Terms and Conditions

1. DEFINITION OF TERMS

The following terms have the following meanings:

1.1. “Customer Data” means any information, data, text, logos, pictures, or other materials or content provided by Customer in connection with Customer’s use of the Proprietary Items.

1.2. “Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with this Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully obtained by the other Party from independent sources free from any duty of confidentiality. Confidential Information shall include Customer Data as well as the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the specific services purchased by Customer.

1.3. “Documentation” means Akoonu’s on-line documentation and/or user manuals, as updated and amended from time to time.

1.4. “Feedback” means feedback, suggestions, improvements, and recommendations regarding the Proprietary Items.

1.5. “Order” means and online order conducted through the Akoonu website or Akoonu’s standard order form executedby both Parties, substantially in the form attached as Schedule A to this Agreement, or an order in another form that is executed by both Parties and references this Agreement.

1.6. “Proprietary Items” means, collectively, the Services and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Documentation, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services or Documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the Services or Documentation, all derivative works based upon any of the foregoing, and all copies of all of the foregoing.

1.7. “Salesforce Platform” means the hosted platform-as-a-service made available by Salesforce.

1.8. “Salesforce Org” means a single customer account on the Salesforce Platform.

1.9. “Services” means the limited access and use rights to the Akoonu’s proprietary Akoonu Pipeline Reviews and/or Akoonu Forecasting applications currently available on the Salesforce Platform, as set forth in the applicable Order.

1.10. “Subscription Term” means the duration of Customer’s right to receive, access, and use the Proprietary Items, as set forth on an Order (the “Initial Subscription Term”) and any subsequent Renewal Subscription Terms. In the event that such duration is not specified on the applicable Order, the Initial Subscription Term shall be twelve (12) months. The Subscription Term shall automatically renew for a term that is equal to twelve (12) months, unless one Party provides the other Party at least thirty (30) days written notice of its intent to not renew the Subscription Term (“Non-Renewal Notice Deadline ”) or enter into an alternative Order that replaces and supersedes the existing Order (a “Renewal Subscription Term”).

1.11. “Trademarks” means Akoonu’s trademarks, trade names, logos, and designations.

1.12. “User” means an employee, agent or representative authorized by Customer to a Service, subject to any limitations or restrictions set forth on an Order.

2. SUBSCRIPTION RIGHTS AND OBLIGATIONS

2.1. Subscription Rights. Subject to the terms and conditions of this Agreement, during the applicable Subscription Term, Akoonu grants to Customer and its Authorized Users a non-exclusive, non-transferable (except in connection with a permitted assignment) license to use and access the Services in accordance with the Documentation and subject to the limitations set forth on the applicable Order.

2.2. Akoonu Obligations. Akoonu shall provide to Customer standard support for the Services at no additional charge in accordance with Akoonu’s standard support policies. Customer may request support services by contacting Akoonu solely through the method set forth on the applicable Order. Akoonu shall have no obligation to provide any additional services to Customer, including but not limited to, training, implementation, or any support or maintenance in excess of Akoonu’s standard support policy, unless Customer purchases such services as set forth in an Order. From time to time in accordance with Akoonu’s generally applicable procedures, Akoonu may make available to Customer updates, upgrades, enhancements, and error corrections to the services that Customer has purchased at no additional charge when such updates, upgrades, enhancements and error corrections are generally made available to its other Customers at no additional charge.

2.3. Customer Responsibilities. Customer shall (a) be responsible for Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Akoonu promptly of any such unauthorized access or use, (c) use the Services only in accordance with this Agreement and the Documentation and in compliance with all applicable laws and regulations, and (d) reasonably cooperate with Akoonu as necessary for Akoonu to perform its obligations under this Agreement.

2.4. Restrictions. Customer shall not (and shall not permit any Authorized User to) (a) make the Services available to any third party other than Authorized Users, (b) resell, lease, distribute, transfer or otherwise make available the Services on a time-sharing or service bureau basis, (c) use the service to store or transmit material that is infringing, libelous, disparaging, or is otherwise unlawful or tortious material, or to store or transmit material in violation of any third-party’s proprietary or privacy rights, (d) use the Services to promote any unlicensed, unfair, or illegal classes or activities or for deceptive or illegal purposes, (e) use the Services to store or transmit malicious code, (f) use or access the Services in any way that potentially harms, harms, or otherwise threatens the reputation, integrity, performance, or availability of Akoonu, the Salesforce Platform, the Services or any data therein, (g) attempt to gain unauthorized access to the Services, or Salesforce Platform, (h) decompile, disassemble, or reverse engineer the Services, in whole or in part, (i) copy a Service or any part, feature, function or user interface thereof (including, without limitation, into a Salesforce organization or tenant not authorized in writing by Akoonu or (k) use or access any Proprietary Items to create (or have created) a competing or similar service. Akoonu may suspend, restrict or prohibit use or access to the Services if Akoonu suspects such use or access is a breach of this Agreement, does not comply with the Documentation or the limitations set forth in an Order, or is otherwise objectionable or threatens the reputation of Akoonu, the Services, or the Salesforce Platform.

3. PAYMENTS

3.1. Fees and Expenses. Customer shall pay to Akoonu, without offset or deduction, the fees and expenses as determined under any Orders and this Agreement. Akoonu reserves the right to increase the fees each year, but must provide notification of such increases at least ten (10) days in advance of the Non-Renewal Notice Deadline. All such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Akoonu.

3.2. Taxes. The fees and other amounts payable by Customer to Akoonu do not include any taxes of any jurisdiction that may be assessed or imposed upon the Proprietary Items, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Akoonu’s net income. Customer shall directly pay any such taxes assessed. Customer shall promptly reimburse Akoonu for any taxes payable or collectable by Akoonu (other than taxes based upon Akoonu’s net income). If Customer has provided Akoonu with proof of its tax exempt status, then, in the event that Customer’s tax exempt status should become altered, Customer shall be obligated to notify Akoonu immediately of any such modification and Customer shall become liable for all taxes as set forth above. In the event Customer fails to notify Akoonu of any such change, Customer shall be liable for payment of any tax related penalties or interest assessed against Akoonu or Customer as a result of such Customer failure.

3.3. Payment Terms. Akoonu may accept and process payment (including renewals) from Customer by credit card, wire transfer, ACH, or check, as mutually agreed. All fees shall be due Net 30 days from the date of any Invoice. If any Customer payment is past due, interest at the rate of twelve percent (12%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue. All fees and other amounts paid by Customer under this Agreement are non-refundable except as otherwise set forth in this Agreement. All dollar amounts referred to in this Agreement are in United States Dollars.

3.4. Suspension. In the event that Customer’s account is more than thirty (30) days overdue on any payment for any reason, Akoonu shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Proprietary Items, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.

4. WARRANTY AND LIMITATIONS OF LIABILITY

4.1. Warranty. Akoonu represents and warrants that any professional services performed will be performed in a professional andworkmanlike manner consistent with generally accepted industry standards.

4.2. Warranty Disclaimer. THE PROPRIETARY ITEMS ARE PROVIDED “AS IS” AND AKOONU MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, Akoonu does not represent or warrant that: (a) the Proprietary Items will meet any expectations or specifications of Customer; (b) the operation of the Proprietary Items will be uninterrupted or error-free; (c) the use of the Proprietary Items will not result in a loss of Customer; or (d) the use of the Proprietary Items will not expose the Customer’s hardware or networks to additional security risk. CUSTOMER IS SOLELY RESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL CUSTOMER ATA UPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES.

4.3. Damage Limitation. IN NO EVENT WILL AKOONU BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, LOST REVENUE, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDERS OR THE USE OF THE SERVICES OR DOCUMENTATION BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Akoonu’s total liability under this Agreement, including all Orders, shall under no circumstances exceed the fees actually paid by the Customer to Akoonu in the twelve (12) months preceding the event giving rise to the claim of liability. Akoonu’s total liability under any particular Order shall under no circumstances exceed the fees actually paid by the Customer to Akoonu pursuant to such Order in the twelve (12) months preceding the event giving rise to the claim of liability.

4.4. Other Limitations. The warranties made by Akoonu in this Agreement, and the obligations of Akoonu under this Agreement, run only to Customer and not to any Authorized User or other third party. Under no circumstances shall any Customer affiliate, Customer client, contractor, or any other third party be considered a third party beneficiary of this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Customer more than twelve (12) months after Customer first has knowledge of the basis for the action or claim. Customer and Akoonu have freely and openly negotiated this Agreement, including the pricing, with the knowledge that the liability is to be limited in accordance with the provisions of this Agreement.

5. CONFIDENTIALITY

All Confidential Information of a Party (“Disclosing Party ”) in the possession of the other (“Receiving Party”), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to implement or perform this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access and who are bound by obligations of confidentiality at least as protective as those herein. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section.

6. CUSTOMER DATA AND PROPRIETARY ITEMS

6.1. Customer Data.

a) Customer acknowledges that all Customer Data is the sole responsibility of the Customer. Customer, and not Akoonu, is entirely responsible for all Customer Data that Customer uploads, posts, transmits or otherwise makes available through the Services.

6.2. Title and Ownership.

a) All right, title, and interest in and to the Customer Data (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Customer.

b) All right, title, and interest in and to the Proprietary Items and Trademarks (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Akoonu and Akoonu reserves all rights not expressly granted by this Agreement. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties), the results of any professional services performed, and any Feedback relating thereto will be solely and exclusively owned by Akoonu. Customer hereby assigns to Akoonu any rights, title and interest, including all intellectual property rights in any Feedback, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Customer or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Proprietary Items. Customer will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Akoonu’s rights described above and the intent of this Section.

7. INDEMNIFICATION

7.1. By Akoonu. Akoonu shall defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Services infringe any U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law, and Akoonu will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer giving Akoonu (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Akoonu may reasonably request, at Akoonu’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Akoonu shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) Customer Data or the combination, operation, or use of the Services with products, services, deliverables, materials, technologies, business methods or processes not furnished by Akoonu; (2) modifications which were not made by Akoonu; or (3) Customer’s breach of this Agreement or use of the Services other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that Akoonu believes that such a claim is likely, Akoonu may, at its option (i) modify or replace the Services so that it becomes non-infringing; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Orders) on written notice to Customer and refund to Customer any pre-paid fees for Services not provided. The obligations set forth in this Section shall constitute Akoonu’s entire liability and Customer’s sole remedy for any infringement or misappropriation.

7.2. By Customer. Customer shall indemnify, hold harmless, and, at Akoonu’s option, defend Akoonu from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, losses, and liabilities arising out of any (a) IP Exclusions or (b) Customer Data (including without limitation any third party claim that any Customer Data is false, misleading, disparaging, infringing or a misappropriation, as applicable, of any intellectual property rights of a third party). Akoonu agrees to give Customer: (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim, unless such settlement completely and forever releases Akoonu with respect thereto or unless Akoonu provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Akoonu, Akoonu mayparticipate in such defense at its own expense by counsel of its choice.

8. TERMINATION

8.1. Either Party may terminate this Agreement immediately on giving notice in writing to the other Party if the other Party:

(a) commits a material breach (including any non-payment of fees due) and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or

(b) (i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations; provided, however, if the non-terminating party provides adequate assurances regarding its ability to continue performing the other Party may not terminate.

8.2. Upon any termination or expiration of this Agreement, whether under this Section or otherwise, Customer shall discontinue all access and use of all Proprietary Items, and each Party shall promptly return to the other Party any Confidential Information of such other Party then in such Party’s possession or control.

8.3. Customer shall remain liable for all payments due to Akoonu with respect to the period ending on the date of termination or expiration. For any termination other than a termination for good cause by Customer in accordance with Section 8.1, the balance of all remaining subscription fees relating to the then current Subscription Term will be due and payable. The provisions of Sections 1, 2.4, 2.5, 3.2, 3.3, 4, 5, 6, 7, 8.2, 8.3, and 9 shall survive any termination or expiration of this Agreement.

9. OTHER PROVISIONS

9.1. Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.

9.2. Assignment. Customer may not, without Akoonu’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, any Order, or any of its rights or obligations under this Agreement or any Order to any party, whether voluntarily or by operation of law. A sale of assets, merger, or consolidation will be deemed an assignment for the purposes of this Agreement. Any attempted assignment in violation of the foregoing will be null and void.

9.3. Export Laws and Use Outside of the United States. Customer shall comply with the export related laws and regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Customer will defend, indemnify and hold harmless Akoonu from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

9.4. Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.

9.5. Entire Understanding. This Agreement, which includes and incorporates Orders attached to it, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. In the event of a conflict between the provisions of the Master Terms and Conditions and the terms of any Order, the Master Terms and Conditions shall control. Any pre-printed terms in an order document or written purchase authorization that add to, or conflict with or contradict, any provisions in the Master Terms and Conditions will have no legal effect.

9.6. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.

9.7. Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.

9.8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

9.9. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of California excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated exclusively in state court in San Francisco County, California or in a federal court in the Northern District of California.

9.10. Force Majeure. Except with respect to Customer’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.

9.11. Use of Customer’s Name. Customer authorizes Akoonu to use Customer’s name in any routine list of Akoonu Customers and as a reference.