Terms of Use & Conditions This InfoGrow Corporation Terms of Use & Conditions (“Terms”) collectively, are effective as of the START DATE, (“Effective Date”), as appears on the SUBSCRIPTION ORDER FROM (Order Form), by and between InfoGrow Corporation (“InfoGrow”) with its principal place of business at 2140 Front Street, Cuyahoga Falls, OH 44221("InfoGrow") and SUBSCRIBER, ("Subscriber") with its principal place of business as the address appears on the Order From.. InfoGrow and Subscriber are sometimes referred to in these Terms as the “Parties” and individually as a “Party.” Recitals Whereas InfoGrow provides certain internet mapping and location services, using Microsoft Platform, to customers on a subscription basis, including but not limited to “CRM Call Planner”, “CRM Market Planner”, “CRM Service Planner”, Find the Nearest”, Zip Select & Search”, “Address Search”, “Product/Service Directory”, “Proximity Analyzer”, “Custom/Business Rule Search”, “and other such applications that return interactive maps displaying locations of interests, Subscriber locations and certain tabular information about such locations ( the “Locator Services”); Whereas InfoGrow also offers optional add on services, including but not limited to “Geocoder”, Driving Directions”, which offers the ability to return driving directions from the input address to the selected locations in both text and map formats; “Sales Territories”, and “Geographical Boundaries” as “Additional Locator Services” defined as applied in the Order Form; Whereas both Locator Services and Additional Locator Services (collectively referred to as the “Service”) may include Operational Software installed on a Subscriber server, and/or are offered on an InfoGrow operated web server or a Microsoft hosted Service, or other service provider’s servers, accessible to users of Subscriber; Whereas Subscriber wishes to subscribe to various Service and InfoGrow is willing and able to provide such Service on the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged, the Parties agree as follows: 1. Definitions In addition to the terms defined elsewhere in this Agreement, the following terms when used herein, shall have the following meanings: 1.1 “Subscriber Applications” means collectively those Subscriber applications and services identified in the Order Form. 1.2 “End Users” means persons who receive InfoGrow provided Web Content for their own use and not for resale or re-transmission. 1.3 “Web Content” means the content such as maps, driving directions, points-of-interest, and other location content derived from use of the Services. 1.4 “Microsoft Platform” means Microsoft Bing Maps Platform and or any Microsoft web mapping service successor. 2. Service 2.1 General. InfoGrow shall provide the Service, subject to Subscriber’s compliance with these Terms of Use & Conditions and those of Microsoft at https://www.microsoft.com/en-us/servicesagreement/default.aspx 2.2 The Service is provided to Subscriber on a non-exclusive and non-transferable basis, with no rights of license or rights of resale or retransmission. 2.3 Use of Service. Subscriber may only i) integrate the Service via the Subscriber Applications identified in Order Form, and ii) provide the Web Content to End Users. If Subscriber desires to provide the Service via other Subscriber applications (including new or materially updated versions of the Subscriber Applications), the Parties shall in good faith negotiate an amendment to the Proposal Acceptance to include such other Subscriber applications. Such amendment may include additional fees to be paid by Subscriber. 2.4 Proprietary Notices. Subscriber acknowledges and agrees that the Web Content may contain proprietary notices and logos of InfoGrow and logos of Microsoft and/or its suppliers, and agrees not to remove, modify (including adding to), minimize, obscure or block such notices or logos. 2.5 Privacy. Subscriber’s use of the Service will be subject to the data practices set forth in the Microsoft Bing Maps Platform Privacy Statement at https://privacy.microsoft.com/en-us/privacystatement/ 2.6 Logos. Neither Party will use any logo or trademark of the other Party in any manner or for any purpose without the other Party’s prior written approval. 2.7 General Restrictions. Subscriber shall not use the Services: (a) in connection with the transmission, sale, license or delivery of any infringing, defamatory, offensive, or illegal products or services or materials; (b) to copy, store, archive, and create a database of the Service generated content, except that geocodes may be stored locally when used in conjunction with the Subscriber Applications; (c) in violation of local, state, Federal or equivalent privacy or other laws or regulations; (d) to create routes by optimizing the other waypoints for multiple vehicles at the same time (e) to deliver individual maneuvers of a calculated route such that the maneuvers are presented to the end-user, or the end-user is alerted to the maneuvers, in any manner synchronized with the end-user’s sensor-based position along such route, including, for example, calculating the end-user’s position as the end-user traverses the route and communicating a maneuver to the end-user as the end-user approaches the location pertaining to such maneuver; or (f) in any manner that threatens the integrity, performance, or availability of the Service or the Microsoft Platform. 2.8 Service Update. InfoGrow and/or Microsoft Platform may, in its sole discretion make feature or functionality updates to the Service. InfoGrow will provide advance notice of such Service updates and, will make commercially reasonable efforts to identify Service updates that may require modifications to Subscriber Applications. 3. Intellectual Property 3.1 InfoGrow. All title and intellectual property rights in and to the Service (including but not limited to the content, application programming interfaces, maps, directions, and any images, photographs, animations, video, audio, music, text, and “applets,” if any) are owned or licensed by InfoGrow and/or its suppliers. This Agreement grants Subscriber no rights to any such intellectual property rights except for the limited rights expressly granted herein. Subscriber will not reverse engineer, decompile, or disassemble the Service, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. All rights not specifically granted under this Agreement are reserved by InfoGrow and its suppliers. ​ 3.2 Subscriber. Subscriber shall retain sole title and ownership to all data that it provides under this Agreement. 4. Term and Termination 4.1 Term. This Agreement shall become effective on the Effective Date as appears on the Order Form and will continue in full force and effect for the “Initial Term”. 4.2 Renewal. Following the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (“Renewal Term(s)”) unless either party provides written notice to the other Party, at least sixty (60) days prior to the end of the Initial Term or Renewal Term, as applicable, of its intent to terminate the Agreement. InfoGrow shall have the right to revise the pricing stated in this Agreement for any Renewal Term provided InfoGrow notifies Subscriber at least thirty (30) days’ prior to the to the sixty day notice period stated herein. 4.3 Termination. This Agreement may be terminated or suspended immediately upon notice (a) by either Party if the other Party is in material breach of Section 2 or Section 6 of this Agreement; or (b) by either Party if the other Party is in breach of any material terms of this Agreement and fails to cure such breach within thirty (30) calendar days after written notice thereof. Upon termination or expiration of this Agreement, (a) all rights granted to Subscriber hereunder shall automatically terminate and Subscriber shall cease to use all intellectual property of InfoGrow and/or its suppliers, (b) Subscriber shall pay any outstanding amounts owing to InfoGrow within thirty (30) calendar days of receipt of the final invoice. Unless InfoGrow materially breaches the terms of this Agreement and Subscriber terminates the Agreement under this Section 4.2, there shall be no refund of fees to Subscriber upon termination of this Agreement. Sections 1, 3, 4.2, 4.3, 6, 7, 8, 9, and 10 shall survive the termination or expiration of this Agreement for any reason. 4.4 Remedies. Subscriber acknowledges that monetary damages may not be a sufficient remedy for breaches of these Terms and Conditions and that InfoGrow shall be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach. 5. Fees and Payment 5.1 Usage Fee. A monthly per user fee payable in advance of usage. 5.2 Late Payment Fee. Any payment received by InfoGrow later than thirty (30) days from the invoice date shall be subject to immediate service suspension, and a finance charge at the rate of 2% per month of the past-due balances, not to exceed the maximum rate allowed by law. 5.3 Taxes. Subscriber shall be responsible for the payment of any of the taxes that it is legally obligated to pay or which InfoGrow is permitted to collect from Subscriber, including taxes related to any orders for the Service. If any taxes are required to be withheld. Subscriber may deduct such taxes from the amount owed and pay them to the appropriate taxing authority; provided however, that Subscriber promptly secures and deliver to InfoGrow an official receipt for those withholdings and other document necessary to enable InfoGrow to claim a foreign tax credit. 6. Confidentiality 6.1 “Confidential Information” means information marked or otherwise identified in writing by a party as proprietary or confidential or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential. It includes non-public information regarding either Party’s products, features, marketing and promotions, and the terms of the Order Form and these Terms. 6.2 “Confidential Information” does not include information that: (i) the recipient develops independently; (ii) the recipient know before receiving it; (iii) is or subsequently becomes publicly available or is received from another source, in both cases other than by breach of an obligation of confidentiality. 6.3 Neither Party will use the other’s Confidential Information without the other’s written consent except in furtherance of this business relationship or as expressly permitted by this Section 6, or disclose the other’s Confidential Information except (i) to obtain advice from legal or financial consultants, or (ii) if compelled by law, in which case the Party compelled to make the disclosure will use its commercially reasonable efforts to give the other Party notice of the requirement so that the disclosure can be contested. 6.4 Each Party will take reasonable precautions to safeguard each other’s Confidential Information. Such precautions will be at least as great as those a Party takes to protect its own Confidential Information. A Party will disclose the other’s Confidential Information to its employees or consultants only on a need-to-know basis and subject to the confidentiality obligations imposed here. When Confidential Information is no longer necessary to perform any obligation under the Service, the Party will return it to the other or destroy it at the other’s request. Each party will immediately notify the other upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate in any reasonable way to help the other regain possession of the confidential information and prevent further unauthorized use or disclosure. 6.5 Either Party may provide suggestions, comments or other feedback to the other with respect to the other’s products and services. Feedback is voluntary and the party receiving feedback may use it for any purpose without obligation of any kind except that the Party receiving feedback will not disclose the source of feedback without the consent of the Party providing it. 7. Warranty 7.1 Subscriber hereby represents and warrants as follows: 7.1.1 Subscriber is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof. 7.1.2 Subscriber is duly authorized to execute and deliver this Agreement and to perform its obligations here-under. 7.1.3 This Agreement is a legal and valid obligation binding upon it and enforceable according to its terms. The execution, delivery, and performance of this Agreement do not conflict with any agreement, instrument, or understanding, oral or written, to which Subscriber is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body, or administrative or other agency having jurisdiction over it. 7.1.4 Subscriber is the sole owner of, or otherwise has sufficient rights to the Subscriber Applications. The Subscriber Applications and or data are in compliance with all relevant laws and other requirements where they are offered or available. Further, Subscriber’s provision of the InfoGrow Service via Subscriber Applications shall be in compliance with all relevant laws and other requirements where they are offered or available. 7.2 InfoGrow hereby represents and warrants as follows: 7.2.1 InfoGrow is duly organized and validly existing under the laws of the State of Ohio and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof. 7.2.2 InfoGrow is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder. 7.2.3 This Agreement is a legal and valid obligation binding upon it and enforceable according to its terms. The execution, delivery, and performance of this Agreement does not conflict with any agreement, instrument, or understanding, oral or written, to which InfoGrow is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body, or administrative or other agency having jurisdiction over it. 7.2.4 InfoGrow has sufficient rights to the Service. The Service is in compliance with all relevant laws where the Service is offered or available. 7.2.5 InfoGrow agrees to use commercially reasonable efforts to provide the Service in substantial compliance with the terms Service Production Environment Service Level Commitments, and to correct any deficiencies that cause the InfoGrow Service to fail to substantially comply with said commitments. 8. Indemnification 8.1 InfoGrow. 8.1.1 InfoGrow agrees to defend, at its expense, Subscriber in a lawsuit or other judicial action, and pay the amount of any adverse final judgment (or settlement to which InfoGrow consents) from such lawsuit or judicial action, for any third party claim(s) that the InfoGrow Service infringes any copyright(s), trademark right(s), or patent(s) enforceable in the United States and Canada (individually and collectively, "Claim"). 8.1.2 With regard to any Claim, InfoGrow’s obligations are subject to the following conditions: (i) Subscriber must promptly notify InfoGrow in writing of the Claim; (ii) InfoGrow shall have sole control over defense and/or settlement of the Claim; (iii) Subscriber shall provide InfoGrow with reasonable assistance in the defense of the Claim; and (iv) InfoGrow's obligations to defend and pay a patent Claim shall be limited to patent Claims wherein the Service alone, without combination or modification, constitutes direct or contributory infringement of such patent Claim. 8.1.3 InfoGrow shall have no liability for any intellectual property infringement claim (including a Claim) based on (i) any unauthorized manufacture, use, sale, offer for sale, importation or other disposition or promotion of the Service or a trademark by Subscriber, or (ii) Subscriber's manufacture, use, sale, offer for sale, importation or other disposition or promotion of Service or a trademark more than thirty (30) days after InfoGrow's written notice of recommendation that Subscriber should cease manufacture, use, sale, offer for sale, importation or other disposition or promotion of the Service or a trademark due to such claim. Subscriber shall reimburse InfoGrow for any and all damages, costs, and expenses (including reasonable attorneys' fees) incurred resulting from Subscriber's continued distribution of the allegedly infringing Service or trademark after such thirty (30) day notice period. 8.1.4 In addition to the obligations set forth in Section 8.1.1 above, if InfoGrow receives information concerning a Claim, InfoGrow may, at its expense, but without obligation to do so, undertake further actions such as: (i) procuring for Subscriber such copyright, trademark or patent right(s) or license(s) as may be necessary to address the Claim, or (ii) replacing or modifying the Service or trademark to make it non-infringing. 8.2 Subscriber Indemnification. 8.2.1 InfoGrow may be requested by Subscriber to use or include certain materials or content, including copyrights and trademarks, furnished and provided by Subscriber hereunder. Subscriber agrees to indemnify and hold harmless InfoGrow for any claims, losses or damages (including reasonable attorney's fees and costs) from any third party claims that said Subscriber materials infringed upon the copyrights, trademarks, trade dress, publicity rights, privacy rights and other rights of others or are in violation of applicable law. 9. Limitation of Liabilities and Disclaimer 9.1 Limitation of Liabilities. SUBSCRIBER AGREES INFOGROW SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR PERSONAL OR CONFIDENTIAL INFORMATION, OR ANY OTHER PECUNIARY LOSS, DAMAGES FOR LOSS OF PRIVACY, OR FOR FAILURE TO MEET ANY DUTY, INCLUDING ANY DUTY OF GOOD FAITH, OR TO EXERCISE COMMERCIALLY REASONABLE CARE OR FOR NEGLIGENCE) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF INFOGROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SUBSCRIBER FURTHER AGREES THAT INFOGROW’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY AND ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER TO INFOGROW UNDER THIS AGREEMENT. 9.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE INFOGROW SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF REASONABLE CARE OR WORKMANLIKE EFFORT, OF LACK OF NEGLIGENCE, AND/OR OF A LACK OF VIRUSES, ALL WITH REGARD TO SERVICE, ARE EXPRESSLY EXCLUDED. INFOGROW MAKES NO WARRANTY THAT THE SERVICE WILL OPERATE PROPERLY AS INTEGRATED WITH THE SUBSCRIBER APPLICATIONS. ​ 10. General Terms 10.1 Non-Assignment. Neither Party may assign this Agreement, or any rights or obligations hereunder, whether by operation of contract, law or otherwise, except with the express written consent of the non-assigning Party which will not be unreasonably withheld or delayed, and any attempted assignment in violation of this section shall be void. For purposes of this Agreement, an “assignment” shall be deemed to include, without limitation, each of the following: (a) a change in beneficial ownership of a Party of greater than twenty percent (20%) (whether in a single transaction or series of transactions) if the Party is a partnership, trust, limited liability Subscriber or other like entity; (b) a merger of the Party with another party, whether or not the assigning Party is the surviving entity; (c) the acquisition of more than twenty percent (20%) of any class of a Party’s voting stock (or any class of non-voting security convertible into voting stock) by another party (whether in a single transaction or series of transactions); and (d) the sale or other transfer of more than fifty percent (50%) of a Party's assets (whether in a single transaction or series of transactions). In the event of such assignment or attempted assignment, the non-assigning Party shall have the right to immediately terminate this Agreement. 10.2 Governing Law / Jurisdiction. This Agreement shall be construed and controlled by the laws of the State of Ohio and Subscriber consents to exclusive jurisdiction and venue in the federal courts sitting in Summit County, Ohio. Subscriber waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either Party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, costs, and other expenses. 10.3 Force Majeure. InfoGrow or Subscriber shall not be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions or strikes. 10.4 Notices. All notices between the Parties shall be in writing and shall be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed as follows: To InfoGrow: InfoGrow Corporation 2140 Front Street Cuyahoga Falls, OH 44221 Fax: 330-929-1393 To Subscriber As contained in Order From, Or to such other addresses as the Party to receive the notice or request so designates by written notice to the other Party. 10.5 No Third Party Beneficiaries. The provisions of this Agreement are for the benefit of the Parties and not for any other person or entity. 10.6 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. The Parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. Accordingly, the Parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. 10.7 Section Headings. The section headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions. 10.8 Demonstrations. InfoGrow may showcase the publicly accessible implemented Subscriber Applications integrated with the Service to third parties. 10.9 Freedom of Action. Nothing in this Agreement shall be interpreted to prohibit or restrict either Party from entering into similar or the same arrangement with other parties. Further, nothing herein shall restrict InfoGrow with respect to the current or future development of the InfoGrow Service or any other product or service; InfoGrow reserves the right to change any plans it may have with respect to the Service and its other products and services. In addition, nothing herein shall restrict Subscriber with respect to the current or future development of Subscriber Applications or any other product or service; Subscriber reserves the right to change any plans it may have with respect to Subscriber Applications and its other products and services. Nothing in this Agreement shall be deemed to prohibit or restrict either Party from developing or distributing products or services that are similar to or compete with products or services of the other Party. The above notwithstanding, this section shall not give either Party any right to use the other Party’s Confidential Information or intellectual property except as otherwise authorized herein or in a separate agreement. 10.10 No Joint Venture. The Parties here-under are operating as independent contractors, and nothing in this Agreement shall be construed as creating a partnership, franchise, joint venture, employer-employee or agency relationship. 10.11 Marketing. During the term of this Agreement, either Party may publicly disclose that Subscriber is a customer of InfoGrow, in marketing materials and other customer presentations, subject to both Parties’ prior written approval with respect to materials or statements appearing or presented in any mass marketing or mass advertising medium, including but not limited to, press releases, materials appearing in newspapers, magazines, journals, and on web pages.