Zipari, Inc. Terms and Conditions to the Platform Subscription Services Agreement between Zipari, Inc. and Customer. Platform Subscription Services Terms and Conditions 1. DEFINITIONS 1.1. “Agreement” means Zipari’s Platform Subscription Services Agreement which incorporates these Terms and Conditions, and any additional or Customer Specific Terms attached thereto. 1.2. “Customer” means the entity identified as such in the Agreement. 1.3. “Member” means a person enrolled and effectuated in an insurance plan offered by the Customer. 1.4. “Broker” means a person designated by the Customer as a representative to sell the Customer’s products. 1.5. “User” means a person accessing the Zipari Website Components that is not yet an identified Member of the Customer. 1.6. “Broker Portal” means the means the components, user experience, business logic and data integration to allow Brokers to access broker information. Further definition is provided in Exhibit E. 1.7. “Customer Specific Terms” means terms, if any, specific to a given Customer that are incorporated into the Agreement. 1.8. “Zipari Website Components” means the components of the customer website provided by Zipari, where Members, Brokers and Users are accessing Online Shopping, Prescription Search, Provider Portal, Member Portal, and the Broker Portal. 1.9. “Applicable Laws” shall mean all laws, ordinances, codes, rules, regulations, policies, orders, conditions of approval and other requirements of any federal, state or local governmental or quasi-governmental entity, authority, agency or body having or asserting jurisdiction. 1.10. “Services” means the products and services, including, without limitation, the software application used to collect, aggregate, track, and analyze Data and generate Analyzed Data for Customers to access via the Zipari Platform. 1.11. “Data” means all information captured by the Product to understand customer behavior and usage of the Product. 1.12. “Anonymous Data” means all information captured by the Product that when viewed or analyzed does not provide any ability to determine the true identity of any Member or User. 1.13. “Analyzed Data” means the Data, once analyzed by the Services, together with any related visualizations, and alerts generated by the Services and made available to Customer via the Zipari Platform. 1.14. “Documentation” means any documentation made available to Customer by Zipari in connection with the Services or Zipari Platform. 1.15. “Effective Date” means the date set forth in the Agreement. 1.16. “Intellectual Property” means, with respect to each party, its patents, Marks, logos, copyrights, trade secrets, and any other intellectual property. 1.17. “Marks” means, with respect to each party, its trademarks, service marks, and taglines and associated logos. 1.18. “Subscription Period” means the period during which Services and Zipari Platform are provided, as stated in the Agreement. 1.19. “Subscription Start Date” means the date the Product is made available to the Customer for use on the Customer’s Zipari Website Components. 1.20. “Term” means the period starting on the Effective Date and ending upon the expiry, non-renewal or termination of this Agreement, whichever occurs first. 1.21. “Zipari Properties” means any and all websites and mobile sites owned or controlled by Zipari. 1.22. “Zipari API” means the Zipari application programming interface which enables Customer to download the Data or Analyzed Data. 1.23. “Product Licenses” means the number of Product licenses based on the maximum number of Members that the Customer had on the month prior to invoice. 1.24. “Security Incident” means any theft or loss of or unauthorized or unlawful disclosure, use, alteration, or destruction of, or unauthorized or unlawful access to Customer Data or any network, device, machine, site, or system that contains any Customer Data or any attempt, whether or not successful, of the same. 1.25. “Service Levels” means, for Services under any work order, all service levels described in the “Service Level Requirements” or “Service Levels” section thereof. 1.26. “Protected Health Information (PHI)” has the meaning given to it in the Business Associate Agreement (BAA). 1.27. “Force Majeure” means default for any delay or failure in performance under this Agreement deemed resulting, directly or indirectly, from Acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, failure of transportation, strikes or other work interruptions by any third party's employees, or any similar cause beyond the reasonable control of a party. 1.28. “Customer Data” means any PII, PHI, Customer’s Confidential Information, or any other information and data (including text, images, graphics, pictures, photos, videos, audio, and documents) or any other content provided by Customer to Zipari. 1.29. “Specifications” shall mean the features, functionalities, tasks, activities or other requirements of the Services, Zipari Platform or any other software or deliverable as provided in this Agreement, any statement of work, scope of work, Documentation or any other material delivered by either party pursuant to Services performed hereunder. 1.30. “Recovery Time Objectives” is the acceptable amount of downtime of services that the business can tolerate. 1.31. “Recovery Point Objectives” is the acceptable amount of data loss that the business area can tolerate losing. 2. SERVICES 2.1. Services. Zipari shall provide the following Services to Customer: (a) Zipari Website Components. The parties acknowledge and agree that Zipari will use commercially reasonable efforts to continually develop, deliver and provide ongoing innovation to the Services in the form of new features, functionality, bug fixes, defect resolutions, new capabilities and services and, accordingly, Zipari reserves the right to modify the Services from time to time in its sole discretion; provided that such modification to the Services or Zipari Platform does not materially adversely affect Customer’s rights under this Agreement or otherwise cause Zipari to be in breach of this Agreement. 2.2. Training. Training is provided at no additional charge by Zipari and will be provided in an appropriate amount reflecting the implementation of the Agreement. Training of Customer’s employees shall not exceed 40 hours of direct training over the Term. Zipari represents and warrants that the foregoing training shall be sufficient to allow Customer’s employees to successfully utilize the Services and Zipari Platform. 2.3. Support. Support shall be made available by Zipari via phone and email as further detailed in Exhibit B. Zipari shall appoint an account manager to support Customer. 2.4. Customer Obligations. Customer shall cooperate with Zipari to enable Zipari’s provision of the Services and Zipari Platform. On a regular basis, the Customer will update provider and facility information so that the Product provides accurate information. Customer is responsible for keeping such lists current and providing Zipari with updates. 2.5. License. Contingent on Customer compliance with the terms of the Agreement, Zipari hereby grants to Customer a limited, non-exclusive, and non-transferable, right to use the Services and Zipari Platform, in object code only, solely (i) for Customer’s own internal business purposes; (ii) to allow Customer’s Members, potential Members, Users and Brokers to access the Services during the Term; and (iii) subject to these Terms and Conditions and the Agreement. Contingent on Customer’s compliance with the terms of the Agreement, Zipari hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the Data or Analyzed Data solely for Customer’s own internal business purposes for the Term of this Agreement. Any and all rights not expressly granted to Customer are reserved by Zipari. 2.6. Restrictions. With respect to the Services, the Data, the Analyzed Data, the Zipari API and any other Zipari Intellectual Property (collectively the “Zipari IP”), Customer may not, directly or indirectly, except as expressly permitted by the Agreement or these Terms and Conditions: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Zipari IP in whole or in part; (ii) copy, modify or make derivative works based upon the Zipari IP in whole or in part; (iii) reverse engineer or otherwise decompile or disassemble the Zipari IP in whole or in part; (iv) interfere with or disrupt the integrity or performance of the Services or disobey any requirements, procedures, policies or regulations of Zipari with respect to its computer systems and networks; (v) attempt to gain unauthorized access to the Services or circumvent or modify any security mechanism employed by Zipari; (vi) use or publish Data, Analyzed Data or any data derived therefrom or otherwise use the Services or the Zipari API other than for lawful, internal, business purposes and as authorized under this Agreement; (vii) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the Zipari Services or collect information about users for any unauthorized purpose or create user accounts by automated means or under false or fraudulent pretenses; (viii) transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature or (ix) make use of the Zipari IP in whole or in part in any way to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; or (c) copy any of its ideas, features, functions, or graphics. Customer shall comply with all Applicable Laws and regulations concerning export, data privacy and protection and cooperate with Zipari in connection with compliance thereto. Zipari retains the right to terminate or suspend the Services or the Agreement immediately for any breach by Customer of this Section. 2.7. Acceptance. All deliverables regarding the Zipari Platform and any Services under any statement of work or scope of work will be subject to testing and review as deemed reasonably necessary by Customer to ensure compliance with any applicable Specifications (“Acceptance Testing”). Customer shall notify Zipari in writing of any faults or deficiencies which Customer believes need to be corrected in any deliverables regarding the Zipari Platform or any Services within thirty (30) business days of delivery of such deliverables or completion of the Services (the “Acceptance Testing Period”). When the faults or deficiencies are corrected, the provisions of this Section will again apply and Zipari will submit the deliverables or Services for a further round of Acceptance Testing. If Customer does not respond within the Acceptance Testing Period, then Customer will be deemed to have accepted the applicable deliverables or Services. When applicable, testing criteria and procedures required for Acceptance Testing will be jointly agreed to by Zipari and Customer. Notwithstanding any other provision herein, the Services and/or deliverables under any statement of work or scope of work shall be accepted only after Customer has had a reasonable opportunity to conduct a security review. 3. COMPLIANCE 3.1. HIPAA Compliance. Zipari acknowledges and agrees that it is a business associate of Customer under the Health Insurance Portability and Accountability Act and the regulations promulgated thereunder (“HIPAA”). The Parties have entered into the Business Associate Agreement (“BAA”) to ensure each Party’s compliance with HIPAA. In the event of any inconsistency between the terms of this Agreement and the terms of the BAA, the terms of the Business Associate Agreement shall govern. Zipari will provide all Zipari representatives with sufficient HIPAA privacy and security training to permit them to understand and comply with Zipari’s obligations pursuant to the BAA. Zipari will not permit any Zipari representative that has not successfully completed such training to access PHI under any circumstances. 3.2. Personal Information. Zipari acknowledges that for purposes of providing the Services to Customer, Zipari may receive access to Confidential Information (as defined in Section 6, below) regarding certain individuals, which may include, among other things, Personally Identifying Information or “PII” as that term is used by the Federal Trade Commission. Therefore, to the extent Zipari receives or obtains such access, Zipari shall, and shall cause all Zipari representatives to, comply with all Applicable Laws relating to the confidentiality of all such Confidential Information (all such Applicable Laws collectively referred to herein as “Privacy Laws”). 3.3. Security (A) General. At all times during the Term, Zipari will provide all Services and the Zipari Platform, and use all resources related thereto, in a secure manner and in accordance with (a) Applicable Laws, including those relating to PHI/medical records, PII, privacy, confidentiality and information security, and (b) Customer’s reasonable security requirements. Zipari will provide evidence reasonably satisfactory to allow Customer to confirm that Zipari has satisfied its obligations as required under this Section 3.3. Without limitation, this may include Customer’s review of audits, summaries, test results and other equivalent evaluations of Zipari. To the extent that any duties and responsibilities under this Agreement are delegated to an agent or contractor, Zipari shall ensure that such agents and contractors adhere to the same requirements and Zipari agrees to be fully responsible for any action or inaction by any agent or contractor that causes a Security Incident. (B) Minimum Security Standards. Zipari shall implement proper administrative, physical and technical safeguards to protect the Customer Data that are no less rigorous than accepted industry practices and shall ensure that all such safeguards, including the manner in which Customer Data is collected, accessed, transmitted, used, stored, processed, disposed of and disclosed, comply with Applicable Laws, as well as the terms and conditions of this Agreement. In no event will Zipari’s or any Zipari representative’s, contractor’s and agent’s actions or inaction result in any situation that is less secure than reasonable security consistent with Applicable Laws, including those relating to PHI/medical records, PII, privacy, confidentiality and information security. (C) Security Incidents. In the event Zipari becomes aware of any Security Incident, or any breach by Zipari or any Zipari representative, contractor or agent of Zipari’s security or confidentiality obligations under this Agreement, Zipari shall at its sole expense: (i) promptly notify Customer in writing, (ii) promptly perform all activities necessary to mitigate and remediate such Security Incident or breach, and (iii) provide Customer with all assistance necessary to enable Customer to address such Security Incident or breach at Customer’s sole option. Where such Security Incident is the direct result of Zipari’s, its Contractors’, or Agents’, acts or omissions or Zipari’s willful or intentional misconduct, Zipari agrees to provide, at its sole cost and expense, and at no charge to any affected persons appropriate credit monitoring services as determined by Customer for at least one (1) year. Zipari shall reimburse or otherwise indemnify Customer for any costs or expenses necessarily and reasonably incurred by Customer associated with the Security Incident, including but not limited to, the costs of investigations, retrieving, repossessing and recovering data and any legal proceedings against Customer or its employees, agents or contractors. 3.4. Anonymous Information. Zipari reserves the right to capture and store Anonymous Data associated with Customer behavior to enhance future versions of the Product. 3.5. Audit. During the Term, upon reasonable advance notice from Customer, but no more than once during any twelve (12) month period, Zipari shall provide Customer or its third party designees access to those facilities and records of Zipari (or its representatives, contractors or agents) that relate to the Services and Zipari Platform for the purpose of allowing, at Customer's expense, an audit or inspection of billing records, compliance with this Agreement and Applicable Laws. Any such inspection shall occur during normal business hours and shall not unreasonably interfere with Zipari’s (or its third party contractors) normal business operations. Zipari (or its representatives, contractors or agents) shall provide such auditors or inspectors assistance that such inspectors or auditors may reasonably require to carry out such inspection or audit. Zipari agrees to respond to reasonable requests for information and documentation. In the event that the inspection or audit identifies any: (i) deficiencies with respect to Zipari’s (or its representatives, contractors or agents) performance of the Services or provision of the Zipari Platform such that it shows Zipari has misrepresented its performance of the Services by more than 10% under the Service Levels set forth in Attachment 1A to this Agreement for the period being audited; or (ii) billing error in excess of 5% for the period being audited, Zipari shall pay for the costs of the inspection or audit. In all events, where the inspection or audit identifies deficiencies with respect to Zipari’s (or its representatives, contractors or agents) performance of the Services or provision of the Zipari Platform or billing errors, then Zipari, at its sole expense, shall take prompt corrective measures required to address such deficiencies and promptly correct any billing errors. 3.6. Special Government Audit. If at any time during the Term, Customer is required by an applicable law, including, but not limited to, audits and inspections required pursuant to the Sarbanes-Oxley Act and HIPAA, or by a governmental or regulatory agency having jurisdiction over Customer, to have an audit or inspection of the Services and Zipari Platform then being provided to Customer or information concerning Customer held by Zipari under this Agreement, then Zipari, upon reasonable advance notice will allow the governmental or regulatory agency exercising jurisdiction over the business of Customer to conduct such an audit or inspection as it relates to Zipari’s provision of the Services under this Agreement. Zipari’s cooperation in such an audit or inspection will include providing access to facilities and records relevant to Customer as reasonably necessary to perform the audit. Zipari shall reimburse or otherwise indemnify Customer for any costs or expenses necessarily and reasonably incurred by Customer associated with any Zipari breach of this Agreement found during any government audit. 4. FEES 4.1. Service fees are set forth in the Agreement. Unless stated otherwise in the Agreement, Customer shall pay all undisputed fees and expenses, by check or wire transfer within thirty (30) days of receipt of invoice. 5. PROPRIETARY RIGHTS 5.1. Each party shall retain all rights, title, and interest, in and to Intellectual Property. Zipari expressly retains all rights, title, and interest to the Services, including the Zipari Product and Zipari Platform, and any improved, updated, modified or additional parts thereof. Customer shall retain all right, title, and interest in and to the Customer Data and any updates, modifications and additions to the Customer Data including any Intellectual Property embodied in the Customer Data. Any Intellectual Property produced, conceived, or otherwise developed by or for Zipari hereunder without the use of Customer Data shall be the exclusive property of Zipari. Any Intellectual Property produced, conceived, or otherwise specifically developed by or for Customer or based on Customer Data shall be the exclusive property of Customer, however Customer hereby grants to Zipari a non-exclusive, non-revocable, perpetual, worldwide license to use such Intellectual Property, on a strictly anonymous basis, for its own research, development and business purposes. For the avoidance of doubt, in no event shall Zipari be entitled to sell, license, assign or otherwise transfer any Intellectual Property produced, conceived, or otherwise specifically developed by or for Customer or based on Customer Data on a non-anonynous basis to a third party, without Customer’s prior written consent, which Customer may withhold in its sole and absolute discretion, unless such transfer is to a related party of Zipari, or caused by the merger, consolidation, recapitalization or reorganization of Zipari, in which case Customer’s consent shall not be unreasonably withheld. Each party grants the other a limited, non-exclusive, revocable, nontransferable, non-sublicenseable, royalty-free license to use certain Intellectual Property of the other party solely for the purposes of performing obligations or exercising rights under the Agreement, as designated by and in accordance with the guidelines of such granting party, and subject to the terms of the Agreement. Customer shall not remove any Zipari Marks from any Data, Analyzed Data or Documentation. Customer and Zipari shall have the right to issue press releases and use the other party’s Marks, name and logo for marketing and promotion purposes, upon the prior written consent of the other party which shall not be unreasonably withheld or delayed. Any use by Zipari of Customer’s Marks, name or logo will inure to the exclusive benefit of Customer and Zipari agrees not to disparage, dilute or adversely affect the validity of the Customer’s Marks, name or logo. Any use by Customer of Zipari’s Marks, name or logo will inure to the exclusive benefit of Zipari and Customer agrees not to disparage, dilute or adversely affect the validity of Zipari’s Marks, name or logo. 5.2. Customer and its users may, from time to time, make known to Zipari suggestions, enhancement requests, techniques, know-how, comments, feedback or other input with respect to the Services or Zipari Intellectual Property (collectively, “Suggestions”). Unless otherwise agreed to in writing by the parties with respect to any Suggestion, Zipari shall have a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute and exploit any Suggestion without restriction or obligation of any kind, on account of confidential information, Intellectual Property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Suggestion with no obligation to license or to make available the Improvement to Customer or any other person or entity. 6. CONFIDENTIALITY 6.1. “Confidential Information” means all written, electronic or oral information, disclosed by one party (the “Discloser”) to the other (the “Recipient”), identified as confidential or proprietary, as well as information that, based on its nature and the circumstances surroundings its disclosure, a reasonable person would consider to be confidential or proprietary. The Recipient will keep confidential any Confidential Information disclosed to it by the Discloser. With respect to any Confidential Information, the Recipient shall: (i) maintain confidentiality using the same care that it would use for its own confidential information, but in any event with reasonable care; (ii) use the Confidential information solely for the purposes of the Agreement; (iii) cease use of such Confidential Information immediately upon termination or expiration of the Agreement and either return or permanently destroy it upon request of the Discloser; and (iv) not attempt to reverse engineer, decompile or create derivate works from or using the Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Laws, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other in order to seek protective relief, if legally permissible, and provided such assistance as may be reasonably requested to limit or prevent such disclosure. The confidentiality obligations of this Section 6 shall terminate with respect to any Confidential Information when the Recipient can prove that such information was (i) in the public domain at the time of Discloser’s communication to the Recipient, or it subsequently entered the public domain through no fault of the Recipient, (ii) in the Recipient’s possession free of any obligation of confidence at the time of the Discloser’s communication to the Recipient, (iii) subsequently rightfully communicated to the Recipient free of any obligation of confidence, or (iv) was or is independently developed by the Recipient without reference or recourse to the Discloser’s Confidential Information. 6.2. Return of Confidential Information. Except as otherwise provided in Section 10 below, immediately upon the Discloser’s request, and in any event no later than the end of the Term or other termination date of this Agreement, except as otherwise provided in this Agreement (including as reasonably required for the Recipient to perform its obligations or exercise its rights hereunder), the Recipient will, and will confirm in a writing provided by a duly appointed officer that: 6.2.1. all materials and media embodying Confidential Information of the Discloser, including all originals, copies, reproductions and summaries of such Confidential Information have been returned to the Disclosing Party or permanently destroyed; and 6.2.2. all copies of Confidential Information of the Disclosing Party in its possession, power or control, which are present on magnetic media, optical disk, volatile memory or other storage device, have been permanently destroyed in a manner that ensures that such Confidential Information is rendered unrecoverable. 6.3. Each party agrees that any other party’s violation of the provisions of this Section 6 will cause immediate and irreparable harm to the other party for which money damages are not an adequate remedy at law. Therefore, the parties agree that, in the event either party breaches or threatens to breach said provision or covenant, the other party shall be entitled to an injunction to restrain said breach or threatened breach, without posting any bond or other security. 7. WARRANTIES 7.1. Mutual Warranties. Each party hereby represents and warrants that it: (i) is a legal entity duly organized, validly existing and in good standing; (ii) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other party’s obligations under the Agreement or damage the reputation of the other party; (iv) will not, in performing its obligations under the Agreement, knowingly violate any other agreement between such party and any third party, and (vi) will comply, in its performance related to the Agreement, with all Applicable Laws. 7.2. Zipari further represents and warrants that: 7.2.1. Zipari shall perform all Services in a professional and workmanlike manner in accordance with industry standards; 7.2.2. the Zipari Platform and the Services do not and will not infringe or violate the Intellectual Property rights of any third party; 7.2.3. the Zipari Platform and the Services do not contain any pre-programmed devices, such as “viruses”, “time bombs”, “worms”, “Trojan horses”, malicious code, or other similar component, that will cause the Services or Zipari Platform to become damaged, erased, inoperable, or incapable of performing. 7.2.4. the Zipari Platform and the Services as applicable (i) will function in all material respects as described in the Documentation and in conformance with all Specifications; and (ii) will be free from material defects and errors. 7.2.5. the Zipari Platform and the Services will comply at all times with all Applicable Laws and the security obligations set forth in this Agreement. 7.3. Limitations. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, AND/OR QUIET ENJOYMENT. NO WARRANTY IS MADE BY EITHER PARTY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. ZIPARI DOES NOT WARRANT THAT THE SERVICES OR ZIPARI API WILL (i) MEET ALL OF CUSTOMER’S REQUIREMENTS; (ii) WILL PROVIDE RESULTS THAT ARE ACCURATE OR RELIABLE; OR (iii) WILL MEET CUSTOMER’S EXPECTATIONS. 7.4. Additional Disclaimers. Zipari exercises no control over, and accepts no responsibility for, any third party components of the Services which are outside Zipari’s control, such as internet access, and computer or network equipment, all of which are the responsibility of Customer. 8. LIMITATION OF LIABILITY 8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT TO THE EXTENT SUCH DAMAGES ARE PAYABLE TO THIRD PARTIES PURSUANT TO THIRD PARTY CLAIMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO CUSTOMER’S BREACHES OF THE LICENSES OR RESTRICTIONS SET FORTH IN SECTION 2 OR ZIPARI’S PROPRIETARY RIGHTS SET FORTH IN SECTION 5, ZIPARI’S BREACH OF CUSTOMER’S PROPRIETARY RIGHTS IN SECTION 5, EITHER PARTY’S BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3 OR 6, AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, THE TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED, THE AMOUNTS ACTUALLY PAID TO ZIPARI BY CUSTOMER UNDER THIS AGREEMENT FOR THE PRIOR TWELVE MONTHS. 9. INDEMNIFICATION 9.1. Zipari Infringement Indemnities. Zipari shall defend, indemnify and hold Customer, Customer’s affiliates, employees, officers, directors and shareholders, Users, Members and Brokers (“Customer Indemnitees”) harmless against any damages, losses; liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred as a result of claims, suits, or proceedings (“Claims”) brought against any of the Customer Indemnitees by a third party contending that the Zipari Platform or the Services infringe any Intellectual Property rights of a third party. In the event that the Zipari Platform or the Services or any part thereof are likely to, in Zipari’s sole opinion, or do become the subject of an infringement related Claim, and Zipari cannot, at its option and expense, procure for Customer the right to continue using the Zipari Platform or the Services, or any part thereof, or modify the Zipari Platform or the Services, or any part thereof without impacting the material functionality, to make them non infringing, then Zipari may terminate this Agreement and promptly provide a refund to Customer for any pre-paid fees for unused Services in addition to the reimbursement payment as detailed below. Zipari shall have no liability for any Claim or demand arising from (i) the use or combination of the Zipari Platform or the Services or any part thereof with software, hardware, or other materials not developed or provided by Zipari if the Zipari Platform or the Services or use thereof would not infringe without such combination; or (ii) Zipari’s compliance with Customer’s written instructions if the Zipari Platform or the Services or use thereof would not infringe without such written instructions. The foregoing states Zipari’s entire liability and Customer’s sole remedy for claims of Intellectual Property infringement, except that where Zipari elects to terminate the Agreement in accordance to this Section, then Zipari shall reimburse Customer the reasonable costs and fees incurred in transitioning to a replacement service provider for a substantially similar service, however said cost and reimbursement shall not exceed one (1) year’s fees paid by Customer to Zipari in the previous one (1) year period. 9.2. Zipari General Indemnity. Zipari shall defend, indemnify and hold the Customer Indemnitees harmless against any damages, losses; liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred in connection with any Claims (i) based on any failure or alleged failure of Zipari (or its representatives, contractors or agents) to comply with any Applicable Laws; (ii) arising from Zipari’s or its representatives, contractors or agents ) breach or violation of this Agreement; or (iii) arising from any negligence or misconduct of Zipari or its representatives, contractors or agents. 9.3. Customer Indemnity. Customer shall defend, indemnify and hold Zipari, its affiliates, employees, officers, directors and shareholders harmless against any damages, losses; liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred in connection with Claims (i) made or brought against Zipari by a third party alleging that the Customer’s improper use of the Data or the Analyzed Data infringes or violates the Intellectual Property rights of a third party, (ii) based on any failure or alleged failure of the Customer to comply with any Applicable Laws; or (iii) arising from Customer’s breach of this Agreement. 9.4. Procedure. The party seeking indemnification hereunder (the “Indemnified”) shall promptly inform the other party (the “Indemnifying”) of any suit or proceeding filed against the Indemnified by a third party (a “Third Part Claim”) for which the Indemnified party is entitled to indemnification hereunder. The Indemnifying party may direct the defense and settlement of any such Third Party Claim (subject to the terms hereof), with counsel reasonably acceptable to the Indemnified party; provided that the Indemnified party shall be entitled to have sole control over the defense or settlement of any Third Party Claim if (a) such Third Party Claim relates to or arises in connection with any criminal or other action by a governmental authority involving a Customer Indemnitee, or (b) such Third Party Claim seeks an injunction or equitable relief against a Customer Indemnitee. The Indemnified party will provide the Indemnifying party, at the Indemnifying party’s expense, with information and assistance reasonably necessary for the defense and settlement of the Third Party Claim. If the Indemnifying party controls the defense of a Third Party Claim in accordance with the terms hereof, the Indemnified party shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such Third Party Claim. An Indemnifying party will not settle any such Third Party Claim without the written consent of the Indemnified party (which consent will not be unreasonably withheld or delayed) unless such settlement (i) includes the giving by the claimant to the Indemnified party of an unconditional release from all liability in respect of such Third Party Claim and (ii) does not involve a finding of admission or wrongdoing on the part of the Indemnified party or impose an injunction or other equitable relief or obligation upon the Indemnified party. 10. TERM and TERMINATION 10.1. Term. The Term commences on the Effective Date and continues for the duration of the Subscription Period, as set forth in the Agreement (and taking into account any suspension period, as set forth in the Agreement). The Term (and the Subscription Period) will automatically renew for successive one (1) year periods, unless a party notifies the other party in writing of non-renewal at least ninety (90) days prior to expiration of the then-current Term or Subscription Period. 10.2. Termination. A party may terminate the Agreement (i) for a breach of the Agreement by the other party, if such other party has not cured the breach within thirty (30) days of receiving written notice that it is in breach; (ii) immediately, upon written notice, if the other party (a) is adjudged insolvent or bankrupt, (b) has instituted against it, and not dismissed within thirty (30) days after filing, or institutes any proceeding seeking relief, reorganization or arrangement under any Applicable Laws relating to bankruptcy or insolvency, (c) makes any assignment for the benefit of creditors, (d) appoints a receiver, liquidator or trustee of any of its property or assets, or (e) liquidates, dissolves or winds up its business, or (iii) upon thirty (30) days written notice if any change occurs in any Applicable Laws that would, in that party’s reasonable opinion based on a written opinion of such party’s legal counsel, render the party’s performance hereunder illegal or otherwise subject to legal challenge. In addition, Customer may terminate this Agreement upon written notice to Zipari during any Suspension Period, as such suspension period is described in Section 6 of the Agreement. 10.3. Effect. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Zipari prior to the effective date of termination unless such termination is due to an uncured breach on the party of Zipari. Upon expiration or termination of the Agreement, all licenses granted hereunder shall immediately terminate, Customer’s right to access or use the Zipari Platform or Analyzed Data shall cease, and each party shall immediately cease using the other party’s Intellectual Property and Confidential Information. 10.4. Transition. Upon expiration or termination of this Agreement for any reason, Zipari shall immediately deliver or otherwise make available to Customer all Customer Data in a format mutually agreeable to the parties. 10.5. Survival. Sections 1, 5, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. 11. ADDITIONAL PROVISIONS 11.1. Insurance. Zipari shall obtain at its own expense and evidence via certificate(s) of insurance the following insurance before commencement of any Services and throughout the duration of this Agreement: 11.1.1. Technology E&O/Technology Products E&O: minimum of $3 million limit and in the annual aggregate, inclusive of defense costs, however, upon obtaining members, the Customer and Zipari will mutually agree to require Zipari to obtain a minimum limit of $5 million; 11.1.2. Network Security / Privacy Liability; including (i) computer or network systems attacks; (ii) denial or loss of service; (iii) introduction, implantation, or spread of malicious software code; (iv) unauthorized access and use of computer systems; (v) privacy liability; and (vi) breach response coverage. Insurance coverages shall have a minimum of $5 million limit and in the annual aggregate. Breach response sublimits of at least 50% of the liability limit. If policy or policies are written on a claims-made basis, coverage must be in place for a period of at least twelve (12) months after the expiration or termination of this Agreement. Customer must be named as an additional insured under such policies. All insurance carrier(s) must carry an A.M. Best rating of at least A-, Class VIII. 11.2. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the state and federal courts located in Colorado. 11.3. Assignment. Neither party shall assign the Agreement without prior written consent of the other party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may assign the Agreement upon written notice to (i) a successor-in-interest as a result of a merger, change of control, or consolidation, including without limitation the sale of all or substantially all of its assets, stock or business to which this Agreement relates or (ii) an affiliate controlled by or under common control with such party. 11.4. General. The Agreement, including these Terms and Conditions: (i) covers the parties’ entire agreement, and supersedes all prior discussions and writings between them, relating to its subject matter; (ii) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; (iii) creates no agency, partnership or employer-employee relationship between the parties; their relationship is that of independent contractors; and (iv) has no third party beneficiaries. If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the Parties’ intent; the remainder will remain in full force and effect. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of the Agreement if the performance of its obligations is delayed or prevented by any Force Majure event. The Agreement may only be amended in writing, signed by both parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Notices shall be in writing and may be delivered in person, by mail, or electronic mail and shall be deemed served when delivered, to the address provided by each party. 11.5. Diaster Recovery. In the event of a disaster, the Recovery Time Objectives for customer-facing business functions are within 48 hours, where other functions that are less critical are within 5 days, and the Recovery Point Objectives are 24 hours. 11.6. Zipari agrees to provide access to three full environments for the Platform including production, system test and unit test.