Terms of Service

This Master Service Agreement (“MSA”) governs LeanData, Inc.’s (“LD”) provision of services to you, the client, and shall be read in conjunction with each Service Order (“Service Order”), which identifies the services (defined below) purchased by you (“you” or “Company”). In case of a conflict between the terms of this MSA and the terms of a Service Order, the terms of the Service Order shall govern.

1. TERM AND TERMINATION

a. Term. This MSA shall become effective on the date of the Service Order and shall continue until the expiration of the last Service Order issued and accepted hereunder, unless otherwise terminated as provided below (the “Term”).

b. Termination. During the Term, you may terminate this MSA and/or the accompanying Service Order: (i) immediately, in the case of LD’s Material Breach of this MSA; (ii) upon sixty (60) days’ prior written notice for any other reason; (iii) or as set forth in the corresponding Service Order. For the purpose of this Section, “Material Breach” shall mean LD’s failure to provide the Deliverables in accordance with the specifications in any Service Order that is not cured fourteen (14) days following the delivery of written notice to LD of such a failure, or any breach of LD’s representations or warranties. LD may terminate this MSA and the accompanying Service Order immediately for your breach of your obligations under this MSA.

c. Effect of Termination. In the event of termination for reasons other than LD’s Material Breach: (i) you will remain liable for any amount due under any applicable Service Order; (ii) LD will not refund any prepaid fees; and (iii) LD will wind up its work in a commercially reasonable manner and preserve and deliver to you all paid-for Deliverables (if any are specified in the accompanying Service Order). In the case of termination for LD’s Material Breach, LD will provide a pro-rated refund of any prepaid fees and will wind up its work in a commercially reasonable manner and preserve and deliver to you all paid-for Deliverables (if any are specified in the accompanying Service Order). Upon termination of a Service, all rights and licenses granted to you with respect to that Service shall immediately terminate. Both parties shall return any of the other party’s intellectual property and all confidential information used in the delivery of the Services within ninety (90) days of the date of termination.

2. FEES AND PAYMENT

You shall pay LD the fees (“Fees”) listed in the relevant Service Order pursuant to the payment method set forth therein (unless otherwise specified). All undisputed Fees shall be paid net thirty (30) days from the invoice date (unless otherwise specified). You must submit written notice to LD and provide supporting documentation as to any Fees you dispute within thirty (30) days from the date an invoice is received. LD shall provide a written response within thirty (30) days of the date of the notice. Upon resolution, you shall pay any and all outstanding amounts due and owing within fifteen (15) business days of such resolution. You shall be solely responsible for the payment of, and shall pay when due all applicable federal and state taxes, to LD under this Agreement (except for taxes assessed on LD’s net income), provided all such taxes for the particular period are included by LD on the corresponding invoice with respect to the Services. LD reserves the right to charge additional Fees for any services added in subsequent Service Orders and/or Change Orders.

3. SERVICES: LICENSE, RESTRICTIONS

a. Subscriptions Services/Deliverables. Pursuant to each Service Order, LD will provide data management services and Deliverables (as defined below) (collectively, the “Subscription Services”) for the benefit of you using LD’s proprietary software (the “LD Platform”). The specifications for the Service and any content, materials or other deliverables developed by LD specifically for you, in connection with this Agreement (and associated intellectual property rights) (collectively “Deliverables”) will be set forth on the applicable Service Order. For the avoidance of doubt, “Deliverables” shall not include the LD Platform. Any such Deliverables shall become your property upon payment to LD and subsequent delivery to you.

b. Professional Services. “Professional Services” means fee-based setup, implementation, configuration, consulting, training, content development and other services (other than the Subscription Service) that LD provides pursuant to a Service Order. LD will perform the Professional Services set forth in the applicable Service Order executed by the Parties, which shall include and/or specify a description of the Professional Services to be provided to you, the timeline for the performance of Professional Services, and the applicable Fees and payment terms. If either LD or you request a change in the scope of Professional Services or Platform Improvements, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).

c. License. Subject to the terms and conditions of this Agreement, and any applicable Service Order, LD hereby grants you a limited, worldwide, non-exclusive, non-transferable right and license under its applicable intellectual property rights to use the Services and the LD Platform during the term of this Agreement.

d. Restriction of Use. You agree that you will not use the Services in a manner that (i) infringes or violates the intellectual property rights or other rights of LD or any third party; (ii) violates any law or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of LD; or (vi) transmits a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program to the Website. You further agree not to decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the LD Platform; or make any modification, adaptation, improvement, enhancement, translation, or derivative work from the LD Platform.

4. INTELLECTUAL PROPERTY

The leandata.wpengine.com website and domain name and any other linked pages, features, content, or application services offered from time to time by LD in connection therewith (collectively, the “Website”), and the LD Platform are the property of LD. For the purposes of this Agreement, the Website is considered to be part of the LD Platform. You shall retain all right, title and interest in and to: (i) all documents, messages, graphics, images, files, data, confidential information and other information that is created by you using the Service or the LD Platform, transmitted to, or collected by, LD in connection with the Service or by the LD Platform (collectively, the “Client Data”), and (ii) all Deliverables. You hereby grant to LD a limited, worldwide, royalty-free, non-exclusive license to use the Client Data and Deliverables solely for the purposes of providing the Service to you during the Term.

5. REPRESENTATIONS AND WARRANTIES

a. Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; and (b) this Agreement is a valid binding obligation of such party.

b. LD warrants, represents and agrees that the Services and the LD Platform, as utilized pursuant to the terms of this Agreement: (i) do not and will not violate any law or regulation; (ii) will not transmit a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program to your systems; and (iii) will be performed in a workmanlike manner in accordance with generally accepted industry standards.

c. LD has no special relationship with or fiduciary duty to you. You acknowledge that LD has no control over, and no duty to take any action regarding (other than log-in authentication): which of your users gain access to the Services; how you may interpret or use the Services; or what actions you may take as a result of having used the Services.

d. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, LD MAKES NO (AND HEREBY DISCLAIMS) WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. LD DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE.

6. INDEMNIFICATION

a. LD’s IP Indemnification. LD shall defend, indemnify and hold you harmless against any loss, damage or costs (including reasonable attorneys’ fees) actually payable to unaffiliated third parties arising from claims, demands, suits, or proceedings (“Claims”) brought against you by such third parties alleging that the use of the Services as contemplated hereunder infringes the valid United States patent, copyright, trademark or trade secret of such a third party; provided, that you (a) promptly give written notice of any such Claim to LD; (b) give LD sole control of the defense and settlement of the Claim; and (c) provide to LD, at LD’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by LD, (ii) resulting in whole or in part in accordance from your specifications or data/content, (iii) that are modified or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (v) where your use is not strictly in accordance with this Agreement and all related documentation, or (vi) any breach of this Agreement by or fault of yours.

b. Your Indemnification. You will indemnify LD from all damages, costs, settlements, attorneys’ fees and expenses related to any and all Claims: (i) of infringement or misappropriation excluded from LD’s foregoing indemnity obligations, and/or (ii) arising out of your breach of Section 3.c.

7. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS, LOSS OF DATA OR COST OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH ANY AGREEMENT BETWEEN THE PARTIES, THE LD PLATFORM OR THE SERVICES PERFORMED THEREUNDER UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION LD SHALL ONLY BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY DIRECT DAMAGES IN AMOUNT EQUAL TO (A) ACTUAL DAMAGES OR (B) THE FEES PAYABLE TO LD FOR THE SERVICE(S) GIVING RISE TO THE CLAIM DURING THE CALENDAR YEAR IN WHICH THE EVENT OCCURS, WHICHEVER IS LESS.

8. CONFIDENTIALITY

“Confidential Information” shall mean (a) the content of this Agreement and any Service Order; (b) any statistics or other user data relating to the Service which specifically identify you, including Client Data; (c) any information designated in writing, or orally at time of disclosure, by the disclosing party as “confidential” or “proprietary” and/or (d) any non-public information disclosed by a party to the other hereunder. During the term of this Agreement, and for two (2) years following termination, neither party will, subject to the licenses granted in Section 3 above, use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) is independently developed by the receiving party without access to the other party’s Confidential Information; (b) becomes publicly known through no breach of this Section by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a legal or government authority. LD agrees that it shall maintain safeguards as necessary, in its reasonable judgment, to ensure that Client Data is not used or disclosed except as provided herein. For the avoidance of doubt, the parties agree that the provisions of this Section 8 hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure. LD shall implement the Service as “Anonymous” which means LD shall not store any of your data, and shall not have access to your data unless you choose to send it to LD.

9. MISCELLANEOUS

a. Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign or transfer this MSA in connection with a merger or acquisition provided the assigning party provides notice to the other party. This MSA shall be binding upon and shall inure to the benefit of a party’s authorized successors and permitted assigns.

b. Notices. All notices shall be made in writing and delivered (i) in person, (ii) by certified mail, return receipt requested, (iii) by traceable overnight delivery or (iv) by electronically confirmed facsimile or electronic mail, followed immediately by U.S. Mail to LD at 111 West Evelyn Ave., #210, Sunnyvale, CA 94086, Attn: Vice President of Sales, or to you at the address listed on the Service Order. A signed receipt shall be obtained where a notice is delivered in person. Notice will be effective upon delivery.

c. Force Majeure. Neither party shall be liable in any way for any delay or any failure of performance of a Service, or for any loss or damage related thereto, due to any cause beyond its reasonable control, including, without limitation, acts of nature, terrorism, civil unrest, war (whether declared or not) or the Government, earthquakes, fire, floods, degradation or disruption of any communication service not under a party’s control, loss of electrical power, congestion, failure or other inability to access the Internet or disruption in the financial markets or the banking system, provided prompt notice thereof is given to the other party.

d. Amendment. The terms of this MSA, as well as those set forth in any Service Order, may not be amended except in writing signed by both parties.

e. Publicity. LD may identify you as a user of the Subscription Services by referencing your name and logo, provided that such reference is consistent with your generally applicable branding guidelines and that LD will cease making such references after receiving written notice from you to do so.

f. Waiver. Any waiver of any provision set forth herein, or any Service Order shall be effective only if in writing and signed by both parties. Failure of either party to insist on performance of any term or condition, or to exercise any right or privilege, shall not be construed as a continuing or future waiver of such term, condition, right or privilege.

g. Governing Law. Any claims arising under or related to the provision of Services shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The parties hereby agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.

h. Severability. If any provision in this MSA or any related Service Order is held to be invalid or unenforceable, such provision shall be deemed deleted and the remaining provisions shall continue in full force and effect.

i. Entire Agreement. This MSA and any related Service Order constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter. In case of a conflict between this MSA and any Service Order, the Service Order shall prevail. In addition to the foregoing, this MSA, and any Service Order shall prevail over any additional or different provisions in any purchase order, acceptance notice, or other similar document issued by you, which provisions shall be of no force or effect.

j. Survival. The following Sections shall survive the termination of all Service Orders: Term/Termination, Intellectual Property, Warranty, Indemnification, Limitation of Liability, Confidentiality, Notices, Governing Law, Entire Agreement and Survival.

12. CONTACT

If you have any questions, complaints, or claims with respect to the Services, you may contact us at [email protected].

GENERAL TERMS AND CONDITIONS

(LEANDATA REFERRAL PROGRAM)

The LeanData Referral Program (“Program”) is governed by these General Terms and Conditions (the “Agreement”). By participating in the Program, You agree to be bound by, and to abide by, this Agreement. Terms used  herein are defined in Schedule A attached hereto. 

1. ENROLLMENT

This Agreement shall become effective upon the last date of accepting this Agreement, and the Company  shall then be considered as a participant in the Program (“Enrollment”). 

2. LEADS.

You will submit all Leads generated through any joint marketing activities to LeanData through  the Referral Submission Form found on the LeanData website (link). The Parties  will use commercially reasonable efforts to qualify Leads as potential LeanData customers and convert Leads into  Referred Clients that purchase the Services. 

3. EACH PARTY’S OBLIGATIONS.

a. You: 

i. will abide by the terms and conditions of this Agreement. 

ii. will actively participate in the Program, as defined herein. 

iii. will be solely responsible for all costs and expenses You may incur in connection with your  participation in the Program and Your performance under this Agreement. 

iv. will keep your Site updated with current and accurate information (including WHOIS information)  and, if required by LeanData for a reasonable business purpose, provide LeanData with a list of the sites You are using to drive traffic to LeanData. 

v. will ensure that the domain of Your username/email address listed with LeanData matches the URL submitted with Your Application. 

vi. will refrain from utilizing spyware, adware or parasiteware techniques for driving traffic. 

vii. will ensure Your contact information is current and that You check the Partner Portal  regularly for changes to the Program. 

ix. will refrain from gaining access to the Services for purposes of monitoring their availability,  performance or functionality or for any other benchmarking or other competitive purpose as set forth in the Terms of Service available at the following link and updated from time to time, 

x. will refrain from engaging in any marketing or advertising efforts that are confusing, misleading,  or otherwise dilute or disparage Our Marks, including but not limited to, using LeanData’s name,  trademarks, service marks or any derivations or variations thereof in (i) metatags, (ii) hidden text  or source code, or (iii) Your domain name or any other part of Your universal record locator (URL). 

xi. will comply with all laws, rules, regulations and ordinances relating to the sending of commercial  emails, including, but not limited to, the Federal CAN-SPAM Act of 2003. 

xii. except as expressly authorized by this Agreement, You shall not use any of Our trademarked terms, either alone or in conjunction with or as part of any other word or name, in any advertisement, publicity or promotion on Your behalf, to express or imply any endorsement by LeanData or any services provided by You. 

xiii. upon request, You shall remove any Image from Your Site and replace it with a new Image provided by LeanData. LeanData may add codes (“Partner Codes”) to the Images to identify You as the origin of a referred party. You agree to not modify the Partner Codes at anytime, as doing so will not allow proper reporting of traffic sent through such Images.

xiv. may use the material made available to You by LeanData for Your participation in the Program, as described herein. If You wish to create, publish, distribute, or permit any other material that makes reference to LeanData, You must first obtain LeanData’s express written consent, which may be granted or withheld in LeanData’s sole discretion. 

b. LeanData: 

i. will make training available to You, in LeanData’s sole discretion and at a time and date mutually agreed upon by the parties, regarding the use, operation, and support of the Services. You will use commercially reasonable efforts to ensure that Your marketing and sales staff undergo any applicable training available within 30 business days of Your Enrollment. 

ii. will make available to You a variety of graphic and textual images (the “Images”) that serve to identify Your Site as a member of the Program and that will establish hypertext links from Your Site to LeanData’s Site (“Links”) and for Your use in marketing the Services. You may, subject to the terms and conditions of the Agreement, display Links as often and in as many areas on Your Site as You desire; however, the Links must land on the page on LeanData’s Site designated by LeanData. You shall not use Images or Links to direct traffic to any other LeanData site or page. You shall cooperate fully with LeanData in establishing and maintaining Links. You may display on Your Site only the Images provided to You by LeanData, which may be replaced from time to time in LeanData’s sole discretion. 

4. ORDER PROCESSING AND REFERRAL COMMISSION

a. LeanData will process sales orders of LeanData Products and Services placed by Referred Clients. LeanData  reserves the right to reject orders that do not comply with any requirements that LeanData may establish periodically. LeanData will be responsible for all aspects of such order processing and fulfillment. Among other things, LeanData will prepare order forms, process payments, cancellations, and handle customer service for Referred Clients. LeanData will track the sales You solicit and that are made to Referred Clients who purchase LeanData Products and will make available to You reports summarizing this sales activity. The  form, content, and frequency of the reports may vary from time to time in LeanData’s sole discretion. If applicable, and except as may otherwise be provided in Your Program terms, You will: 

i. process all orders from End Users for the purchase of the Solution; and 

ii. directly invoice and collect payment from all End Users for all fees and expenses for Your Solution. You agree that LeanData is not responsible for fulfillment of Your Solution. 

b. During the Term of this Agreement, you are eligible to receive commissions as outlined herein (“Referral  Commissions”). LeanData reserve the right to change the Referral Commissions from time to time and in LeanData’s sole discretion, and any such change will be communicated to You in accordance with the notice provisions of this Agreement. You will be paid based upon the rate in effect on the day the Referred Client pays LeanData for the Services. Referral Commission is equal to 20% of a New Business opportunity’s Partner  Sales Credit. Partner Sales Credit is equal to the lesser of the opportunity’s first-year Annual Recurring  Revenue (ARR) or first-year Invoice Amount. Referral Commissions calculation will exclude Annual Recurring Revenue (ARR) for Cloudingo products. 

c. In order to be eligible for a Referral Commission: 

i. You must provide LeanData the Referred Client’s contact information through the Partner Portal, and/or another means as defined by LeanData Partner Team in its sole discretion; 

ii. such Referred Client has not been referred to LeanData by another referral partner for the same LeanData Services, or has directly signed up with LeanData for the same LeanData Products or Services, at the time You submit information on the Referred Client to LeanData; 

iii. LeanData must accept the Referred Client as a LeanData customer; 

iii. the Referred Client must order Services from LeanData and LeanData must receive payment from the Referred Client for the entire amount due for such ordered Services; and 

iv. the Referred Client must not have transferred, been acquired or otherwise obtained from another Partner unless pursuant to an assignment, sale of the assets, or purchase of the business of another Partner. 

d. Referral Commissions payable to You hereunder will be paid on a monthly basis at LeanData’s sole discretion,  within 30 days of the close of the calendar month for Referral Commissions earned the previous month  (“Payment”). These Payments will only include payment for funds actually collected by LeanData from Referred Clients who have paid their entire amount due on their invoice and whose right to a refund per the  terms of the Terms and Conditions has expired. Any funds collected after the reporting period will roll into subsequent payments. If a Referral Commission is greater than $10,000, your payment will be aligned with the payment terms of the referred customer. LeanData reserves the right to accrue Referral Commissions until the total Payment due meets a threshold, e.g. one thousand dollars ($1,000.00) prior to making payment to You, in LeanData’s sole discretion. In the event that this threshold is enforced by LeanData and is  still unmet by the end of a calendar year, LeanData will make Payment of Referral Commissions to You for the  prior year by the last business day of the year. Payments are subject to write-offs, deductions, or offsets for  any amounts You owe to LeanData. Any variance between the amount paid and the amount of the applicable Referral Commission for a given reporting period will be explained in a report provided by LeanData along with payment. If LeanData has remitted payment to You, and such previously paid amount shall be deemed by LeanData to be in error, unless You provide documentation to support the Payment, LeanData may deduct such previously paid amount from subsequent payments to You. 

e. If any refunds are issued to Referred Clients(“Refunded Clients”) because e.g. they are unable to use the Services or for any other reason or are refunded as expressly provided in the Terms and Conditions, and Referral Commissions have been paid to You for such Refunded Clients’ orders, then future Referral Commission payments to You will be offset by the amount of any such Referral Commissions owed to You for  Refunded Clients. If no Payments are owed to You by LeanData at the time a refund is made to a Refunded Client, then You will refund to LeanData the amount of any such Referral Commissions paid to You for Refunded Clients within thirty (30) days of the date of an invoice. You or LeanData must assert a claim, and provide written notice thereof, for any unpaid, underpaid or overpaid Commission within the calendar year in  which the event giving rise to the claim occurred. Following the calendar year, LeanData and You waive any and all right to assert a claim for unpaid, underpaid or overpaid Commission. 

f. If You are eligible to receive Commission according to the terms of this Agreement, You agree that you are not eligible to receive Commission under any other LeanData Partner Program for the same order of Services. 

5. POLICIES AND PRICING

Purchasers of LeanData Property and Services through the Program are deemed to be LeanData customers  (“Referred Clients”). Purchasers of Your products and services through the Program are deemed to be Your customers. Although LeanData and You may have identical customers, each party’s policies and operating procedures concerning each party’s customer orders, customer service and product and service sales shall apply.  LeanData and You shall own and retain all right, title and interest in all names, address and other identifying  information of Customers who visit Your or LeanData’s Site, as applicable (“Customer Information”). You may not  include price information in Your product descriptions of LeanData Products without LeanData’s explicit consent.  You shall refer all questions, requests and queries regarding LeanData Property to LeanData.

6. LICENSES 

a. LeanData License. While You are a member of the Program, LeanData may grant You up to five revocable (in accordance with the Terms and Conditions), non-exclusive, non-transferable, non-sublicensable licenses to use  LeanData exclusively for development and testing, if applicable, and marketing purposes. LeanData may, but is  not obligated to, offer such license at a discount from its standard pricing. Marketing purposes means any and  all activities that are designed for the purpose of soliciting Leads, including but not limited to marketing demonstrations. Notwithstanding anything to the contrary in the Terms and Conditions, You acknowledge and  agree that: (i) this License is provided “AS IS,” “WITH ALL FAULTS,” and without any warranty of any kind; (ii) You use this License at Your own risk; and (iii) LeanData shall not be liable to You, or any third party, in any way  for any losses, damages, costs, or other expenses arising from Your or any third parties’ use of this License. 

b. No Re-engineering. You agree not to use LeanData Confidential Information to create or build on behalf of  Yourself, Your Affiliates or third-parties any on-line services, product, computer software or documentation that is substantially similar to any of the LeanData Property. You agree not to: (i) reverse assemble, reverse compile, or build a product using similar ideas, features, functions or graphics as the Services, Partner Portal,  any of the LeanData Property or LeanData Confidential Information; (ii) create derivative works of LeanData’s  Services, any of the LeanData Property or other LeanData Confidential Information; and (iii) otherwise translate the Services, Partner Portal, any LeanData Property or other LeanData Confidential Information.  LeanData owns all rights, title and interest (including, without limitation, all intellectual property and proprietary rights) in and to the LeanData Property. You shall have no rights to the LeanData Property other than as expressly set forth in this Agreement. All rights not expressly granted to You in this Agreement are reserved by LeanData and its licensors. 

c. License of Marks and Logos. During the Term of this Agreement, each party grants to the other party a limited,  non-exclusive, non-transferable, revocable and worldwide right to display its Marks solely to market and promote the relationship contemplated by this Agreement. Either party may revoke the foregoing license at any time by giving the other party 30 days’ prior written notice; provided that upon such termination, the non terminating party shall be relieved of any obligation under this Agreement requiring the use of the terminating  party’s Marks. Unless revoked sooner in accordance with the immediately preceding sentence, the foregoing  license terminates automatically upon the effective date of the termination of this Agreement. Each party acknowledges and agrees that: (i) it will use the other party’s Marks in a lawful manner and only as permitted  hereunder; (ii) it will use the other party’s Marks in strict compliance with all formats, guidelines, standards and other requirements prescribed by such other party; (iii) the other party’s Marks are and shall remain the sole property of such other party (or its licensors); and (iv) nothing in this Agreement confers any right of ownership in any Marks of the other party and all use thereof inures to the benefit of such other. 

d. License to the Solution and Integration, if applicable.  

i. You own and shall own any and all rights, title and interest (including all intellectual property and proprietary rights) in and to Your Solution, Integration and Work Product, and any modifications thereto or derivative works thereof, as applicable; except that LeanData retains all ownership rights, title and interest (including all intellectual property and proprietary rights) in and to any LeanData Property and LeanData Confidential Information (in whole or in part) incorporated into or in combination with the Integration or Work Product. Except as otherwise provided in this Agreement, LeanData does not own any rights in Your Solution, Work Product, but shall have the license rights as set forth in this Agreement. All rights not expressly granted to LeanData in this Agreement are reserved by You and Your licensors. 

ii. You hereby grant to LeanData a non-transferable (except as permitted under this Agreement), non exclusive and sublicensable right and license to: (A) sell, if applicable, and demonstrate the Integration to End Users and users of Your Solution; (B) test the functionality of the Customer  Solution to ensure that the Customer Solution is functional and compatible with LeanData Property; and (C) use the Customer Solution and the Work Product to satisfy Our other obligations under this Agreement and the Terms and Conditions with End Users. Except to the extent required by LeanData to perform its rights or obligations under this Agreement, LeanData agrees not to reverse assemble, reverse compile, build a product using Company Confidential Information.  

e. Feedback. If either You or LeanData elect to communicate to the other party suggestions for improvements  to a Program, Development Account, Marks, the Services, Your Solution or any other products or services of such party (collectively, “Feedback”), the party to whom such Feedback is given shall own all rights, title, and  interest (including, without limitation, all intellectual property and proprietary rights) in and to the same and  shall be entitled to use the Feedback without restriction. 

7. MODIFICATION

Except as may otherwise be provided in Your Program terms, LeanData may modify any of the terms and  conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or  modifications to the Agreement on the LeanData Site, sending You an email, or by otherwise  communicating the change to You. Modifications may include, but are not limited to, changes in the scope of  available referral fees, referral fee schedules, commissions, payment procedures, policies and Program rules. IF  ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AS  PROVIDED IN YOUR PROGRAM TERMS, SUBJECT TO THE WIND DOWN PROVISION OF YOUR PROGRAM TERMS.  YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR NOTICE OF SUCH CHANGE TO YOU WILL  CONSTITUTE BINDING ACCEPTANCE BY YOU OF THE CHANGE. 

8. RELATIONSHIP 

You and LeanData are independent contractors, and nothing in this Agreement will create any partnership (for legal  purposes, notwithstanding the use of the word “partner”, the parties shall not be deemed a “partnership” under  applicable law), joint venture, agency, franchise, sales representation, or employment relationship between the  parties. The parties hereto expressly understand and agree that each is an independent contractor in the  

performance of its obligations under this Agreement, is solely responsible for all of its employees, and agents, and  its labor costs and expenses arising in connection therewith. As an independent contractor, each party is  

responsible for its own United States, state, or foreign income taxes and any other tax liabilities. Neither party shall  be deemed to be the employee, agent nor is legal representative of the other party for any purpose whatsoever,  and neither party granted any right or authority to assume or create any obligations for or on behalf of the other.  You will not make any statements, whether on Your site or otherwise, that reasonably would contradict anything in  this Section. 

9. CONFIDENTIALITY OBLIGATIONS

Each party acknowledges that confidential information (including, but not limited to, trade secrets and confidential technical, financial and business information) (collectively, “Confidential Information”) may be exchanged between the parties. Each party shall use no less than the same means it uses to protect its similar  confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other party. Each party agrees  that it will not disclose or use the Confidential Information of the other party except for the purposes of this Agreement and as authorized herein. The receiving party will promptly report to the disclosing party any unauthorized use or disclosure of Confidential Information that it becomes aware of and provide reasonable  assistance in the investigation and prosecution of any such unauthorized use or disclosure. Notwithstanding anything to the contrary herein, the rights and obligations set forth herein may be enforced by legal action seeking  injunctive relief. Confidential Information shall not include information that is: (a) already known by the receiving  party without an obligation of confidentiality; (b) publicly known or becomes publicly known through no unauthorized act of the receiving party; (c) rightfully received from a third-party without any obligation of confidentiality to the disclosing party; (d) independently developed by the receiving party without use of the  Confidential Information of the disclosing party; (e) approved by the disclosing party for disclosure; or (f) required  to be disclosed pursuant to a subpoena, or requirement of a governmental agency or law so long as the receiving  party provides the disclosing party with notice prior to any such disclosure and takes all reasonable steps to maintain the information in confidence. 

These confidentiality obligations shall remain in effect with respect to the other party’s Confidential Information after the expiration or termination of this Agreement until such information is no longer deemed  within the definition of Confidential Information. 

The parties acknowledge that its breach of the foregoing confidentiality obligations would cause the other party great and irreparable injury for which there would be no adequate remedy at law. Accordingly, the  disclosing party shall be entitled to pursue injunctive relief or a protective order and any other relief available  under this Agreement, at law or in equity. The disclosing party shall also receive all other relief awarded by the court. 

10. EMBARGOED NATIONS & SPECIALLY DESIGNATED NATIONALS

The United States controls the export of products and information. You agree to comply with such restrictions and  to not export or re-export the materials (including software) to countries or persons prohibited under the export  control laws. By participating in the Program, You agree that You are not in a country where such export is prohibited or are not an entity to which export is prohibited. You are responsible for compliance with the laws of  Your local jurisdiction with regard to the import, export, or re-export of the materials (including software). 

11. TERM 

The term of this Agreement will begin upon Your Enrollment and will end when terminated by either party (the  “Term”). Either You or LeanData may terminate thisAgreement at any time, with or without cause, by giving the  other party written notice of termination. Upon the termination of this Agreement for any reason, You will immediately cease use of, and remove from Your Site, all links to LeanData’s Site, LeanData’s Marks and any Marketing Materials that LeanData provided to You as a referral partner. Upon termination, all licenses granted  hereunder shall terminate. You are eligible to earn Referral Commissions only for orders that are placed by Referred  Clients during the Term, and Referral Commissions earned through the date of termination will remain payable only  if the orders are not canceled or returned. LeanData may withhold Your final payment for a reasonable time to ensure that the correct amount is paid. 

12. INDEMNIFICATION

For the purposes of this Agreement and except to the extent that a party negligently or intentionally caused indemnifiable losses, the parties will defend and indemnify the other against any third-party claim to the extent  that such claim arises from the breach of its representations and warranties or to the extent that any Service,  Integration, or Customer Solution provided hereunder, infringe or misappropriate any trademark, copyright, trade  secret, or patent right of such third party. Neither party will be required to indemnify the other party unless the  party seeking indemnification: (i) provides prompt written notice of a claim to the other party; (ii) cedes sole  control of the defense and all related settlement negotiation to the other party, subject to the indemnified party  being released of all claims; and (iii) provides the other party with all necessary assistance in the defense, at the  expense of the indemnifying party. Neither party will have defense and indemnity obligations for any liabilities  arising from the modification, combination or adaptation of the Service, Integration provided hereunder where  such infringement would not have occurred but for such modification, combination or adaptation. 

13. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR INDIRECT, SPECIAL, EXEMPLARY  OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORSEEABLE, OR FOR ANY LOSS OF REVENUE,  GOODWILL, PROFITS, DATA, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES, INTERRUPTION IN USE OR  AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, EVEN IF ADVISED OF THE  POSSIBILITY OF SUCH DAMAGES, ARISING IN CONNECTION WITH (i) THIS AGREEMENT; OR (ii) THE PROGRAM, OR  (iii) YOUR PARTICIPATION IN THE PROGRAM; OR (iv) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT,  INDEMNITY, OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OR OTHERWISE, INCLUDING  

MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE  OR WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY  EXCEED THE FEES ACTUALLY PAID BY LEANDATA TO YOU UNDER THESE TERMS IN THE 12-MONTH PERIOD  

IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH A CLAIM, REGARDLESS OF WHETHER ANY ACTION OR  CLAIM IS BASED IN CONTRACT, MISREPRESENTATION, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT  OR OTHERWISE. THE FOREGOING DOES NOT APPLY TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS NOR TO  ANY INFRINGEMENT OR MISAPPROPRIATION BY A PARTNER OF ANY OF THE OTHER PARTY’S INTELLECTUAL  PROPERTY RIGHTS.  

14. WARRANTIES

a. Each party represents and warrants to the other that: (1) no consent of any person or entity who is not a  party to this Agreement is necessary in order for this Agreement to be fully and completely binding on the parties and their permitted successors and assigns; (2) it is the owner or authorized licensee of the application, software, technology, intellectual property, Marks and other proprietary information and property licensed to the other party under this Agreement; (3) it has not falsely identified itself nor provided false information to gain access to, or use of, the other party’s application, software, technology, Confidential Information and proprietary information; and (4) it will comply with all applicable laws. 

b. You represent that the content of Your Site and any domain names associated with Your Site and the  Customer Solution, if applicable, does not (1) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity of privacy; (2) violate any applicable law, statue, ordinance or regulation; (3) contain defamatory or libelous material; (4) violate any laws regarding unfair competition, anti-discrimination, or false advertising; or contain viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines. 

c. You represent that You have and comply with a privacy policy for Your customers consistent with federal  and state laws and regulations. 

d. EXCEPT FOR THE ABOVE REPRESENTATIONS AND WARRANTIES, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In addition, LeanData makes no representation that the operation of the LeanData Site will be uninterrupted or error free, and LeanData will not be liable for the consequences of any interruptions or errors. The warranties in this Agreement are for the Parties’ sole benefit and may not be extended to any other person or entity. 

e. LeanData makes no warranty or guarantee of any kind with respect to the Program, the Partner Portal, the  licensed materials or the LeanData Site as far as reliability, stability, quality or dependability. As such, LeanData is not responsible for any loss or damage incurred directly or indirectly due to the use of the Program, the LeanData Site, LeanData Property, Services, or any other facet of the system. This shall include, but is not limited to, any system malfunction, period of being inoperative or unavailable, loss of data or discontinuation of service, or other inconveniences. 

15. NON-EXCLUSIVITY

Either party may, at any time, enter into relationships or arrangements with various third parties on terms that  may be similar to, or materially different from, those contained in this Agreement. You acknowledge that LeanData has entered and will enter into similar arrangements with possible competitors of Yours and companies  in the same line of business as You. 

16. FORCE MAJEURE

Neither party will bear any responsibility or liability to the other party arising out of any delay or interruption of its  performance of obligations under this Agreement due to any event or condition beyond the reasonable control of the party delayed (collectively, “Force Majeure Condition”). Any party claiming that a Force Majeure Condition has  arisen shall immediately notify the other party of the same and shall act diligently to overcome and remove the  effects of the event of the Force Majeure Condition. Such party shall notify the other party immediately when  such Force Majeure Condition has ceased. 

17. GOVERNING LAW

This Agreement is governed by and interpreted in accordance with the internal laws of the State of California and,  where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each  case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. Any disputes, actions, claims or causes of action  arising out of or in connection with this Agreement, the Services or the Program will be subject to the exclusive  jurisdiction and venue of the state and federal courts located as follows: If You are the defendant, in the state and  county courts located in the state and county of Your corporate headquarters; if We are the defendant, in the  state and county courts located in Santa Clara County, California, USA, and each party waives any claim that a  more convenient forum can be found. 

18. NOTICES 

All notices from LeanData to You under this Agreement shall be sent by email or posted on the LeanData Site, in  LeanData’s sole discretion. It is Your sole responsibility to keep Your contact information current with LeanData  and to check the Partner Portal regularly. You will be deemed to have received any email sent to Your account  email address upon LeanData’s sending it, whether or not You actually receive it. You will be deemed to have  received notice via the Partner Portal within five (5) business days of such posting.  

All notices from You to LeanData must be in writing, to the attention of the Legal Department at the corporate  headquarters address listed on the LeanData Site at the time of such notice. Such notices will be deemed to have  been received by LeanData: (a) when received, if hand delivered; (b) three (3) business days after being sent by  certified mail, postage prepaid, and return receipt requested; (c) the next business day, when sent by reliable  commercial overnight delivery service providing receipt of service. 

19. MISCELLANEOUS 

Neither party may assign or transfer this Agreement without the prior written consent of the other party, except  that either party may assign or transfer without such consent to a successor to all or substantially all of its assets  or business, provided that You must notify LeanData in writing within 30 days of any assignment, and any assignee  of Yours must agree in writing to assume and be bound by all of Your obligations under this Agreement. In the  event that You merge with or acquire another Program partner, only the successor to the assignment shall be  entitled to claim a Referred Client whom may been provided to LeanData by You and one or more other parties to  the assignment. 

The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement supersedes all proposals, oral or written, all negotiations,  conversations, or discussions between or among parties relating to the subject matter of this Agreement and all  past dealing or industry custom. No changes or modifications or waivers are to be made to this Agreement unless  evidenced in an authorized writing. In the event that any provision of this Agreement shall be determined to be  unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this agreement  shall otherwise remain in full force and effect and enforceable. 

The parties have generated this Agreement through equal negotiations. This Agreement should not be interpreted  or construed more favorably or unfavorably as to any party. The headings in this Agreement are for the convenience of organization and reference. They are not intended by the parties to have any relevance in the  interpretation of this Agreement. Each party acknowledges that it has reviewed this Agreement in its entirety, and  that each party understands the same. Each party further acknowledges that it has had the opportunity to consult  with independent counsel about this Agreement to the extent the party desires.  

SCHEDULE A 

DEFINITIONS 

Unless otherwise defined in the Agreement, capitalized terms used in the Agreement shall have the meaning set forth below: 

1. “Affiliate” means an entity that controls, is controlled by or is under common control with a party to this Agreement  at any time during the Term of this Agreement, where control means, for purposes of this definition, a direct or  indirect ownership or control of more than 50% of the voting interests of the subject entity. 

2. “LeanData,” “We,” “Us,” or “Our” means LeanData, Inc. a Delaware corporation, and its Affiliates, and their respective  employees, representatives, partners, owners, managers, and their respective successors and assigns. 

3. “LeanData Add-On Services” means LeanData support plans, training services, among others. LeanData Add-On  Services do not include any other Professional Services offered by LeanData or any of Our Affiliates. 

4. “LeanData Product” means any LeanData Property, LeanData Add-On Services, and other LeanData product or service. 

5. “LeanData Property” means all products and services offered by LeanData and their underlying technology, code,  content and related intellectual property and proprietary rights thereof. 

6. “End User” means an end user of the Solution. 

7. “Integration” or “Integrate” means development of an interface that enables the LeanData Property and the Solution  to work together. 

8. “Leads” means complete and up-to-date contact details of third parties who express an interest, or may have an  interest in purchasing the Services. 

9. “LeanData’s Site” means www.leandata.com or any other URL (Uniform Resource Locator) on the World Wide Web  owned by LeanData. 

10. “Mark” means any trade names, trademarks, marks and logos owned by a party. 

11. “Partner Portal” means an online web page managed by LeanData with information about LeanData Property,  currently located on LeanData’s Site that is accessible to You upon LeanData’s approval of You as a member of the  Program and accessible through Your unique identifiers, established as a username and password. 

12. “Professional Services” means LeanData’s consulting or managed services, which includes, without limitation,  additional implementation or installation work beyond that which is included in a Referred Client’s standard services. 

13. “Referred Client” means a party, other than You, including its Affiliates, employees, representatives, partners, owners,  managers, and their respective successors and assigns, that becomes a new LeanData customer after being referred  to LeanData by You, or in the case of Solution Partners, another third party, through the Program, entered into Our  CRM system and then purchases Services from LeanData and pays LeanData for such Services. A party who purchases  Services from LeanData for the first time will be counted as a Referred Client only once, regardless of whether they  make multiple purchases through various channels or partners. 

14. “Services” means the services offered by LeanData that are made available through the Program. 

15. “Solution” means all versions relevant to this Agreement of the business or financial software and applications such as  Enterprise Resource Planning (ERP), Customer Relationship Manager (CRM), or ecommerce platform, including all  updates, modifications and amendments thereto. 

16. “Solution Partner” means an entity that has entered into an agreement with LeanData to integrate such entity’s  Solution for use with an LeanData Product. A Solution Partner and LeanData are in an arm’s length relationship only  and are not “partners,” as that term is legally defined. 

17. “Your Company,” “You,” and “Your” means the party that participates in the Program by applying for the Program, being accepted by LeanData, and agreeing to abide by the Agreement, and its Affiliates, and their respective  employees, representatives, partners, owners, managers, successors and assigns.