Terms of Sale

This Master License, Subscription and Services Agreement (this "Agreement") governs your and your Authorized Users' use of the Services, which are made available to you ("Customer," "you," or "your") by Shift5, Inc ("Shift5," "we," "our," or "us"). If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms "you" or "your" refers to such entity. We and you are each referred to herein as a "Party," and together are referred to herein as the "Parties."

The Parties hereby agree as follows:

  1. DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

    1.1 "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

    1.2 "Authorized User" means any of your current employees, contractors, or agents whom you authorize to access and use the Shift Product(s) pursuant to the terms and conditions of this Agreement; provided, however, that any contractors' or agents' access to and use of the Shift Product(s) will be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Shift Product(s) using any of your or your Authorized Users' access credentials.

    1.3 "Confidential Information" means: (i) with respect to Shift5, the Shift5 Product(s), the Portal, the Website, the Documentation, the Services, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, the Customer Data and any nonpublic information or material regarding your legal or business affairs, financing, customers, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the "Receiving Party"); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the "Disclosing Party"); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.

    1.4 "Customer Data" means: (i) any data captured by the Software and made available to you and your Authorized Users through the Portal, including but not limited to data from Shift5 Intake, Shift5 Gauge Cluster, Shift5 Engine; and (ii) any data that you or your Authorized Users submit through the Portal or website, but specifically excluding, any Feedback (as defined below).

    1.5 "Destructive Elements" means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Shift5 Product(s), or any other associated software, firmware, hardware, computer system, or network (including, without limitation, "Trojan horses," "viruses," "worms," "time bombs," "time locks," "devices," "traps," "access codes," or "drop dead" or "trap door" devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Shift5 Product(s), to cease functioning or to damage or corrupt data, storage media, programs, hardware, or communications, or otherwise interfere with operations.

    1.6 "Documentation" means all Shift5 Product(s) related technical, repair, marketing and end-user materials, including product and software manuals; installation, maintenance, operating and enduser manuals, instructions and diagnostics, system administrative materials; configuration guides, marketing and sales brochures and literature, training materials and product guides. Documentation includes, if applicable, materials provided by Shift5's vendors and/or licensors.

    1.7 "Hardware" means the hardware component of the Shift5 Product(s).

    1.8 "Fees" means the fees set forth in the applicable Purchase Order.

    1.9 "Supplier" means the third-party supplier of Hardware.

    1.10 "Privacy Policy" means our privacy policy set forth on the Website.

    1.11 "Prohibited Content" means content that: (i) is illegal under applicable law; (ii) violates any third party's intellectual property rights, including, without limitation, copyrights, trademarks, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to us in our sole, but reasonable, discretion.

    1.12 "Purchase Order" means a purchase order mutually executed by the Parties that sets forth: (i) the Shift5 Product(s) being ordered; (ii) whether such Shift5 Product(s) are being made available as installed software or as a Shift5 hosted, web-based service ("Portal"); (iii) whether the Hardware is purchased or leased; (iv) the applicable Software License Term; (v) the applicable Subscription Term; (vi) the applicable number of Authorized Users; (vii) the applicable fees; and (viii) other mutually-agreed upon terms and conditions. The Purchase Order is deemed incorporated into and made a part of this Agreement. To the extent any provision set forth in the Purchase Order conflicts with any provision set forth elsewhere in this Agreement, the provision set forth in this Agreement shall govern, unless the Purchase Order includes the section numbers of this Agreement that the Parties agree no longer govern or are modified for the matters covered thereby.

    1.13 "Services" means Shift5's provision of access to, and usage of, the Shift5 Product(s) and the Support Services, such as installation and maintenance, all as set forth in this Agreement and the applicable Purchase Order.

    1.14 "Shift5 Product" means (i) the product that is described on the Purchase Order; and (ii) any Updates that Shift5 makes available to Customer from time to time.

    1.15 "Shift5 Reports" means any reports generated by Authorized Users through their use of the Portal.

    1.16 "Software" means the software components of the Shift5 Product(s) identified on the applicable Purchase Order, in object code form only, that Shift5 will provide to Customer under this Agreement.

    1.17 "Software License Term" means the term for which you are licensed to use the Software as set forth in the applicable Purchase Order.

    1.18 "Specifications" means the technical and functional specifications for all Software and Hardware as set forth in Documentation provided to Customer.

    1.19 "Subscription Term" means the term for which you are subscribing to the Portal as set forth in the applicable Purchase Order.

    1.20 "Updates" means any corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the Shift5 Product that Shift5 provides in connection with this Agreement. All version numbers shall be reasonably determined by Shift5 in accordance with normal industry practice.

    1.21 "Website" means any website through which we provide access to the Portal.

  2. LICENSE AND SUBSCRIPTION TO SHIFT5 PRODUCT; SUPPORT SERVICES.

    2.1 License and Subscription to Shift5 Product(s). Subject to the terms and conditions of this Agreement and the applicable Purchase Order, Shift5 grants Customer a non-exclusive, nontransferable, worldwide right and/or license, without the right to grant sublicenses, to authorize Authorized Users to use the Software, Portal, Shift5 Reports, and Documentation solely for Customer's internal business purposes. The Software License Term and the Subscription Term as it applies to a particular item of Shift5 Product will be for the period set forth in the applicable Purchase Order, subject to early termination pursuant to Section 5.2 below. Customer may copy and use (and permit the Authorized Users to copy and use) the Documentation solely in connection with the use of the Shift5 Product(s) under this Agreement. If the Purchase Order provides that an item of Shift5 Product is being made available as a Portal, then Customer will not be provided any copies of such Shift5 Product, but instead will access such Shift5 Product through the Website. Shift5 will be responsible for hosting the Portal and the Website, and Customer will be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the Portal and the Website. We modify the Portal and our Website from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during any Subscription Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Portal or the Website. All rights not expressly granted to Customer herein are expressly reserved by Shift5.

    2.2 Support Services. During the Term hereof, Shift5 shall provide Support Services in the form of responses to questions by email or telephone at no additional charge to Customer. Customer support can be provided by telephone +1-703-810-3320. Customer support email is info@shift5.io.

    2.3 Incorporated Terms. Customer and its Authorized Users use of the Portal is governed by this Agreement, as well as the Website's terms of use (the "Terms of Use") and privacy policy (the "Privacy Policy"), which may be updated from time to time by Shift5 without notice to Customer. The Terms of Use and the Privacy Policy, as amended (collectively, the Incorporated Terms"), are incorporated into this Agreement by this reference and made a part hereof. In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, the terms of this Agreement shall prevail.

  3. HARDWARE AND SOFTWARE.

    3.1 Delivery of Hardware. You can either purchase or lease the Hardware from us. Upon acceptance of the applicable Purchase Order, Shift5 shall deliver the Hardware to Customer on the delivery date set forth in the applicable Purchase Order or as otherwise agreed upon by the Parties. All risk of loss of, or damage to, the Hardware shall be borne by Shift5 until Customer's receipt of delivery of such Hardware. Hardware delivery terms, shipping & handling, and integration processes and costs will be provided to Customer in the applicable Purchase Order.

    3.2 Hardware Inspection, Testing, and Acceptance. Customer may inspect and test the Hardware within fifteen (15) days of Customer's receipt thereof to determine whether the Hardware conforms in all material respects with the Hardware Specifications. During such time period, Customer shall notify Shift5 in writing indicating acceptance (the date of such acceptance, the "Hardware Acceptance Date") or rejection of the Hardware. If Customer rejects the Hardware, the rejection notice shall identify the non-conformities contained therein and Customer shall return the Hardware to Shift5 at Shift5's expense. Upon receipt of a rejection notice, Shift5 shall have thirty (30) days to ship replacement Hardware to Customer. For any Hardware that is not rejected within such timeframe, it shall be deemed accepted by Customer. Any replaced Hardware may be evaluated over an additional fifteen (15) days period and accepted or rejected by Customer in accordance with the provisions of this Section 3.2.

    3.3 Leased Hardware.

    3.3.1 If you lease any Hardware through us you shall pay the additional Fees set forth on the applicable Purchase Order in connection with such lease.

    3.3.2 If you lease any Hardware through us, you acknowledge and agree that the Hardware is being leased to you, at the prices set forth on the applicable Purchase Order, for use solely in connection with the Services pursuant to this Agreement. For the avoidance of doubt, you shall not (and shall not permit any third party) to use any leased Hardware for any purpose other than to access and use the Services. You shall use any leased Hardware in a careful and proper manner in conformity with their instructions and manuals and all applicable laws. In addition, you shall not use any leased Hardware in any manner that could reasonably be expected to impair the applicability of Shift5's and/or suppliers' warranties or render them unfit for their originally intended use nor permit any person other than authorized and competent personnel to operate it.

    3.3.3 Title to any leased Hardware shall at all times remain in Shift5. You shall have no right, title, or interest in or to any leased Hardware except the right to possession and use thereof during the Software License Term and pursuant to the conditions in this Agreement. Any leased Hardware shall remain personal property, notwithstanding the manner in which they may be affixed to any real property. You shall at all times protect and defend, at your own cost and expense, the title and interest of Shift5 from and against all claims, liens, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of Customer and keep any leased Hardware free and clear from all such claims, liens, processes, and any other encumbrance. You shall not sublease, transfer, or dispose of any leased Hardware or grant or permit any lien on them. You agree that you will not mortgage or otherwise encumber any leased Hardware.

    3.3.4 We shall have the right to mark any leased Hardware in a distinct and conspicuous manner with the name of Shift5 followed by the words "Property of Shift5 Inc" or other appropriate words designated by us. You shall not alter, deface, or remove any of our ownership identification plates or markings and, upon our request, you shall affix or re-affix such identification.

    3.3.5 Any leased Hardware shall be located at your place of business, or installed on a system owned by you, and you shall not remove, or permit (by act or omission) the leased Hardware to be removed without our prior written consent.

    3.3.6 You shall immediately notify Shift5 of any problems with any leased Hardware, and shall use your best efforts to work with Shift5 to pursue any warranty claims that Shift5 may have in relation to them in accordance with Section 9.4. As between the Parties, Shift5 shall be responsible for all repair and maintenance of the any leased Hardware during the Hardware Warranty Period; provided, however, that you shall be solely responsible for the costs of any repairs and maintenance necessitated by your negligence or misuse of them.

    3.3.7 Upon the termination of this Agreement, or at any other time upon demand by us, you, at your sole expense, shall, as directed by Shift5, either (i) return any leased Hardware to us by delivering it in a manner consistent with the Shift5's recommendations and practices to such place or on board such carrier (packed properly and in accordance with the Shift5's instructions) as we shall specify; or (ii) fully cooperate with us in the disposition of any leased Hardware. You shall ensure that any leased Hardware will be returned to us free and clear of all claims, liens, processes, and any other encumbrances and in the same condition as when delivered to you, reasonable wear and tear excepted. At any time, upon any total or partial loss of or damage to any leased Hardware during the Software License Term, you shall be responsible for the value to replace or repair of any leased Hardware.

    3.4 Delivery of Software. Upon acceptance of the applicable Purchase Order, Shift5 shall deliver the Software to Customer on the delivery date set forth in the applicable Purchase Order or as otherwise agreed upon by the Parties.

  4. FEES AND PAYMENT

    4.1 Fees and Taxes. All Fees shall be set forth in the applicable Purchase Order and are due and payable as set forth in the applicable Purchase Order. Fees and other charges described in the Purchase Order are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes ("Taxes") now or hereafter levied, all of which will be for your account. If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such amounts in accordance with the payment terms set forth in the invoice. You hereby agree to defend, indemnify, and hold harmless us, our Shift5s, our hosting providers, and our and their respective officers, directors, managers, employees, contractors and agents from any and all liabilities, costs, and expenses (including reasonable attorneys' fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by us on your behalf. For the avoidance of doubt, we will only be responsible for any taxes related to our income, property, franchise, or employees.

    4.2 Non-Refundable. Unless otherwise expressly provided for in this Agreement or the applicable Purchase Order, all Fees paid under this Agreement are non-refundable.

    4.3 No Contingency for Future Commitments. Unless otherwise expressly provided for in the applicable Purchase Order, you agree that payment of the Fees under this Agreement and any applicable Purchase Order is not contingent on the delivery of any future product functionalities, or features, or any other future commitments.

  5. TERMINATION AND SUSPENSION

    5.1 Term. The term of this Agreement (the "Term") commences on the Effective Date and will continue in effect thereafter until terminated in accordance with Section 5.2.

    5.2 Auto-Renewal. Unless otherwise expressly provided in the Purchase Order (i) all subscriptions automatically renew (without the need to go through the Portal-interface "check-out" or execute a renewal Purchase Order) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (ii) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of nonrenewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.

    5.3 Termination. Either Party may terminate this Agreement on written notice to the other Party at any time when there are no Purchase Orders then in effect. In addition, either Party may terminate this Agreement and/or any Purchase Orders: (i) upon thirty (30) days' notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. We may also terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 11.3 below.

    5.4 Suspension for Non-Payment. We may suspend the Services upon written notice to you if any undisputed invoiced amount due to us is past due. We will not suspend the Services while you are disputing any invoiced amount due to us reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Services are suspended for non-payment, we may charge a reactivation fee to reinstate the Services. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay any invoiced amounts that you are not disputing in good faith.

    5.5 Effect of Termination. Upon any termination or expiration of this Agreement: (i) we will stop providing the Services, and you will stop all access to and use of the Website, Portal, Software, Documentation, and Shift5 Reports; (ii) you will promptly return any leased Hardware as per our directions; (iii) you will promptly pay all unpaid Fees and applicable Taxes due through the end of the Term; and (iv) each Party will either return to the Disclosing Party (or, at such Disclosing Party's instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party's Confidential Information that are in the Receiving Party's possession or control.

    5.6 Survival. The following provisions will survive termination of this Agreement: Section 1 ("Definitions"), Section 3.3.7 ("Leased Hardware"), Section 4("Fees and Payment") until you have paid all Fees and applicable Taxes, Section 5.4 ("Effect of Termination"), Section 6 ("Confidentiality; Feedback"), Section 7.1 ("Intellectual Property"), Section 7.3 ("Aggregated Data"), Section 9.5 ("Disclaimer"), Section 10 ("Limitation of Liability"), Section 11 ("Indemnification"), Section 12 ("General Provisions"), and this Section 5.5 ("Survival").

  6. CONFIDENTIALITY; FEEDBACK

    6.1 Confidentiality. At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Purchase Orders. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors or agents (its "Representatives"), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party's Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.

    6.2 Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 6.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 6.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.

    6.3 Feedback. During the Term, you may elect to provide us with feedback, comments, and suggestions with respect to the Shift5 Product(s) and the Services ("Feedback"). You agree that Shift5 will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.

  7. INTELLECTUAL PROPERTY

    7.1 Intellectual Property. All right, title, and interest in and to the Services, the Shift5 Product(s), the Documentation, Shift5 Reports, the Usage Data, the Aggregate Data, and the Hardware (if leased) including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, will be and remain the sole and exclusive property of Shift5 and its licensors.

    7.2 Customer Data. All right, title, and interest in and to Customer Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, will be and remain Customer's sole and exclusive property. Subject to the terms and conditions of this Agreement, Customer hereby grant Shift5 during the Term a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data solely as necessary to provide the Services and only as permitted by this Agreement. Customer will have sole responsibility for the accuracy, quality, and legality of the Customer Data.

    7.3 Aggregated Data. Shift5 monitors the performance and use of the Shift5 Product(s) by its customers and collects data in connection therewith (the "Usage Data"). Shift5 may combine this Usage Data with other anonymized data (including anonymized elements of the Customer Data), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the "Aggregate Data"). Customer hereby agrees that Shift5 may collect, use, and publish such Aggregate Data; provided, however, that such usage shall not, directly or indirectly, identify Customer, its Authorized Users, or any individual, and subject to the provisions of Section 6 (Confidentiality; Feedback) of this Agreement.

  8. USE AND LIMITATIONS OF USE.

    8.1 Restrictions on Use. You will not (and will not authorize, knowingly permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Shift5 Product(s), Shift5 Reports and Documentation; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Shift5 Product(s); (iii) modify, adapt, or translate the Shift5 Product(s), Shift5 Reports and Documentation; (iv) make any copies of the Shift5 Product(s); (v) resell, distribute, or sublicense the Shift5 Product(s), Shift5 Reports and Documentation; or use any of the foregoing for the benefit of anyone other than you; (vi) save, store, or archive any portion of the Services outside the Portal; (vii) remove or modify any proprietary markings or restrictive legends placed on the Shift5 Product(s), Shift5 Reports and Documentation; (viii) use the Shift5 Product(s), Shift5 Reports and Documentation in violation of any applicable law or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; or (ix) introduce, post, or upload to the Shift5 Product(s) any Prohibited Content.

    8.2 Onboarding of Authorized Users. Authorized Users must log into the Portal. During the initial registration, you will be prompted to create an account, which includes a sign-in name ("Sign-In Name"), a password ("Password"), and certain additional information, including a valid email address, that will assist in authenticating your account when your Authorized User logs-in in the future ("Unique Identifiers"). When creating an account, you must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of your SignIn Name, Password, and Unique Identifier, as well as for any use, misuse, or communications entered through the Website or the Portal. You will promptly inform us of any need to deactivate your Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. We will not be liable for any unauthorized use of your account.

  9. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.

    9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Purchase Orders; (ii) the execution, delivery, and performance of this Agreement, and Purchase Orders and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.

    9.2 Our Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 9.1, we represent and warrant to you that: (i) the Software will conform in all material respects with the applicable Specifications during the Term; and (ii) the Hardware will be free from defects in materials and workmanship for a period of eighteen (18) months from the Hardware Acceptance Date ("Hardware Warranty Period").

    9.3 Software Error Correction. If the Software does not perform as warranted in Section 9.2, Customer shall notify Shift5 in writing and Shift5 will, as promptly as practicable, correct, replace or modify the Software at Shift's expense (such corrections, replacements or modifications to be part of Support Services) so as to provide Customer with Software that performs as warranted. This warranty does not apply to (i) any defect, error, or malfunction caused by Customer Data, (ii) any defect, error, or malfunction caused by Customer's or any Authorized User use of Software in breach of this Agreement; or (iii) modifications to the Software or any portion thereof not made by Shift5 or with Shift5's express consent. THIS SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND SHIFT5'S SOLE AND EXCLUSIVE LIABILITY FOR SHIFT5'S BREACH OF WARRANTIES SET FORTH IN THIS SECTION 9.2 (I).

    9.4 Hardware Warranty Claims. In accordance with the terms of this Agreement, during the Warranty Period, Shift5 shall coordinate with the Supplier the replacement and/or repair of the Hardware, and any component thereof, that fails to meet or remain in compliance with applicable Hardware Specifications, at no additional cost to Customer. Shift5 shall designate and identify to Customer a principal point of contact for receiving such requests from Customer. This warranty will be void if there is evidence of damage, misuse, or modification of Hardware by Customer. For purposes of use or modification of the Hardware, whether in and of itself or in combination with other components, devices, software, application or environment which exceeds, or is outside the scope of the technical specifications or performance capabilities of the Hardware, as expressly stated in any Documentation.

    9.5 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE SERVICES, THE SHIFT5 PRODUCT(S), THE SOFTWARE, THE PORTAL, THE WEBSITE, THEIR COMPONENTS, ANY DOCUMENTATION, THE HARDWARE, THE USAGE DATA, THE AGGREGATE DATA, THE CONTENT, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND SHIFT5 MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY PURCHASE ORDER AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT SHIFT5 MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

  10. LIMITATION OF LIABILITY. IN NO EVENT WILL SHIFT5 BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY PURCHASE ORDER, REGARDLESS OF WHETHER SHIFT5 WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. SHIFT5'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR ANY PURCHASE ORDER WILL NOT EXCEED THE FEES PAID BY YOU HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT OR ANY PURCHASE ORDER MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.

  11. INDEMNIFICATION.

    11.1 Indemnification by Shift5. Subject to Section 11.2, we will defend, indemnify, and hold harmless you and your Representatives from any and all liabilities, costs, and expenses (including reasonable attorneys' fees) in connection with any third-party action, claim, or proceeding (each a "Third-Party Claim") alleging that your access and use of the Software, Portal and/or the Website in accordance with this Agreement infringes or misappropriates any third-party copyrights or trade secrets; provided, however, that the foregoing obligation will be subject to your: (i) promptly notifying us of the Third-Party Claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the Third-Party Claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise of the Third-Party Claim.

    11.2 Exceptions to Our Indemnification Obligations. We are not obligated to indemnify, defend, or hold you and your Representatives harmless with respect to any Third-Party Claim to the extent: (i) the Third-Party Claim arises from or is based upon your, and/or your Authorized Users' use of: (a) the Software, Portal and/or the Website not in accordance with this Agreement or Purchase Order; or (b) any unauthorized modifications, alterations, or implementations of the Software, Portal and/or the Website made by you or at your request (other than by us); (ii) the Third-Party Claim arises from use of the Software, Portal and/or the Website in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the Third-Party Claim arises from any use of the Software, Portal and/or the Website for which they were not designed.

    11.3 Infringement Claims. In the event that we reasonably determine that the Software, Portal and/or the Website is likely to be the subject of a Third-Party Claim, we will have the right (but not the obligation), at our own expense, to: (i) procure for you the right to continue to use the Software, Portal and/or the Website as provided in this Agreement and any applicable Purchase Order; (ii) replace the infringing components of the Software, Portal and/or the Website with other components with equivalent functionality; or (iii) suitably modify the Software, Portal and/or the Website so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you and refund you a pro-rated portion of any applicable pre-paid Fees. This Section 11.3, together with the indemnity provided under Section 11.1, states your sole and exclusive remedy, and our sole and exclusive liability, regarding any Third-Party Claim.

    11.4 Indemnification by You. You will defend, indemnify, and hold harmless us, our Affiliates, and our and their respective Representatives from any and all liabilities, costs, and expenses (including reasonable attorneys' fees) in connection with any Third-Party Claim arising from: (i) your or any of your Authorized Users' breach or violation of this Agreement or any Purchase Order; or (ii) your or any of your Authorized Users' gross negligence or willful misconduct; provided, however, that the foregoing obligation will be subject to our: (i) promptly notifying you of the Third-Party Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Third-Party Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise of the Third-Party Claim.

  12. GENERAL PROVISIONS.

    12.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement and any Purchase Order will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

    12.2 Waiver and Modifications. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.

    12.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard for choice of law provisions thereof.

    12.4 Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York, New York for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement or any Purchase Order, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement or any Purchase Order.

    12.5 Notices. All notices required under this Agreement or any Purchase Order (other than routine operational communications) must be in writing and will be delivered either personally or by email, national overnight courier or the U.S. Postal Service to each Party's notices contact and address listed in the applicable Purchase Order. Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by email, or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.

    12.6 Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.

    12.7 Severability. If any provision of this Agreement or any Purchase Order is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement or the Purchase Order will remain in full force and effect. Any provision of this Agreement or any Purchase Order, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.

    12.8 Force Majeure. Except for your obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement or any Purchase Order for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.

    12.9 Third-Party Beneficiaries. Except as set forth in Section 11.1 and Section 11.4, there are no thirdparty beneficiaries under this Agreement or any Purchase Order.

    12.10 Publicity. During the Term, we may refer to you as a customer and user of the Shift5 Product(s). In connection therewith, we may use your name and corporate logos. Any goodwill arising from the use of such name and logos will inure solely to your benefit. All other publicity regarding this Agreement and any Purchase Order will be mutually coordinated and approved by the Parties.

    12.11 Export. You will not authorize or knowingly permit Authorized Users, or any third parties to access or use the Shift5 Product(s) or the Services in violation of any United States export embargo, prohibition, or restriction.

    12.12 Complete Understanding. This Agreement and all Purchase Orders constitute the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. To the extent of any conflict or inconsistency between this Agreement and any term contained in an Purchase Order, the terms of this Agreement will govern, unless such Purchase Order includes the section numbers of this Agreement that the Parties expressly agree no longer govern or are modified for the matters covered thereby. No term included in any confirmation, acceptance, purchase order, or any other similar document from you will change this Agreement or any Purchase Order or have any force or effect.

    12.13 Counterparts. This Agreement and any Purchase Order may be executed in counterparts (which may be exchanged by facsimile or PDF), each of which will be deemed an original, but all of which together will constitute the same Agreement or Purchase Order.