MTM® Premium Subscription & End User License Agreement

1. Definitions

The following terms shall be defined as follows:

2. Agreement Acceptance

Consortium provides the Subscription and access to MTM® to Customer solely on the basis of Customer’s Acceptance of and compliance with all the terms, definitions, and conditions of this Agreement. Therefore, Customer (i) accepts and agrees to comply with all terms and conditions herein; (ii) affirms that all Authorized Users assigned by Customer will be bound by this Agreement; and (iii) represents that the signer of any Order Form on behalf of Customer, which Order Form is governed by this Agreement, has the authorization required to bind Customer into this legal agreement.

3. Agreement

Each Subscription is subject to and governed by this Agreement, the applicable Order Form, any Exhibits hereto, and any amendments to any of the foregoing as may be agreed by the Parties, which together constitute the agreement between Customer and Consortium (the “Agreement”). In the event of any conflict between the terms and conditions of the various components of this Agreement, the following order of precedence will apply (in descending order of authority): (i) any amendment agreed upon by the Parties; (ii) the applicable Order Form; (iii) this Agreement; and (iv) any Exhibit to this Agreement.

4. License, Use/Prohibitions

• 4.1. Upon the effective date of Customer’s Subscription as identified in the applicable Order Form, and subject to Customer’s and its Authorized Users’ continuing compliance with the Agreement (including, without limitation, timely payment of applicable fees), Consortium grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use MTM® solely for (a) Customer’s internal business purposes and in no event for commercial use (and, for clarity, not as a stand-alone product or service of Customer) or (b) in the case of an Evaluation License, then subject to the terms of Section 4.9 below.
• 4.2. In order to access MTM®, Customer’s Authorized User(s) will be required to establish an online account at https://app.crmtm.net (“Registration”). During Registration, Authorized User(s) will be asked to provide certain information including, but not limited to, Authorized User(s) name/company’s name, email address, phone number, and current cyber security products in use. Customer hereby agrees that all information provided during the Registration and setup process will be correct, current, and complete.
• 4.3. Customer may make a reasonable number of copies of the Documentation as necessary to use the Platform, in accordance with the rights granted under this Agreement, provided that Customer includes all proprietary legends and other notices on all copies.
• 4.4. Except as specifically provided in this Agreement or agreed in in writing by the Parties, Customer and any other Authorized Users of the Platform, in whole or in part, may not (and Customer agrees not to allow Authorized Users to): (a) decompile, reverse-engineer, decode, disassemble, or otherwise attempt to derive the source code for MTM® (or extract any trade secrets from the Platform); (b) modify, adapt, translate, make alterations to, or create any derivative work of (or a competitive alternative to), in whole or in part, MTM® or its accompanying Documentation; (c) copy or distribute copies of MTM® or its accompanying Documentation; (d) sell, lend, assign, transfer, redistribute, pledge, permit a lien on, encumber, rent, loan, sublicense, lease, distribute, or attempt to grant to any third party any rights granted by (or obligations under) this Agreement; (e) use MTM® or its accompanying Documentation for or on behalf of third parties; (f) permit any third party to access use MTM® or its accompanying Documentation; (g) use MTM® or its accompanying Documentation to act as a service bureau or application service provider; (h) use MTM® or its accompanying Documentation in any manner that is inconsistent with the Agreement; (i) knowingly or intentionally re-use, disseminate, copy, or otherwise use MTM® or its accompanying Documentation (or any services provided hereunder) in a way that infringes, misappropriates, or violates any Intellectual Property Rights of Consortium or any third party; (j) interfere with the proper working of the Platform, including, without limitation, any interference with or disruption to the integrity or performance of the Platform, data contained therein, or Consortium’s system or network supporting the Platform; (k) circumvent, disable, or interfere with security-related features of the Platform, or features that prevent or restrict use, access to, or copying MTM®, its accompanying Documentation, or other data, or that enforce limitations on use of MTM® or its accompanying Documentation; (l) transmit infringing or illegal content, or any viruses, “Trojan horses” or other harmful code to (or through the use of) the Platform; (m) engage in phishing, spamming, denial-of-service attacks, or fraudulent or criminal activity with respect to the Platform; (n) directly or indirectly exceed any limitations on usage of the Platform expressly provided in the Order Form; (o) perform penetration testing, vulnerability testing, or other security testing with respect to the Platform; or (p) use MTM®, its accompanying Documentation, or any services provided hereunder (1) to violate, or encourage the violation of, the legal or privacy rights of others; (2) to engage in, promote, or encourage illegal activity; or (3) for any unlawful, invasive, defamatory, or fraudulent purpose.
• 4.5. Customer agrees to treat all usernames, passwords, or other access keys as confidential and will not share them with any third-party person or entity.
• 4.6. Customer is responsible for ensuring that all Authorized Users or other persons who access MTM® through Customer’s account are aware of and comply with the Agreement. Customer shall be responsible for any breach of the Agreement (or any act or omission) by Customer’s employees, contractors, Authorized Users, or other persons who have been given access to MTM® through Customer’s registered account to the same degree as if the breach, act, or omission were performed by Customer; a breach, act, or omission by any of the foregoing will be deemed to be a breach, act, or omission by Customer.
• 4.7. Customer will immediately notify Consortium if Customer believes Customer’s account has been subject to unauthorized use or any other security breach.
• 4.8. The Platform may contain or be provided with components that are subject to the terms and conditions of “open source” software licenses (“Open Source Software”). If Customer’s use of the Platform subjects Customer to the terms of any license governing the use of Open Source Software, then information concerning such Open Source Software and the applicable license will be incorporated or referenced in the Documentation. To the extent required by the license to which the Open Source Software is subject, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing attribution, access to source code, modification, and reverse-engineering.
• 4.9. To the extent that Customer purchases or is provided (a) a no-cost Subscription to the Platform and/or any other products or services provided by Consortium and/or (b) a Subscription to the Platform and/or any other products or services provided by Consortium, that is/are otherwise described in the Order Form as (or such Order Form otherwise expressly indicates that it is) an evaluation or no-cost Subscription, then unless otherwise agreed in writing between the Parties prior to the date of Acceptance (1) Customer agrees to use the Platform and/or such products or services solely for its own internal analysis and internal business purposes, to determine the acceptability of the Platform and/or products or services and whether Customer has an interest in obtaining, as appropriate, a standard Subscription to the Platform and/or products or services from Consortium for use by Customer and (2) Consortium’s grant of license to Customer as provided above in this Section 4 (License, Use/Prohibitions) shall be nontransferable without any exceptions (collectively, an “Evaluation License”). If Customer deems Consortium’s Platform and/or products or services acceptable and desires to purchase a Subscription that is beyond the scope of the Evaluation License described herein, then Customer should purchase a standard Subscription. An Evaluation License Subscription shall be in effect for the period of time as expressly provided in the Order Form (the “Evaluation Period”), or if no period of time is so indicated on the Order Form, then such Evaluation License Subscription shall continue in effect for three (3) months after the commencement date of the Evaluation License Subscription. The renewal provisions in Section 8.1 below are not applicable to any Evaluation License or any Evaluation Period. With respect to any Evaluation License, the provisions in this Section 4.9 shall supersede any conflicting provisions in Sections 4.1-4.8 above. Any and all free products or services offered or provided by Consortium (including, without limitation, during any evaluation period), are provided on an AS-IS, WHERE-IS basis without any promises, representations, or warranties of any kind.

5. Onboarding

• 5.1. All Subscriptions to MTM® require certain activities be performed to encourage successful configuration and setup (“Onboarding”). Onboarding includes the activities described below (“Onboarding Activities”). Any activities not expressly included in this description are not included in Onboarding.
• 5.2. Onboarding Activities:
• 5.2.1. Consortium will provision the Customer MTM® tenant.
• 5.2.2. Consortium will provision the required Authorized Users and Consortium access to the MTM® tenant.
• 5.2.3. Consortium will configure the Customer company profile to generate inherent risk within MTM®.
• 5.2.4. Consortium will conduct control gathering workshop(s) (virtual or physical) to understand the Customer security control environment. This will entail discussing security controls by capability, understanding maturity, control coverage, and spend (if desired) from the Customer representatives. 5.2.3. Consortium will configure the Customer company profile to generate inherent risk within MTM®.
• 5.2.5. Consortium will input controls into MTM®, based upon information obtained during the control gathering workshop(s)
• 5.2.6. Consortium will generate initial insights to be shared with Customer, including MTM® inputs such as the number and type of controls, and the Customer’s company profile configuration. This will also include outputs, such as Inherent, Residual, and Mitigated Risk and Consortium’s insights in the Customer’s security program strengths and improvement opportunities.
• 5.2.7. Customer will review the accuracy of the MTM® tenant and promptly request any changes required.
• 5.2.8. Consortium will deliver an MTM® Implementation Report to include the MTM® Executive Summary, initial insights, and recommendations.
• 5.2.9. As required, Consortium will conduct one (1) MTM® training session for Customer’s Authorized Users.

6. Proprietary Rights

• 6.1. All right, title, and interest in and to MTM®, the Documentation, and the services provided hereunder are expressly reserved by Consortium. Subject to the licenses expressly granted herein, MTM®, the Documentation, and any products and services provided hereunder, and the Intellectual Property Rights in and to the foregoing, are owned by Consortium (and its third-party licensors, as applicable) and are protected by copyright, trademark, patent, trade secret and other laws and treaties. Customer’s access and use of the foregoing is licensed and not sold to Customer. The MTM® marks, logo, and all related names and logos, designs, and artwork are trademarks of Consortium and/or its affiliates. Neither party may use the other party’s name, marks, logos, designs, or identity without the prior written consent of a duly authorized officer of the other party. All names/logos/trademarks are the intellectual property of their respective owners. Nothing in this Agreement will be construed or interpreted as granting to Customer any rights of ownership or any other Intellectual Property Rights in or to MTM®, the Documentation, or any products or services provided hereunder. Customer acknowledges that there are no licenses granted by Consortium by implication under the Agreement.
• 6.2. If Customer or any Authorized User sends or transmits any communications or materials to Consortium, including, but not limited to, suggestions, improvements, modifications, comments, ideas, error identifications, enhancement requests, recommendations, feedback, or other information or other questions related to MTM®, the Documentation, or any other Consortium products, offerings, or services (“Feedback”), Consortium shall be entitled to use, retain, disclose, and exploit such Feedback without restriction (including, without limitation, (a) incorporating Feedback in Consortium’s products and services, (b) using Feedback to improve MTM®, the Documentation, or any other Consortium products, offerings, or services, (c) using Feedback to develop, market, offer, sell, and provide other products and services, or (d) using Feedback in any other manner it deems appropriate) and without paying any royalties or other compensation and without restriction or regard to any other obligation or limitation. Such Feedback shall be expressly excluded from “Confidential Information.” Customer will have no obligation to provide Feedback. As between Consortium and Customer, Consortium shall be and remain the sole owner of all Metadata pertaining to usage of the Platform or products or services provided hereunder. “Metadata” means data that describes and provides information about other data; for purposes of the Agreement, aggregate, volumetric, and statistical data describing or pertaining to usage of the Platform or products or services provided hereunder constitutes Metadata.

7. Confidential Information

• 7.1. “Confidential Information” means all information, in any form, furnished by (or made available directly or indirectly by) one Party to the other Party (or obtained from the other Party) pursuant to the Agreement, which information is marked confidential, restricted, proprietary, or with a similar designation, or which a reasonable person would determine, by virtue of the nature of the information or the method under which it was disclosed or other facts and circumstances, should be treated as confidential. Confidential Information includes, without limitation, the terms of the Agreement and any information regarding MTM® that is business and financial information; technical information; trademark information; marketing information; strategic information; vendor or customer information; or pricing and discount information. Each Party’s Confidential Information shall remain the property of that Party. Each Party shall maintain all of the other Party’s Confidential Information in strict confidence and will protect such information with the same degree of care that such Party exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Confidential Information shall not include information that can be demonstrated to be (a) known or in the possession of the receiving Party prior to its disclosure hereunder, without restriction as to use or disclosure; (b) in the public knowledge at the time of disclosure, or after disclosure to a Party is published or otherwise becomes part of the public knowledge through no fault of the receiving Party; (c) acquired by the receiving Party from a third party not under any obligation of confidentiality and without violation of this Agreement; (d) independently developed by the receiving Party without use of or reference to the Confidential Information; or (e) disclosed pursuant to the order of a court or administrative body of competent jurisdiction or a government agency, provided that the Party receiving such order shall notify the other prior to such disclosure (to the extent it may legally do so) and shall cooperate with the other Party (at the other Party’s expense) if such Party elects to legally contest, request confidential treatment, or otherwise avoid such disclosure. Except as expressly provided in the Agreement: (1) Customer and Consortium mutually agree to use the other Party’s Confidential Information only as needed for to provide or use MTM®, and (2) the receiving Party may not disclose, use, copy, or otherwise reproduce, sell, license, or transfer Confidential Information to any person or entity that is not a party to this Agreement, except for its affiliates, managers, members, directors, partners, employees, contractors, agents, and advisors with a need to use the information to perform such Party’s obligations under this Agreement and who are bound to preserve the confidentiality thereof. Additionally, a Party shall not be considered to have breached its obligations hereunder by disclosing Confidential Information to its attorneys, auditors, and other professional advisors in connection with services rendered by such advisors, provided that such Party has confidentiality agreements with such professional advisors, or such advisors owe professional confidentiality obligations to the Party. All copies of Confidential Information will reproduce the confidential markings, and any other legends contained in the original copies.
• 7.2. Upon the termination of Customer’s use of MTM®, and upon written request of the disclosing Party, all Confidential Information and any copies or reproductions thereof shall be returned to the disclosing Party or destroyed (destruction shall be verified in writing upon written request), and all use of such information by the receiving Party shall immediately cease; however, each Party may retain (a) archival copies as necessary to comply with document retention laws and regulations, (b) Confidential Information stored in routine backups maintained in the ordinary course until such backups are overwritten, and (c) Confidential Information that is subject to a claim, dispute, or lawsuit or in any other circumstances in which such Party reasonably believes that destruction of Confidential Information would be unethical or unlawful. Any such retained Confidential Information shall remain under the obligation of confidentiality for as long as it is retained.
• 7.3. The Parties’ obligations respecting Confidential Information shall survive for three (3) years following termination or expiration of this Agreement. Confidential Information is provided on an “AS IS” basis; no representations or warranties are made with respect to it. Customer and Consortium acknowledge that failure to comply with the obligations under this Section 7 (Confidential Information) will cause immediate, irreparable harm to the disclosing Party for which monetary damages would not be adequate. Therefore, in the event of a breach or attempted or threatened breach of this Section 7 (Confidential Information), the disclosing Party shall be entitled (in addition to all other remedies provided at law or in equity) to seek and obtain an appropriate order compelling performance by the receiving Party and restraining it from any further breaches (or attempted or threatened breaches), without posting bond or proving damages and without any additional findings of irreparable injury or other conditions to injunctive relief.
• 7.4. Each Party will promptly notify the other Party if it becomes aware of any unauthorized use or disclosure of, any loss of, or any breach of the other Party’s Confidential Information, and reasonably cooperate with the other Party in attempts to limit disclosure.

8. Term; Suspension or Termination of Use

• 8.1. This term of this Agreement shall commence on the date of Acceptance and shall continue for twelve (12) months (such period, the “Agreement Term”), unless terminated by either party in accordance with this Agreement. Thereafter, the Agreement Term shall renew for continued, additional periods of twelve (12) months, unless either Party provides a written notice of non-renewal at least forty-five (45) days prior to the renewal date or unless the Agreement is otherwise terminated as permitted herein.
• 8.2. Upon thirty (30) days written notice (via email is acceptable) to Consortium, Customer may terminate this Agreement and all services and obligations hereunder without cause; in such event, Customer will be responsible to pay for all Platform usage up to the time of termination, and Customer will not be entitled to a refund of any pre-paid Fees and will not be relieved of any future payment obligations for any unused portion of an applicable Order Form or Subscription term. Either Party may terminate this Agreement and all Order Forms hereunder (or only affected Order Forms or Subscriptions): (a) for cause upon written notice to the other Party, if the other Party materially breaches the Agreement and does not cure the breach within thirty (30) days following its receipt of written notice of breach from the non-breaching Party or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Any Customer termination for cause pursuant to the prior sentence shall be without penalty, except for any fees due and owed for services rendered up to the date of termination.
• 8.3. Consortium may temporarily or permanently suspend Customer’s access to MTM® if Consortium determines, in its sole discretion, that: (a) Customer has violated or has threatened to violate any of the restrictions listed herein; (b) Customer has breached this Agreement in any manner; (c) Customer’s use of MTM® exceeds the intended purpose; (d) there is a threat or attack on MTM®; (e) Customer’s use poses a security risk to MTM® or Consortium; (f) Customer is accessing or using MTM® for unethical, corrupt, or fraudulent purposes; or (g) an applicable law, rule, regulation, or court order prohibits Customer’s use of MTM®.
• 8.4. Upon termination or expiration of an Order Form or this Agreement, Customer’s right to access and use the Platform (or other product(s) or services) licensed or provided under such Order Form will terminate, Customer shall cease all use of the Platform (or other product(s) or services), Customer’s access to the Platform (or other product(s) or services) provided under such Order Form will be disabled and discontinued, and neither Party will have continuing rights to use any Confidential Information of the other Party that was provided under such Order Form. Termination or expiration of any Order Form will not terminate or modify any other Order Form between Customer and Consortium.
• 8.5. Consortium’s nonperformance of its obligations under this Agreement shall be excused if and to the extent (a) such Consortium nonperformance results from a Customer action, omission, or failure to perform Customer’s responsibilities and (b) Consortium provides reasonable notice of such nonperformance.
• 8.6. Section 6 (Proprietary Rights), Section 7 (Confidential Information), Section 11 (Liability), Section 12 (Indemnification), Section 16 (Governing Law), Section 17 (Miscellaneous), Section 18 (Notices), together with all other provisions of this Agreement that may reasonably be interpreted or construed as surviving expiration or termination, will survive the expiration or termination of this Agreement for any reason.

9. Fees, Invoices and Taxes

• 9.1. The fees with respect to Customer’s Subscription hereunder (“Fees”) are as provided under this Agreement or in an applicable Order Form. Consortium shall have the right to update any Fees or charges applicable under this Agreement at any time. If the Fees increase by more than ten percent (10%), Consortium will provide Customer written notice at least 30 days prior to Customer’s next renewal date. An updated Order Form shall constitute notice under this Section 9.1
• 9.2. Consortium shall invoice Customer for Fees as provided in an Order Form hereunder. Except as may be otherwise provided in an Order Form, all invoiced amounts under this Agreement are due and payable within thirty (30) days after Customer’s receipt of the invoice. All amounts payable by Customer under this Agreement will be paid to Consortium without setoff or counterclaim, and without any deduction or withholding. If any amount due hereunder is not paid in full by Customer when due, the overdue balance will be subject to a late payment interest charge at the rate of 1.5% per month, prorated daily (or the maximum legal rate, if less). If Consortium must seek legal assistance in collection of payment owed, Customer shall pay all costs of collection, including but not limited to attorney fees and litigation costs.
• 9.3. Fees hereunder are exclusive of any applicable taxes, and Customer shall be responsible for any sales, use, excise, value-added, services, consumption, VAT, or other tax that is assessed on the provision of the Platform or any other products or services provided hereunder. Each Party shall be responsible for any real or personal property related taxes on property it owns or leases, for any franchise and privilege taxes on its business, and for any taxes based on its net income or gross receipts.

10. No Warranty or Consequential Liability

• 10.1. MTM® is licensed on an “AS IS'' and “AS AVAILABLE” basis. Consortium warrants that the Platform will substantially conform to its published documentation and that the Platform will be free of viruses, malware, or other harmful code designed to disrupt, damage, or gain unauthorized access to Customer’s systems or data. This warranty does not cover issues arising from: (a) misuse, (b) unauthorized modifications, or (c) external factors beyond Consortium’s control. Consortium’s sole obligation for a breach of this warranty shall be to use commercially reasonable efforts to correct any non-conformance. In no event shall Consortium be responsible or liable for Customer’s use of, reliance on, or implementation of the output, information, or data provided by MTM® (or for any misuse of such output, information, or data). Consortium makes no representation or warranty that MTM® will meet Customer’s requirements or that the quality of the Platform or services purchased or obtained by Customer will meet Customer’s expectations. Customer assumes complete responsibility, without any recourse against Consortium, for the selection of the Platform and any products or services provided hereunder to achieve the intended results and for use of the results obtained from the Platform, products, and services provided hereunder, including, without limitation, the completeness, accuracy, and content of such results. Consortium makes no representation or warranty (a) that Customer’s access to the Platform will be secure, error free, or free from interruption or (b) that errors will be corrected. Customer must determine whether Customer’s access to MTM® through the internet sufficiently meets Customer’s requirements for security and uninterruptability. Customer bears sole responsibility and all liability for any loss incurred to due to failure of MTM® to meet Customer’s expectations. MTM® is a data platform and does not directly provide any type of security to Customer by its use.
• 10.2. CUSTOMER REPRESENTS THAT IT IS ENTERING THE AGREEMENT WITHOUT RELYING UPON ANY CONSORTIUM REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SPECIFIED IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY MAKES (AND EACH PARTY DISCLAIMS) ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED (INCLUDING, WITHOUT LIMITATION, REGARDING THE PLATFORM AND PRODUCTS OR SERVICES PROVIDED HEREUNDER). NO WARRANTIES ARE MADE ON THE BASIS OF TRADE PRACTICE, USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. To the extent that the applicable jurisdiction limits Consortium’s ability to disclaim any implied warranties, this disclaimer shall be effective to the maximum extent permitted.

11. Liability

• IN NO EVENT (1) SHALL CONSORTIUM BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, ENHANCED, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (B) ANY LOSS OF PROFITS, REVENUE, DATA, BUSINESS, BUSINESS OPPORTUNITY, SAVINGS, ASSETS, CAPITAL, EARNINGS, GOODWILL, OR REPUTATION; OR (C) ANY USE, INABILITY TO USE, INTERRUPTION, DELAY, RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, IN EACH CASE REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, THEORIES OF CONTRACTUAL LIABILITY, TORT LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR BREACH OF WARRANTY), EVEN IF THE LIABLE PARTY KNEW OR SHOULD HAVE KNOWN THAT THE FOREGOING KINDS OF DAMAGES WERE POSSIBLE, AND (2) SHALL CONSORTIUM’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, OR OTHER LEGAL THEORY, EXCEED CUSTOMER’S ACTUAL DIRECT DAMAGES, CAPPED AT AN AMOUNT EQUAL TO THE GREATER OF (A) THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CONSORTIUM UNDER THE PARTICULAR ORDER FORM GIVING RISE TO LIABILITY, OR (B) $1,000 (SUCH AMOUNT, THE “LIABILITY CAP”). The Liability Cap shall not apply to (i) damages resulting from Consortium’s willful misconduct or fraud; or (ii) claims that are subject to indemnification under this Agreement.

12. Indemnification

• 12.1. Consortium will indemnify, defend, and hold harmless Customer from and against any and all claims, actions, proceedings, and suits brought by a third party, and any and all related liabilities, losses, damages, settlements, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) to the extent arising out of or relating to an allegation of any of the following: a Claim that the Platform infringes or misappropriates such third party’s United States Intellectual Property Rights; provided, however, that Consortium shall not be responsible to indemnify Customer, to the extent such alleged infringement arises from: (a) items, devices, data, programs, software, hardware, or written materials specifically supplied by Customer; (b) combinations of the Platform with any other items, devices, data, programs, software, hardware, or written materials not provided or made accessible by Consortium or not specifically referenced for use with the Platform by the Documentation; (c) modifications to the Platform not provided by Consortium or its personnel; (d) any portion of the Platform (or any modification thereto) that is made by Consortium or its agents according to or in compliance with Customer’s written designs, specifications, instructions, or the like; (e) use of the Platform by Customer in breach of this Agreement, in an improper manner, in a manner for which the Platform was not designed, or in a manner not in accordance with the applicable Documentation; or (f) the failure of Customer to use an updated, non-infringing version of the Platform that was made available by Consortium. In addition to Consortium’s obligations above, if the Platform is held, or in Consortium’s opinion is likely to be held, to infringe or misappropriate United States Intellectual Property Rights that would prohibit or interfere with Customer’s use of the Platform, then Consortium will at its option and expense either: (1) procure for Customer the right to continue using the affected portion of the Platform in accordance with the Agreement; or (2) modify or replace the Platform so that it does not infringe or misappropriate; or (3) if the foregoing are not reasonably possible, then Consortium may terminate the affected portion of the Agreement, in which case Consortium will refund any pre-paid fees paid to Consortium by Customer with respect to the terminated portion of the Agreement, reflecting the unused portion of the Subscription. This Section 12 (Indemnification) states the entire liability of Consortium, and Customer’s sole remedy, with respect to infringement or misappropriation by the Platform of the Intellectual Property Rights of third parties.
• 12.2. Customer will indemnify, defend, and hold harmless Consortium from and against any and all claims, actions, proceedings, and suits brought by a third party, and any and all related liabilities, losses, damages, settlements, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) to the extent arising out of or relating to an allegation of any of the following: (a) a Claim that the Customer Data infringes or violates such third party’s United States Intellectual Property Rights; (b) use of the Platform by or on behalf of Customer (or its or their Authorized Users) other than in accordance with the Agreement; or (c) a violation of Section 4 (License, Use/Prohibitions) or Section 6 (Proprietary Rights) hereunder by Customer or its employees, agents, representatives, or Authorized Users.
• 12.3. The Party seeking indemnification pursuant to this Section 12 (Indemnification) (the “Indemnified Party”) will give the other Party (the “Indemnifying Party”) prompt written notice of each Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. Upon receiving such notice, the Indemnifying Party shall be obligated to defend the Indemnified Parties against the Claim, and shall be entitled to assume control of the defense or settlement of the Claim, provided that the Indemnifying Party, without the Indemnified Parties’ prior written consent, will not enter into any settlement that includes any admission of guilt or wrongdoing by the Indemnified Party or that imposes any financial or other obligations on the Indemnified Party. The Indemnified Party will give the Indemnifying Party its reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control.

13. Platform Changes

• Consortium shall be entitled to, in its sole discretion, make changes to MTM® at any time, with or without notice.

14. Customer Data

• Consortium may collect, process, and use Customer Data in accordance with its Privacy Policy, which is incorporated into this Agreement by reference. Customer retains all right, title, and interest in and to Customer Data in accordance with Consortium’s MTM® Privacy Policy. End User grants a non-exclusive, revocable, royalty-free, worldwide license to Consortium to use, reproduce, access, host, process, transmit, and display Customer Data as may be necessary for Consortium to perform its obligations under the Agreement and for internal use, analysis, and for the improvement and/or enhancement of MTM®. Customer Data expressly excludes Feedback. In the event that the license to Customer Data is revoked by the Customer, Customer’s use of MTM® will be immediately terminated. Customer will obtain all necessary consents, authorizations, and rights and provide all necessary notifications in order (i) to provide Customer Data to Consortium and to grant to Consortium the rights and licenses to Customer Data herein and (ii) for Consortium to use Customer Data in the performance of its obligations in accordance with the terms and condition of the Agreement. Customer is responsible for creating and maintaining its own backups of any Customer Data, and Customer acknowledges that Consortium does not support, represent, or guarantee the completeness, truthfulness, accuracy, reliability, or other attributes of any Customer Data.

15. Force Majeure

• Neither Party shall be liable for any delay or failure to perform its obligations under the Agreement in whole or in part (except for the payment of money) and neither Party shall be deemed in default or breach of the Agreement, to the extent such delay or failure arises from causes beyond its reasonable control, including, without limitation, acts of God, natural disasters (e.g. floods, earthquakes, tornadoes, hurricanes), pandemics, war, terrorism, civil unrest, strikes or labor disputes, government actions, power outages, or failure of telecommunications or internet services (a “Force Majeure Event”). In the event of a Force Majeure Event, the affected Party shall notify the other Party as soon as reasonably practicable, providing reasonable details of the Force Majeure Event and its expected impact on performance. The obligations of the affected Party shall be suspended to the extent and for the duration of the Force Majeure Event, and the affected Party shall use reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as practicable. If the Force Majeure Event continues for more than sixty (60) days, either Party may terminate the affected portion of the Agreement upon written notice to the other Party without liability for such termination.

16. Governing Law

• Any dispute, controversy, or claim arising out of or relating to this Agreement, including its formation, interpretation, breach, or termination, shall be resolved by final and binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. The arbitration shall take place in New York, New York before a single arbitrator. The arbitrator shall have the authority to award any relief available in a court of law, including emergency or injunctive relief. The arbitration, including all proceedings, submissions, and awards, shall remain strictly confidential, except as necessary to enforce an arbitral award or as required by law. The Parties agree to maintain the privacy of the arbitration and shall not disclose its existence, content, or outcome to any third party, except as required by law, as reasonably necessary in connection with a potential or actual merger, acquisition, financing, or other corporate transaction, provided that the receiving party agrees to appropriate confidentiality obligations, or with the prior written consent of both parties. The parties further agree that a party may seek emergency relief, including injunctive or equitable relief, from the arbitrator under the institution’s emergency arbitration rules or, if necessary, from a court of competent jurisdiction without waving the obligation to arbitrate all other claims or disputes. Judgment upon the arbitration award may be entered in any court having jurisdiction. This arbitration provision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and, to the extent not preempted, the laws of the State of New York. Each party shall bear its own costs and attorneys’ fees, except as otherwise provided in the arbitrator’s award. The parties waive any right to bring or participate in a class action.

17. Miscellaneous

• The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between Customer and Consortium, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Customer and Consortium. This Agreement is entered into solely between, and may be enforced only by, Consortium and Customer, and nothing express or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than the Parties and the permitted successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever. Each Party represents and warrants that it is duly organized, validly existing, and in good standing under the laws of its state and/or country of incorporation and all applicable jurisdictions of registration. Furthermore, the individuals signing this Agreement on behalf of their respective Parties hereby expressly represent and certify that they have been given the legal authorization required to sign for and bind their Party to the obligations, terms, and conditions of this Agreement and that this Agreement is a valid and legal agreement binding on the Party and enforceable according to its terms. This Agreement may be executed in counterparts, and each shall be deemed an original, taken together constituting one and the same Agreement. Acceptance of this Agreement as set forth herein shall be as legally binding and enforceable as a wet-ink signature. This Agreement (including, without limitation, Order Forms entered hereunder) contains the entire agreement between the Parties as to the subject matter hereof and supersedes any previous or contemporaneous understandings, commitments, or agreements, whether oral or written. The terms and conditions of this Agreement will not be changed, amended, modified, or waived unless such change, amendment, modification, or waiver is in writing and signed by authorized representatives of the Parties. Neither Party may assign or transfer the Agreement or any rights or delegate any duties herein without the prior written consent of the other Party, which will not be reasonably withheld, delayed, or conditioned; provided however, that Consortium may assign this Agreement and/or delegate its obligations to (i) any Affiliate or (ii) any entity acquiring all or substantially all of its assets. Consortium may use subcontractors in its performance under this Agreement, and Consortium remains responsible for the performance of any of its subcontractors. Any provision of this Agreement deemed by a competent authority to be prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of the Agreement. The failure of either Party to assert or enforce any provision of this Agreement, at any time or for any period of time, shall not constitute a waiver of such provision or the right of either Party to enforce any and every provision of this Agreement at any time. No waiver by either Party of a breach of any term, provision, or condition of this Agreement by the other Party will constitute a waiver of any succeeding breach of the same or any other provision hereof; no such waiver will be valid unless executed in writing by the Party making the waiver.

18. Notices

• To be effective, notice under the Agreement must be given in writing. Each Party consents to receiving electronic communications and notifications from the other Party in connection with this Agreement. Consortium agrees that it may receive notices from Customer regarding this Agreement: (i) by email to legal@consortium.net; or (ii) by registered or certified mail, return receipt requested (or by nationally recognized courier service) addressed to 100 Springdale Road, Suite A3, PMB 353, Cherry Hill, New Jersey 08003, if addressed to Consortium’s legal representative. Customer agrees that it may receive notices from Consortium regarding this Agreement (a) at the email address provided in the Order Form or (b) by registered or certified mail, return receipt requested (or by nationally recognized courier service) addressed to the mailing address provided in the Order Form, if addressed to Customer’s legal representative. Notice will be deemed given upon written verification of receipt.