliates (“Agency Parties”), to Client for damages for any and all causes whatsoever excepting Indemnification claims, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to €5,000.00. In no event shall Service Provider be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Service Provider, even if Service Provider has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

11. TERM AND TERMINATION

11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered. A minimum term of 6 months applies after which the term is rolling monthly.

11.2 This Agreement may be terminated at any time by either party effective with 1 months notice, or the mutual agreement of the parties, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or

(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.

11.3 In the event of termination, Service Provider shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Service Provider or Service Provider’s agents as of the date of termination, whichever is greater; and Client shall pay all reasonable and documented expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation. Service Provider shall not provide refunds for prepaid fees.

11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Service Provider grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

12. GENERAL

12.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Service Provider’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.

12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

12.4 Force Majeure. Service Provider shall not be deemed in breach of this Agreement if Service Provider is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Service Provider or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Service Provider’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Service Provider shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

12.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of New York without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of New York. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Service Provider will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Service Provider shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A and Schedule B below.

By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

Schedule A: Intellectual Property Provisions 1. RIGHTS IN THE FINAL DELIVERABLES

1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, Service Provider hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works.

Service Provider shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment, and Client shall reimburse Service Provider for Service Provider’s reasonable time and out-of-pocket expenses in connection therewith.

2. RIGHTS TO DELIVERABLES OTHER THAN FINAL DELIVERABLES

2.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Service Provider a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Service Provider’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Service Provider shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Deliverables. Under such circumstances Service Provider shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Service Provider from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Deliverables.

2.3 Preliminary Works. As between the parties, Service Provider or its Third Party retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in

and to all Preliminary Works and Working Files, and Partner shall return to Service Provider all Preliminary Works and Working Files in Partner’s possession within thirty (30) days of completion of the Services.

2.4 Original Artwork. Service Provider retains all right and title in and to any original artwork, including all rights to display or sell such artwork. Client shall return all original artwork to Service Provider within 30 days of completion of the Services.

2.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Service Provider assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Service Provider for use by Client as a Trademark. Service Provider shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Service Provider from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.

1.6 Service Provider Tools. Service Provider Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by Service Provider. Service Provider hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Service Provider’s Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Service Provider Tools comprising any software or technology of the Service Provider.

3. ADDITIONAL WARRANTIES AND REPRESENTATIONS

3.1 Deficiencies. Subject to the representations and warranties of Client in connection with Client Content, Service Provider represents and warrants that the Final Deliverables will be free from Deficiencies. For the purposes of this Agreement, “Deficiency” shall mean a failure to comply with the specifications set forth in the Proposal in any material respect, but shall not include any problems caused by Client Content, modifications, alterations or changes made to Final Deliverables by Client or any third party after delivery by Service Provider, or the interaction of Final Deliverables with third party applications such as Web browsers other than those specified in the Proposal. The parties acknowledge that Client’s sole remedy and Service

Provider’s sole liability for a breach of this Section is the obligation of Service Provider to correct any Deficiency identified within 30 days of receipt of Final Deliverables. In the event that a Deficiency is caused by Third Party Materials provided or specified by Service Provider, Service Provider’s sole obligation shall be to substitute alternative Third Party Materials.

3.2 Service Provider Tools. Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Service Provider represents and warrants that, to the best of Service Provider’s knowledge, the Service Provider Tools do not knowingly infringe the rights of any third party, and use of same in connection with the Project will not knowingly violate the rights of any third parties except to the extent that such violations are caused by Client Content, or the modification of, or use of the Deliverables in combination with materials or equipment outside the scope of the applicable specifications, by Client or third parties.

4. COMPLIANCE WITH LAWS

Service Provider shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed instrument, effective as of the date and year first written above.

Shortcuts Salon Software Terms and Conditions

1. Subscription Services

Supplier will make available to Customer (on a non-exclusive basis) the Subscription  Services indicated in the Order Form (the “Services”). Customer agrees that its  purchase of a subscription to the Subscription Services is neither contingent upon the  delivery of any future functionality or features nor dependent upon any oral or written  public comments made by Supplier regarding future functionality or features.

2. Restrictions

Customer will use the Subscription Services only for its own, internal business purposes.  Customer will not: resell, copy, frame or mirror any part or content of the Subscription  Services; make the Subscription Services available for timesharing or service bureau  purposes; or otherwise provide access to the Subscription Services to any third party,  except as such third party access is expressly agreed to between the parties in theOrder  Form. Customer will not, subject to any non-waivable rights Customer may enjoy under  applicable law, directly or indirectly: reverse engineer, decompile, disassemble or  otherwise attempt to discover the source code or underlying structure, ideas, know-how  or algorithms relevant to the Subscription Services or any software, documentation or  data related to the Subscription Services; interfere with or disrupt the integrity or  performance of the Subscription Services or third party data contained therein; attempt  to gain unauthorized access to the Subscription Services or its related systems or  networks; modify, translate, or create derivative works based on the Subscription  Services; or remove any proprietary notices or labels. Customer further agrees to those  further restrictions, if any, on Customer’s access to or use of the Subscription Services  which are indicated in the Order Form.

3. Technical Support

Supplier will provide Customer with reasonable technical support services (“Technical  Support”) in accordance with Supplier’sstandard practiceduring the hourssetouton the  Order Form. Outside of regular office hours, non-emergency support will be charged to  Customer at Supplier’s then-current rates and any additional terms and conditions set  forth in the Order Form. Customer acknowledges and agrees that Technical Support is  intended to address specific problems experienced by Customer relating to the  Subscription Services, and is not intended to train Customer’s employees or to support  third party products(“Other Assistance”). Supplier will adviseCustomer during a support  session if Supplier considerssuch request to constituteOther Assistance. Following such  notice, if Customer wishes for the support session to continue, Customer will pay for  such Other Assistance based on Supplier’s then-current rates. Should the problem  reported by Customer to Supplier be the result of hardwaremalfunction (notrelating to  Supported Hardware where such service is specified on the Order Form) or other causes  external to the Subscription Services, Supplier will advise Customer to have the  hardware/network repaired. Support resulting from hardware/network problems and/or  issues associated with third party products or services will be billed to Customer at  Supplier’s then-current hourly rates.

4. Interfaces

Interfaces to third party vendor systems may be available, as indicated in the  documentation associated with the Subscription Services. To the extent such third party  vendor system interfaces are available, Supplier shall install or make available the  interfaces as agreed between the parties on the Order Form. Customer shall act as a  liaison between Supplier and any third party vendor(s) with which the Subscription  Services shall interface. Customer shall have its third party vendor available at the time  that Supplier is scheduled to connect the interface and in order to assist with such  connection, as required by Supplier. Transactions processed by a third party vendor  system may be subject to separate licensing requirements. Customer acknowledges and  agrees that it has the sole obligation to obtain, or cause its third party vendor to obtain,  any and all such licenses.

5. Custom Development and Enhancement Requests

This Agreement does not include any programming services for custom development or  modifications. Such work, if negotiated and agreed to between Supplier and Customer,  shall be the subject of a separate agreement for development services between them as such, Supplier shall have complete control of the design and development of the  Subscription Services, including with respect to any enhancements and modifications.  Therefore, Supplier has the right, and sole discretion, to reject any request for  enhancement or modification to the Subscription Services by Customer.

6. Products

Supplier agrees to resell to Customer the hardware and/or third party software items  (collectively, “Products”), if any, indicated in the Order Form subject to the terms and  conditions of this Agreement. All Products will be shipped F.O.B. origin. Customer shall  be responsible for all delivery costs. Payment by Customer of delivery costs shall be due  and payable upon its receipt of Supplier’sinvoice.

7. Professional Services

Supplier will provide Customer with the Professional Services, if any, set forth in the  Order Form(s) (“Professional Services”). Such Professional Services shall be scheduled as  mutually agreed upon subject to Supplier’s availability following receipt by Supplier of  the signed Agreement and any related deposit. Should Customer require rescheduling of  confirmed Consulting Service dates, Supplier will make commercially reasonable efforts  to accommodate Customer’s request and provide Customer with the next available dates  based on Supplier’s then-current availability. Customer shall be responsible for paying for  any Professional Services that have been scheduled and confirmed between Customer  and Supplier if canceled or rescheduled by Customer less than thirty (30) days prior to  the commencement of such Professional Services, unless (and only to the extent that)  Supplier is able to reschedule the resource with another customer using commercially  reasonable efforts.

8. Payment Terms

Customer agrees to pay the fees set out in the Order Form(s). All fees are payable in  accordance with the terms set out in, and in the currency specified in,theOrder Form(s).  Customer will also pay for Professional Services at Supplier’sthen prevailing rates, unless  otherwise indicated on the Order Form. For Professional Services provided on-site at  Customer’s site or another Customer designated location, Customer will also be  responsible for including travel, meals, accommodation and related expenses incurred by  Supplier’s employees or agents. Unless otherwise indicated on the invoice, all invoices  are due upon receipt. Fees stated in the Order Form are exclusive of Taxes (as defined in  Section 9).Other than as provided for pursuant to Section 16 (Indemnification), Supplier  does not provide credits or refunds for fees already due or paid. If Customer wishes to  decrease its use of the Subscription Services after the (to the extentservice capacity or  usage is limited pursuant to the Order Form(s)), Customer may do so after the Initial  Term provided that Customer notifies Supplier thirty (30) days in advance. If Customer  wishes to increase its use of the Subscription Services (to the extentservice capacity or  usage is limited pursuant to the Order Form(s)), Customer must notify Supplier in  advance and pay any applicable fees. Customer acknowledges that We may vary the  amount of fees payable by You under the Contract from time to time to reflect changes  in Our prevailing recommended retail prices, upon giving thirty days’ notice to You.

Any invoice disputes must be initiated by Customer in good faith and in writing;  Customer will be entitled to notify Supplier of any invoice dispute by the due date of the  applicable invoice, after which time the invoice shall be deemed to be accepted by  Customer and will be due and payable. If Customer initiates a dispute with regard to a  particular invoice, any undisputed amounts charged on such invoice will continue to be

due and payable. Supplier and Customer agree to use reasonable efforts to address and  attempt to resolve any invoice dispute within thirty (30) days after Supplier’s receipt of  Customer’s notice to Supplier regarding such dispute. With regard to any undisputed  invoiced amount that is not paid when due, Supplier reserves the right to charge, and  Customer agrees to pay, a late payment fee on the unpaid balance from the due date  until paid (whether before or after judgment) equal to one percent (1%) per month. If it  is determined that Supplier properly charged any amount disputed and withheld by  Customer, the late fee will be assessed and paid on the disputed, withheld amount.

Except for a good faith dispute as outlined above, should Customer fail to make any  payment hereunder when due, Supplier reserves the right to suspend or interrupt the provision of Customer’s access to the Subscription Services (and all related services  provided hereunder) until such non-payment is remedied, provided that Supplier  provides Customer with five (5) days advance notice (including via email notification or  that fees remain outstanding. In such event, Suppliershallnot be  precluded from exercising any additional remedies that  might be available to it under the terms of this Agreement or otherwise.

9. Taxes

Customer is responsible for paying all taxes, levies, duties or similar governmental  assessments of any nature, including, for example, value-added,sales, use or withholding  taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated with  Customer’s purchases hereunder. For clarity, Supplier is solely responsible for taxes  assessable based on Supplier’s income, property and employees. If Supplier has a legal  obligation to pay or collect Taxes for which Customer is responsible under this  Agreement, the appropriate amount shall be computed based on Customer’s address  listed in the Order Form and invoiced to and paid by Customer, unless Customer provides  Supplier with a valid tax exemption certificate authorized by the applicable competent  authority in the relevant jurisdiction (orsuch other form of confirmation supplied for the  same purpose) at least five (5) business days prior to the due date of the applicable  Supplier invoice. All fees are payable in full and without reduction or withholding for  Taxes. If, for whatever reason, Customer is required by law to withhold any Taxes from  fees payable hereunder, Customer shall gross up its payments to Supplier so that  Supplier receives the fees in full and free of any such deductions. Customershall, upon  request of Supplier, provide to Supplier proof that Taxes have been paid, if such payment  is not made to Supplier directly. If Supplier pays any costs or expenses incurred in  relation to any import duties, customs, formalities, permissions or other requirements,  then Customer shall promptly reimburse Supplier for all such amounts in full.

10. Third Party Components

In order to properly utilize the Subscription Services, Customer agrees it may require use  of certain third party components, which if any shall be listed in the Order Form (“Third  Party Components”). Customer acknowledgesthat Supplier will have no responsibility for  the implementation or operation of such Third Party Components.

11. Ownership

Customer shall own all right, title and interest in and to any data, including digital files  and unstructured content objects, entered or submitted by Customer by means of the  Subscription Services (the “Customer Data”). At all times Supplierwillown all intellectual  property rights (including copyright) in and to (i) the Subscription Services; (ii) any  software (other than any Third Party Components) to which access may be provided by  means of the Subscription Services; (iii) all upgrades, enhancements andmodificationsto  the Subscription Services and (iv) any software, applications, inventions or other  technology developed in connection with the Subscription Services.

12. Customer Input

Supplier shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable,  perpetual license to use or incorporate into the Subscription Services any suggestions,  enhancementrequests,recommendations or other feedback provided by Customer, its  employees, contractors and agents relating to the operation or functionality of the  Subscription Services (collectively, “Customer Input”). Suppliershall have no obligation  to incorporate Customer Input into the Subscription Services. Customer shall have no  obligation to provide Customer Input.

13. Use of Logo for Promotional and MarketingMaterials

Unless indicated otherwise in the applicable Order Form, Customer provides Supplier  with permission to use its trademark, logo and trade name(“Branding”)within Supplier’s  promotional and marketing materials. Supplier is granted no otherrightto the Branding  and acknowledges that itshall not gain any proprietary interest in the same. Supplier is  under no obligation to make use of, or to provide compensation for, the right or  permission granted by Customer to the Branding. Suppliershall be the exclusive owner  of all right, title, and interest, including copyright in its promotional and marketing  materials. The permission to use the Branding may be terminated at any time by  Customer by providing thirty (30) days’ written notice to Supplier. Upon such termination, Supplier shall refrain from future use of the Branding; however, Supplier  may continue to distribute and use the promotional and marketing materials where  Customer’s Branding has been previously printed prior to the notice of termination and  where such placements cannot be discontinued or alteredwithout Supplierincurring any

losses.

14. Confidentiality

(a) Definition of Confidential Information. “Confidential Information” means all  information disclosed by a party (“Disclosing Party”) to the other party (“Receiving  Party”), whether orally or in writing, that is designated as confidential or that  reasonably should be understood to be confidential given the nature of the  information and the circumstances of disclosure. Customer’s Confidential  Information includes Customer Data; Supplier’s Confidential Information includes  the Subscription Services and information regarding features, functionality and  performance of the Subscription Services; and Confidential Information of each  party includes the terms and conditions of this Agreement and all Order Forms  (including pricing), as well as business and marketing plans, technology and  technical information, product plans and designs, and business processes disclosed  by such party. However, Confidential Information does not include any information  that (i) is or becomes generally known to the public withoutbreach of any obligation  owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its  disclosure by the Disclosing Party without breach of any obligation owed to the  Disclosing Party, (iii) is received from a third party without breach of any obligation  owed to theDisclosing Party, or(iv) was independently developed by the Receiving  Party.

(b) Protection of Confidential Information. The Receiving Party willuse the same degree  of care that it usesto protectthe confidentiality of its own confidential information  of like kind (but not less than reasonable care) and shall: (i) not use any Confidential  Information of the Disclosing Party for any purpose outside the scope of this  Agreement; and (ii) except as otherwise authorized by the Disclosing Party in  writing, limit access to Confidential Information of the Disclosing Party to those of  its and its affiliates’ employees and contractors who need that accessfor purposes  consistent with this Agreement and who have signed confidentiality agreements  with the Receiving Party containing protections no lessstringentthan those herein.  Neither party will disclose the terms of this Agreement or any Order Form to any  third party otherthan its affiliates, legal counsel and accountants withouttheother  party’s prior written consent, provided that a party that makes any such disclosure  to its affiliate, legal counsel or accountants will remain responsible for such  affiliate’s, legal counsel’s or accountant’s compliance with this Section14(b).

(c) Compelled Disclosure. The Receiving Party may disclose Confidential Informationof  theDisclosing Party to the extent compelled by law to do so, provided the Receiving  Party gives the Disclosing Party prior notice of the compelled disclosure (to the  extent legally permitted) and reasonable assistance, attheDisclosing Party’s cost, if  the Disclosing Party wishes to contest the disclosure. If the Receiving Party is  compelled by law to disclose theDisclosing Party’s Confidential Information as part  of a civil proceeding to which theDisclosing Party is a party, and theDisclosing Party  is not contesting the disclosure, the Disclosing Party will reimburse the Receiving  Party for its reasonable cost of compiling and providing secure access to that  Confidential Information.

15. Data

(a) Customer will have sole and exclusive responsibility for the accuracy, quality,  integrity, legality, reliability, and appropriateness of all Customer Data. Customer  will not send or store infringing, obscene, threatening, libelous or otherwise  unlawful or tortious material, includingmaterial that is harmful to children, violates  third party privacy or intellectual property rights, includes malicious code, or that  will interfere with the integrity of the SubscriptionServices.

(b) Each party agrees that, in the performance of its respective obligations under this  Agreement, itshall comply with the provisions of applicable data protection law to  the extent it appliesto each ofthem. The parties further agree that Customer is the  data controller in respect of any personal data that Supplier processesin thecourse  of providing services for Customer. Accordingly, Supplier agrees that it shall:

(i) only process Customer’s personal data in order to provide the Subscription  Services orin accordance with any lawful instructions reasonably given by Customer from time to time; (ii) implement appropriate technical and organizational measures  to protect personal data against unauthorized or unlawful processing and accidental  destruction or loss; (iii) include in any contract with any subcontractors who shall  process personal data provisions which are equivalent to those in this Section 15;

(iv) take reasonable steps to ensure the reliability of its employees who have access  to the personal data; and (v) as soon as reasonably practicable refer to Customer  any requests, notices or other communication from data subjects, data protection  or other law enforcement authority, for Customer to resolve.

(c) Where Customer is subject to EUdata protection laws, Customer acknowledges and  agrees that Supplier may transfer data personal data which it processes on  Customer’s behalf to countries outside the European Economic Area in order to  provide the Subscription Services and carry out Supplier’s other obligations under  this Agreement.

(d) Supplier shall notify Customer as soon as possible upon discovery of any data  security incident impacting Customer Data. Suppliershall not beresponsiblefor any  loss or damage to Customer Data to the extent thatsuch loss or damagewas caused  by Customer or a third party (other than a subcontractor ofSupplier).

(e) Customer grantsto Supplier a royalty-free, non-transferable, non-exclusive license  for the term of this Agreement to use Customer Data to the extent necessary to  perform the Subscription Services. Notwithstanding anything to the contrary,  Supplier shall have the right to collect and analyze data and other information  relating to the provision, use and performance of various aspects ofthe Subscription  Services and related systems and technologies (including, without limitation,  information concerning Customer Data and data derived therefrom), and Supplier  will be free (during and after the term hereof) to (i) use such information and data  to improve and enhance the Subscription Services and for other development,  diagnostic and corrective purposesin connection with the SubscriptionServices and  other Supplier offerings, and (ii) disclose such data solely in aggregate or other de identified form in connection with its business.

16. Indemnification:

(a) Intellectual Property InfringementIndemnification in Favour of Customer. Supplier  will hold harmless, defend, and indemnify Customer and its officers, directors,  employees, agents, successors and permitted assigns from and against any and all  costs, damages and expenses arising out of any claimbrought againstCustomer by a  third party based on the claim that the Subscription Services, or Customer’s use of  the Subscription Servicesinfringes or misappropriates any United States, Canadian,  United Kingdom, European Union, Australian or New Zealand patent, copyright,  trade secret, or trademark of that third party, provided that Customer (i) notifies  Supplier in writing no later than thirty (30) days after Customer’s receipt of  notification of potential claims; (ii) allows Supplier to assume sole control of the  defense of such claim and all related settlement negotiations and (iii) provides  Supplier, at Supplier’s sole cost and expense, with all reasonable assistance,  information and authority necessary to perform Supplier’s obligations under this  Section. Supplier will not be liable for any infringement or claim based upon any  modification of the Subscription Services developed by Customer, or use of the  Subscription Services in combination with softwareor othertechnology notsupplied  or approved in advance by Supplier, or use of the Subscription Services contrary to  this Agreement or the documentation related to the Subscription Services, including  operator and user manuals. If the Subscription Services are held by a court of  competent jurisdiction to infringe, Supplier, at its own expense,shall (a) replace or  modify the Subscription Services to be non-infringing; (b) obtain for Customer a  right to continue using the Subscription Services; or (c) if neither (a) nor (b) is  feasible, terminate the Agreement and refund a portion of the subscription feepaid  by Customer for the Subscription Services for which Customer has not yet enjoyed  use of the Subscription Services, including fees or costs associated with custom  development and services paid for but not yet delivered. THE FOREGOING STATES  SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY AND THE SOLE ANDEXCLUSIVE REMEDY  OF CUSTOMER INDEMNIFIED PARTIES WITH RESPECT TO ANY CLAIM OF  INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR  PROPRIETARY RIGHTS OF ANY THIRDPARTY.

(b) Customer’s Indemnity. Customer agrees to indemnify, hold harmless and defend  Supplier, its affiliates and any of their respective officers, directors, employees,  agents, successors and permitted assigns from and against all costs, damages and

expenses arising out of or on account of any violation of Section 2 (Restrictions) or  Section 15(a) (Customer Data) by Customer.

17. Warranty & Warranty Disclaimer:

(a) Subscription Services – Limited Warranty. Supplier warrants that the Subscription  Services will conform in all material respects to the documentation provided by  Supplierin relation to the Subscription Services. As Customer’ssole remedy for any  breach of this warranty, if Customer brings to Supplier’s notice any incidence of  non-conformance, Supplier will use reasonable efforts to correct the error.  Supplier’smaintenance hoursforreceiving any suchcalls are setin theOrder Form.

(b) Service Level Guarantee. If the Subscription Services are unavailable to Customerfor  more than five percent(5%), orsuch other figure specified in theOrder Form,ofthe  scheduled uptime for any month (exclusive of scheduled maintenance time or any  downtime attributable to third parties or Customer, or for which Supplier is not  responsible (including, but not limited to interruptions and delays inherent in  Internet communications), then Supplier will credit Customer with a proportionate  share of the Service fees for such month on Customer’s next required payment to  Supplier (for example, if the Subscription Services are unavailable for six percent  (6%) of the month, then the credit will be equal to six percent (6%) of the fees in  respect of that month). In order to receive downtime credit, Customer must notify  Supplier in writing within forty eight (48) hours from the time of downtime, and  failure to provide such notice will forfeit the right to receive downtime credit. Such  credits may not be redeemed for cash and shall not be cumulative beyond a totalof  credits for one (1) week of Service fees in any one (1) calendar month in any event.  Supplier will only apply a credit to the month in which the incident occurred.  Supplier’s blocking of data communications or other Service in accordance with its  policies shall not be deemed to be a failure of Company to provide adequateservice  levels under this Agreement.

(c) Internet. Supplier will use commercially reasonable efforts to ensure that the web  pages generated with the Subscription Services will be served (i.e. delivered from  Supplier’s internal network or that of its Internet service provider) promptly  regardless of the level of traffic to Supplier’s servers, subject to outages,  communication and data flow failures, interruptions and delaysinherentin Internet  communications. Customer acknowledges that problems with the Internet,  equipment, software and network failures, impairments or congestion, or the  configuration of Customer’s computer systems, may prevent, interrupt or delay  Customer’s access to the Subscription Services or data stored within the  Subscription Services. Supplier is not liable for any delays, interruptions,  suspensions or unavailability of the Subscription Services or the data stored within  the Subscription Services, attributable to problems with the Internet or the  configuration of Customer’s computersystems.

(d) System Requirements. Customer acknowledges that the Subscription Services are  intended to perform with, and Supplier provides the Subscription Services based  upon, the system requirements specified in the Order Form or additional  documentation made available by Supplier to Customer, as those may be updated  by Supplier fromtime to time. Supplier has no liability for failure of the Subscription  Services based upon Customer’sfailure to comply with such system requirements.

(e) Products. Supplier represents that it has the authority of each producer and/or  manufacturer of Products which are subject to this Agreement to sell the same to  Customer. Customer acknowledges that Supplier makes no warranties, conditions,  representations or guarantees, express or implied, concerning Products. Supplierin  so far asit is possible hereby assignsto Customer the producer’s or manufacturer’s  warranty(s), if any, applicable to the Products. To the extent permitted by law,  Supplier makes no representations regarding the validity or enforceability of any  such producer’s or manufacturer’s warranty and Customer understandsthatitssole  remedy for any breach of warranty is such as may exist against the producer or  manufacturer under the producer’s or manufacturer’s warranty.

(f) Warranty Limitation. The conditions and warranties set forth in this Agreement do  not apply to the extent that non-compliance is caused by, or has resulted from, (i)  Customer’s use of the Subscription Services other than as authorized in this  Agreement; (ii) use ofthe Subscription Services in combinationwith othersoftware,  data or products that are defective, incompatible with, or not authorized in writing  by Supplier for use with the Subscription Services; (iii) any malfunction of  Customer’s hardware, computers, computer-related equipment or network  connections; and (iv) any modification of the Subscription Services not performed  by Supplier or otherwise authorized by Supplier in writing.

(g) Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 17 AND TO  THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION  SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, ARE  PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUPPLIER DISCLAIMS ALL OTHER  WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR  IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF  MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR APARTICULAR PURPOSE  OR THE USE OF REASONABLE SKILL AND CARE.WITHOUT LIMITING THE GENERALITY  OF THE FOREGOING, SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES,  REPRESENTATIONS, GUARANTEES OR CONDITIONS OF MERCHANTABILITY, FITNESS  FOR A PARTICULAR PURPOSE, THE USE OF REASONABLE SKILL AND CARE, NON INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROROR  THAT THE SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IFANY, ANDTHE  PRODUCTS, IF ANY, WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. SUPPLIER  MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES  OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR  SERVICES PROVIDED IN CONNECTION WITH THE SUBSCRIPTION SERVICES.  SUPPLIER’S LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE WHICH HAS  BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONEOTHER THAN SUPPLIER  OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW  THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES,  REPRESENTATIONS, GUARANTEES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY  NOT APPLY TO CUSTOMER. IN THAT EVENT, SUCH WARRANTIES,  REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO  THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE.

Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or  any guarantee, representation, warranty, condition or other term, implied or  imposed by any applicable law which cannot lawfully be excluded or limited. This  may include any consumer law which contains guarantees that protect the  purchasers of goods and services in certain circumstances. If any guarantee,  representation, warranty, condition or other term is implied orimposedconcerning  this Agreement under any consumer lawor any other applicable law and cannot be  excluded (a “Non-Excludable Provision”), and Supplier is able to limit Customer’s  remedy for a breach of the Non-Excludable Provision, then the liability of Supplier  for breach of the Non-Excludable Provision is limited to one or more of the  following, at Supplier’s option: (a) in the case of goods, the replacement of the  goods or the supply of equivalent goods, the repair of the goods, the payment of  the cost ofreplacing the goods or of acquiring equivalent goods, or the payment of  the cost of having the goodsrepaired; or(b) in the case ofservices, the supplying of  the Subscription Services again, or the payment of the cost of having the  Subscription Servicessupplied again. Customermay makesuch a guarantee claimby  contacting the Licensor at the contact details set forth in the OrderForm.

The parties agree that it is Customer’s responsibility to determine whether the  Subscription Services are suitable for Customer’s requirements. No other terms,  conditions, representations, warranties or guarantees, whether written or oral,  express or implied, will form a part of this Agreement or have any legal effect  whatsoever.

18. Limitation of Liability:

EXCEPT FOR LIABILITY ARISING (I) FROM CUSTOMER’S BREACH OF SECTION 2 (RESTRICTIONS), (II) UNDER SECTION 16 (INDEMNIFICATION) OR (III) FOR PERSONAL  INJURY OR DEATH CAUSED BY NEGLIGENCE, (IV) FRAUD OR FRAUDULENT  MISREPRESENTATION:

(A) TO THE FULL EXTENT PERMITTED BY LAW, SUPPLIER’S ENTIRE LIABILITY UNDER THIS  AGREEMENT OR IN ANY WAY RELATED TO THE SUBSCRIPTION SERVICES, THE  PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF ANY, OR ANY RELATED ITEMS  WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY  CUSTOMER TO SUPPLIER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12)  MONTHPERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TOTHE CLAIM;  AND

(B) NEITHER PARTY WILL BE LIABLE FOR:

(I) ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES  ARISING FROM OR RELATED TO THIS AGREEMENT OR IN ANY WAY RELATED TO THE  SUBSCRIPTION SERVICES, THE PROFESSIONAL SERVICES, IF ANY, AND THE PRODUCTS, IF  ANY, OR ANY RELATED ITEMS; OR

(II) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA,OR DATAUSE (INCLUDINGAS  A RESULT OF A VIRUS), BUSINESS INTERRUPTION, FAILURE TO REALIZE AN EXPECTED  SAVING, CORRUPTION OF DATA, OR CLAIMS AGAINST THEM BY ANY THIRD PARTY,

EVEN IF THE PARTIES ARE ADVISED, OR MAY REASONABLY SUPPOSED TO HAVE BEEN  AWARE, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

SUCH LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, WHETHER  ARISING BASED ON CONTRACT, TORT, NEGLIGENCE,OROTHERWISE AND WILL APPLY TO  ALL ORDER FORMS, SCHEDULES, ADDENDA, AGREEMENTS AND ATTACHMENTS RELATED  TO THIS AGREEMENT.

THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN SUPPLIER  AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE  PARTIES. SUPPLIER’S PRICING REFLECTS THIS ALLOCATIONOF RISK AND THE LIMITATION  OF LIABILITY SPECIFIED HEREIN.

19. Term and Termination 

(a) Term of Agreement. This Agreement commences on the Effective Date or on the  date that access to the Subscription Services is made available to Customer,  whichever is sooner, and continues until all subscriptions hereunder have expired or  have been terminated.

(b) Term of Purchased Subscriptions. The term of each subscriptionshall be asspecified  in the applicable Order Form. Except as otherwise specified in an Order Form,  subscriptions will automatically renew for additional periods equal to the expiring  subscription term or one (1) year (whichever is shorter), unless either party gives  the other notice of non-renewal at least sixty (60) days before the end of the  relevant subscription term.

(c) Termination by Customer. Customer has the right to terminate this Agreement if  Supplier is in default of any term or condition herein, and fails to cure such default  within thirty (30) days after receipt of written notice of such default or if Supplier  becomesinsolvent or any proceedings are to be commenced by or against Supplier  under any bankruptcy, insolvency or similar laws.

(d) Termination by Supplier. Subjectto Section 19(e) (Failure to Pay Fees), Supplier has  the right to terminate this Agreement if Customer is in default of any term or  condition of this Agreement, and fails to cure such default within thirty (30) days  after receipt of written notice ofsuch default. Without limitation, itwill be deemed  a Customer default underthis Agreement if Customerfails to pay any amountwhen  due hereunder. Supplier may terminate this Agreementimmediately if: (i) Customer  breaches Section 2 (Restrictions) ) or Section 15(a) (CustomerData); or(ii)Customer  becomesinsolvent, a receiver, administrator, controller or a liquidator is appointed  to Customer, Customer assigns any of its property for the benefit of creditors or any  class of them or any proceedings have been commenced by or against Customer  under any bankruptcy, insolvency or similar laws.

(e) Failure to Pay Fees. In the eventthat Customer fails to pay the applicable feeswhen  due, Supplier reserves the right to elect to take one of the following courses of  action (without limiting Supplier’s other available remedies): (i) notify Customerthat  this Agreement will immediately expire (or has expired) effective as of the  expiration of the then-current period; or (ii) allow this Agreement to renew for  another renewal period, in which event,the applicable feesforsuch renewalperiod  will continue to be payable; provided, however, that if Supplier does not  affirmatively notify Customer that alternative (i) or (ii) has been selected, then  alternative (ii) will apply.

(f) Early Termination. Customer understands that Supplier has undertaken significant  implementation and investment costs which are intended to be amortizedover any  initial term indicated on the Order Form (“Initial Term”). In consideration of the  costs and the pricing structure acknowledged and accepted in the Order Form,  Customer agrees to pay liquidated damages if Customer elects early termination  during such Initial Term (other than pursuant to Section 19(c)). The liquidated  damages forsuch early termination will be the value of the fees for the remainder of the Initial Term, along with any outstanding fees for additional modules and  services ordered but not yet paid for by Customersince the date of this Agreement.  These liquidated damages are due and payable in a lump sum on the date of  termination of the Agreement. Customer acknowledges that the actual damages  likely to result from a breach of the Initial Term by Customer are difficult to  ascertain and that the foregoing liquidated damages are intended to represent  estimated actual damages and are not intended as a penalty.

(g) Data Portability and Deletion. Upon request by Customer made within thirty (30)  days after the effective date of termination or expiration of this Agreement,  Supplier will make the Customer Data available to Customerfor export or download.  After such thirty (30) day period, Customer acknowledges that Supplier will have no  obligation to maintain or provide Customer Data.

(h) Surviving Provisions. Following the termination of this Agreement, the Sections  titled “Payment Terms,” “Taxes,” “Ownership,” Customer Input,” “Confidentiality,”  “Data,” “Indemnification,” “Warranties & Warranty Disclaimer,” “Limitation of  Liability,” “Term and Termination,” “Assignment,” “Dispute Resolution,” “Governing  Law” and “General Provisions” will continue in full force and effect in accordance  with their terms.

20. Assignment 

22.2

2

Neither party may assign any of its rights or obligations hereunder,whether by operation  .

of law or otherwise, without the other party’s prior written consent (not to be  unreasonably withheld); provided, however, either party may assign this Agreement in  its entirety (including allschedules andOrder Forms), without the other party’s consent  in connection with a merger, acquisition, corporate reorganization, or sale of all or  substantially all of its assets. In the case of Customer, the following requirements shall  exist: (i) Customer must be current with any and all payment due to Supplier hereunder  and (ii) Customershall execute and cause its permitted assignee to execute assignment  documents in a form provided by or acceptable to Supplier and (iii) Customer must  provide all original agreements and Order forms to assignee. Notwithstanding the  foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes  change of control in favor of, a direct competitor of the other party, then such other  party may terminate this Agreement upon written notice. Any purported assignment in  violation of this section shall be void and of no effect. Any permitted assignee shall  assume all assigned obligations of its assignor under theAgreement.

21. Governing Law 

The law that will apply to any question of interpretation regarding this Agreement, any  question of the existence of this Agreement, or a lawsuit arising out of or in connection  with this Agreement, and which courts have jurisdiction over any such lawsuit, depend  on the country of incorporation, or organization, as applicable, of Customer, and will be  determined as follows:

Each party agrees to the applicable governing law above, without regard to choice or  conflicts of law rules, and to the jurisdiction of the applicable courts above. The parties  exclude the operation of the United Nations Convention on Contracts of the  International Sale of Goods.

Dispute Resolution 

Upon any dispute, controversy or claim between the parties, each of the parties will  designate a representative fromseniormanagement to attemptto resolvesuch dispute.  The designated representatives will negotiate in good faith in an effort to resolve the  dispute over a period of thirty (30) days. If the dispute is not resolved in this thirty (30)  day period, a party may submit the dispute to binding arbitration. Customershallselect  an arbitrator from a list of three (3) arbitrators to be provided by Supplier to Customer,  each of which shall be skilled in the legal and business aspects of the software industry.  The parties agree thatthe arbitrator’s fee shall be split equally between the parties and  that each party shall be responsible for its costs, legal and otherwise, in relation to the  arbitration, unlessthe arbitrator decidesthatthe circumstancesjustify an awardof costs.  The arbitration shall be conducted in the English language and shall take place in  accordance with arbitration rules and in the location set forth in the below chart,  depending on thecountry ofincorporation, or organization, as applicable, ofCustomer:

The foregoing provision shall not limit the ability of a party to seek injunctive relief.

23. General Provisions: 

TERMS AND CONDITIONS 

(a) Export Compliance: The Subscription Services and derivatives thereof may be  subjectto export laws and regulations. Each party representsthatitis not namedon  any U.S. government denied-party list. Customer shall not permit access or use of  the Subscription Services in a U.S.-embargoed country (currently Crimea-Region of  Ukraine, Cuba, Iran, North Korea, Sudan, and Syria), EU-embargoed country, and  United Nations-embargoed country or in violation of any other applicableembargo,  export law or regulation.

(b) Anti-Corruption: Customer has notreceived or been offered any illegal orimproper  bribe, kickback, payment, gift, or thing of value from any of Supplier’s employees or  agents in connection with this Agreement. Reasonable gifts and entertainment  provided in the ordinary course of business do not violate the above restriction. If  Customer learns of any violation of the above restriction, Customer will use  reasonable efforts to promptly notify Supplier.

(c) Modifications: This Agreement may not be modified except in writing signed by  both parties.

(d) Subcontractors: Supplier reserves the right to make use of subcontractors to  provide services and to use such means as Supplier, in itssole discretion, considers  appropriate. Supplier’s use of subcontractors shall not relieve it of its obligations  under this Agreement.

(e) Independent Contractor: The relationship of the parties established by this  Agreement is that of independent contractors. This Agreement does not establish  an agency, joint venture or partnership relationship between Supplier and  Customer. Supplier and its personnel, agents, Suppliers, and Supplier’s authorized  representatives, are acting as independent contractors and not as employees or  agents of Customer. Nothing in this Agreement will be construed to permit either  party to bind the other or to enter into obligations on behalf of the other party.

(f) Non-Solicitation: During the Termof this Agreement and for a periodof one (1) year  following the termination ofthis Agreement, each party hereto agrees notto solicit,  recruit or employ any employee of the other party withoutthe priorwrittenconsent  of the Chief Executive Officer, Presidentor Director ofthe other party. For purposes  of this section, the terms “employee,” shall include any person with such status at  any time during the six (6) months preceding any solicitation in question. For the  avoidance of doubt, the foregoing restriction shall not apply to the following forms  of solicitation (and resulting employment): (i) a party using general bona fide  solicitations directed at the public or industry participation in general in publications  or internet resources not specifically targeted at employees of the other party, or  employing any person who responds to such solicitations; (ii) using search firms, or  hiring any persons solicited by such search firms, so long as such firms are not  advised by a party to solicit employees of the other party; or (iii) soliciting any  person who has left the employment of the other party prior to the date of this  Agreement.

(g) Force Majeure. Neither party shall be in breach of this Agreement nor liable for  delay in performing, or failure to perform, any of its obligations under this  Agreement if such delay or failure result from events, circumstances or causes  beyond its reasonable control provided that the party affected by such failure or  delay gives the other party prompt written notice of the cause and uses  commercially reasonable effortsto correctsuch failure or delay within a reasonable  period of time.

(h) Severability: If any provision contained herein or part thereof is determined to be  void or unenforceable in whole or in part by a court of competent jurisdiction,such  invalid provision or part thereofshall be deemed not to affect or impair the validity  or enforceability of any other provision or part thereof contained herein, all of  which remaining provisions or parts thereof shall be and remain in full force and  effect.

(i) Headings: The headings and subheadings contained herein are inserted for  convenience of reference only and shall in no way be construed to be  interpretations of terms.

(j) Notices: All notices under this Agreementshall be in writing and shall be deemedto  have been given upon: (i) personal delivery; (ii) the third business day after being  sent by pre-paid recorded post; or (iii) the second business day after sending by  facsimile with telephonic confirmation ofreceipt.NoticestoSuppliershallbesentto

the address shown in the introductory paragraph of this Agreement addressed to  Supplier’s signatory of this Agreement. Notices to Customer shall be sent to the  address shown in the introductory paragraph of this Agreement addressed to  Customer’s signatory of this Agreement. Each party may modify its recipient of  notices by providing notice pursuant to this Agreement.

(k) Waiver: No delay by either party in enforcing any of the terms or conditions of this  Agreement will affect or restrict such party’s rights and powers arising under this  Agreement. No waiver of any term or condition of this Agreement will be effective  unless made in writing. The waiver by any party of a breach of this Agreement does  not constitute a waiver of a repeat of the same breach or of other breach of rights  or obligations under this Agreement.

(l) Third party rights: A person who is not a party to this Agreementshall not have any  rights to enforce any term of this Agreement.

(m) Entire Agreement: This Agreement constitutes the entire Agreement between the  parties with respect to the subject matter of this Agreement and supersedes all  proposals, oral and written, and all previous negotiations and communications  between the parties and theirrepresentatives with respectto the subjectmatterof  this Agreement. Each party acknowledges that, in entering into this Agreement, it  does not rely on any statement, representation, assurance or warranty (whetherit  was made negligently or innocently) of any person (whether a party to this  Agreement or not) other than as expressly set out in this Agreement.

Digital Salon reserve the right to update these terms and conditions for any product at any time.

(n) Counterparts: : This Agreement may be executed in two ormorecounterparts, each  of which together shall be deemed an original, but all of which together shall  constitute one and the same instrument. In the event that any signatureis delivered  by facsimile transmission or by e-mail delivery of a Portable Document Format  (PDF), such signature shall create a valid and binding obligation of the party  executing (or on whose behalfsuch signature is executed) with the same force and  effect as if such facsimile or “.pdf” signature page were an original thereof.