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Master Services Agreement

Master Subscription Agreement

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MASTER SERVICES AGREEMENT


This Master Services Agreement (the “Agreement”) is by and between Inscale Technologies, LLC, a North Carolina limited liability company, having its principal place of business at 1544 Blowing Rock Road # 3716, Boone, NC 28607 (“Inscale Technologies”), and (“Client”) as defined by the legal party listed on the Inscale Technologies Statement of Work referencing this agreement Whereas, Client wishes to purchase professional services provided by Inscale Technologies.

Now Therefore, Inscale Technologies and Client agree as follows:  THE PARTIES’ EXECUTION OF A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT CONSTITUTES AN ACCEPTANCE BY CLIENT AND THAT BOTH PARTIES AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1. SERVICES

1.1 Services. On the terms and conditions set forth herein, Client hereby engages Inscale Technologies on its behalf to perform those services mutually agreed upon from time to time by Inscale Technologies and Client (collectively “Services”) in written statements of work (each, a “Statement of Work”), and Inscale Technologies hereby accepts such engagement. Inscale Technologies shall render Services and deliver the deliverables set forth in the respective Statement of Work (“Deliverables”) in accordance with the timetable and milestones set forth in the respective Statement of Work. Neither Inscale Technologies nor Client shall be obligated to enter into any Statement of Work. Any estimates of availability made verbally by Inscale Technologies prior to receipt of a signed Master Services Agreement and Statement of Work shall not constitute a commitment of resources or constitute a timeline for delivery of Services.

1.2 Statement of Work Authorization and Modification. Each Statement of Work is to be signed on behalf of the Client exclusively by designated authorized representatives of Client. Any deviation from or modification to a Statement of Work must be agreed to by the parties in writing. In the event of any express conflict or inconsistency between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of this Agreement will govern and control unless the parties include an express statement of the parties’ intention to supersede or override such provision of this Agreement, in which case such provision of such Statement of Work will govern and control with respect to the interpretation of that Statement of Work only; provided, however, that the provisions of the Statement of Work will be so construed as to give effect to the applicable provisions of this Agreement to the fullest extent possible, including, without limitation, Sections 3.3, 3.4, 4.1, 4.2, and 4.3 of this Agreement.

1.3 Acceptance. Within thirty (30) days after the receipt by Client of any Deliverable, together with a written notice of completion and successful testing from Inscale Technologies, Client agrees to review and/or test the deliverable. Unless written notice is provided by Client to Inscale Technologies within this thirty (30) day period, the Deliverable will be deemed to be accepted. In the event that Client determines that any part of the Deliverable is not acceptable, Client has the right to reject the Deliverable and Client shall notify Inscale Technologies in a writing setting forth with reasonable specificity any deficiency. Inscale Technologies shall then have thirty (30) days to correct the deficiency, unless additional time is expressly approved by Client in writing, and the process set forth in this Section 1.3 shall repeat with respect to the corrected deliverables.


2. FEES AND BILLING

2.1 Charges for Services. Client will pay to Inscale Technologies the charges set forth in each Statement of Work in accordance with this Agreement and such Statements of Work. Unless otherwise provided in the Statement of Work, Inscale Technologies agrees not to change its fees during the term of the Statement of Work without the written consent of Client; provided, however, Inscale Technologies may adjust its fees prior to entering into a new Statement of Work.

2.2 Out-of-Pocket Expenses. Client will also pay Inscale Technologies as charges any reasonable out-of-pocket expenses (including without limitation, travel expenses) incurred by Inscale Technologies in the course of providing Services to Client. 

2.3 Payment. Unless otherwise expressly provided in a Statement of Work with respect to the charges to be paid thereunder, Inscale Technologies will invoice Client for charges on a monthly basis for time and materials as set forth in the Statement of Work, with each invoice setting forth the charges related to the previous month. Unless otherwise expressly provided in a Statement of Work, any amount due to Inscale Technologies under this Agreement and each Statement of Work shall be payable in full within thirty (30) days after Client’s receipt of an invoice therefore without withholding, deduction or offset of any amounts for any purpose. Client shall be responsible for all taxes (including sales taxes) imposed as a result of the Services, excluding only taxes based on the net income of Inscale Technologies, its property, and its employees. Any amount not paid within thirty (30) days of the applicable due date of each invoice shall be subject to an interest charge equal to the lesser of 1% monthly or the maximum interest charge permissible under applicable law. Client shall be responsible for the payment of all invoices in accordance with this Agreement. Any charges not disputed by Client in good faith within ten (10) days of the Client’s receipt of an invoice therefore will be deemed payable in full by Client.

3. WARRANTIES

3.1 Inscale Technologies Warranty. Inscale Technologies hereby represents and warrants and covenants that (i) its personnel shall perform the Services in a manner consistent with generally accepted industry standards and practices and in compliance with applicable law, (ii) it has obtained all consents and rights required to perform the Services and for Client to receive the Services, including all necessary consents and rights from Salesforce or any of its affiliates (collectively, “SFDC”), and (iii) the Deliverables shall perform substantially in accordance with the requirements of the Statement of Work. In the event of a breach of the foregoing warranty in clause (i), Inscale Technologies’ sole obligation and Client’s exclusive remedy will be to have Inscale Technologies perform again the Services in respect of which the warranty has been breached to bring them into compliance with such warranty. Any claim for breach of the foregoing warranty must be made by notice to Inscale Technologies within 60 days of completion of the acceptance of the final Deliverable with respect to Services or said claim shall be deemed waived. 

3.2 Mutual Warranties. For each Statement of Work, each party hereby represents and warrants and covenants that (i) with respect to tools, hardware, software and other products provided by such party for use by the other party under this Agreement and the Statement of Work, such party has obtained all licenses and permits which are required to be obtained to enable such use by such other party; and (ii) each party has, or will have, the personnel and other resources available, and will provide, or cause to be provided, such personnel and resources, to fulfill its obligations set forth in each Statement of Work. Client further represents, warrants, and covenants that the information furnished by Client to Inscale Technologies on which Inscale Technologies based the description of the Services and the charges to be paid to client therefore, as set forth in each Statement of Work, is accurate and complete in all material respects. 

3.3 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 3.1 & 3.2, INSCALE TECHNOLOGIES DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES OR THE SERVICES RENDERED BY INSCALE TECHNOLOGIES OR ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK PURSUANT TO THIS AGREEMENT OR ANY STATEMENT OF WORK. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY INSCALE TECHNOLOGIES.

3.4 If Client or its clients licensed, sublicensed, purchased or leased any third-party software or hardware, from Inscale Technologies, Client must refer to the separate limited warranty documentation, if any, provided with the software and/or hardware by the manufacturer or licensor for information on the limitation and disclaimer of certain warranties with respect to such software or hardware. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If the software and/or hardware did not include a limited warranty from the manufacturer or licensor, Client agrees that the software is accepted “AS IS.” OTHER THAN WARRANTIES, IF ANY, AS TO THE SOFTWARE AND/OR HARDWARE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE SOFTWARE AND/OR HARDWARE BY THE MANUFACTURER OR LICENSOR, Inscale Technologies MAKES NO WARRANTIES UNDER THIS AGREEMENT OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS HEREUNDER ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE SOFTWARE AND/OR HARDWARE BY THE MANUFACTURER OR LICENSOR. CLIENT ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THESE DISCLAIMERS ARE AN INTEGRAL PART OF INSCALE TECHNOLOGIES PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PERFORM SERVICES HEREUNDER AND PURSUANT TO THE STATEMENTS OF WORK. Client shall make no warranty to its clients relating to the Services, deliverables, software or hardware in addition to, or inconsistent with, the limited warranties contained in this Section 3.4 

4. LIMITATION OF LIABILITY

4.1 Limitation on Consequential Damages, etc. EXCEPT AS SET FORTH IN SECTION 4.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER PARTY, ITS CUSTOMERS OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, OR WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.2 Limitation on Cumulative Liability. EXCEPT AS SET FORTH IN SECTION 4.3, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO INSCALE TECHNOLOGIES BY CLIENT.

4.3 Allocation of Risk.

(a) EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS SET FORTH HEREIN, THE FEES PAID BY CLIENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. SECTIONS 4.1 AND 4.2 SHALL NOT APPLY WITH RESPECT TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INTENTIONAL BREACH OF SECTION 5.1(a) or 5.1. (b) Inscale Technologies shall indemnify and hold harmless Client and its respective directors, officers, employees, agents, and clients from and against any all losses, liabilities, obligations, costs, damages, charges, awards, judgments, fines, penalties, assessments, deficiencies, taxes, and expenses (including, in each case, interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense, or settlement) to the extent arising out of any third party proceeding in connection with or by reason of: (i) any actual or alleged infringement, misappropriation, or other violation of intellectual property rights of any third party in connection with the performance or receipt of any Services or (ii) any violation of applicable law, gross negligence, willful misconduct, or fraud by or on behalf of Inscale Technologies in connection with this Agreement.

(b) Inscale Technologies shall indemnify and hold harmless Client and its respective directors, officers, employees, agents, and clients from and against any all losses, liabilities, obligations, costs, damages, charges, awards, judgments, fines, penalties, assessments, deficiencies, taxes, and expenses (including, in each case, interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense, or settlement) to the extent arising out of any third party proceeding in connection with or by reason of: (i) any actual or alleged infringement, misappropriation, or other violation of intellectual property rights of any third party in connection with the performance or receipt of any Services or (ii) any violation of applicable law, gross negligence, willful misconduct, or fraud by or on behalf of Inscale Technologies in connection with this Agreement.

5. CONFIDENTIALITY

5.1 Confidential Information.

(a) For purposes of this Agreement, “Confidential Information” shall mean nonpublic information, in tangible or intangible form, of the disclosing party that disclosing party designates as confidential or which under the circumstances surrounding the disclosure would reasonably be considered confidential. Confidential Information shall include, without limitation, information contained in design documentation relating to any programs of Inscale Technologies (in the case of Inscale Technologies), Client or Client’s customers to whom Services are rendered (in the case of Client), any source code, development level documentation, all Inscale Technologies development tools (except for publicly available tools), data files, databases, marketing plans, supplier and customer information, proprietary and technical information, and business and marketing strategies and plans (in the case of Inscale Technologies), and information received from others that disclosing party is obligated to treat as confidential (in the case of either party). A party’s Confidential Information shall include all nonpublic information and data that such party discloses, provides, or otherwise makes available to the other. Notwithstanding the foregoing, information disclosed to or acquired by recipient of the information shall not constitute Confidential Information to the extent that the recipient can demonstrate (i) such information was lawfully known to the recipient prior to the disclosure thereof by disclosing party without breach of any obligation owed to the disclosing party; (ii) such information is or thereafter becomes lawfully obtained from a third party without breach of any obligation owed to the disclosing party; (iii) the recipient’s duty as to confidentiality is waived in writing by disclosing party; (iv) such information was developed by employees or agents of the recipient of the information independently of and without reference to Confidential Information or other information that disclosing party has disclosed in confidence to any third party. In the event a recipient or any of its Representatives are required by legal process or applicable law to disclose any Confidential Information of the disclosing party, the recipient of the Confidential Information shall notify the disclosing party in writing prior to disclosure of such Confidential Information and shall fully cooperate with and assist the disclosing party in taking legally available steps to seek a protective order or other appropriate remedy. In the event such disclosing party seeks but fails to obtain a protective order or other appropriate remedy, the recipient may (and shall cause its Representatives to) disclose only that portion of the Confidential Information that is legally required to be disclosed and shall fully cooperate with disclosing party in its efforts to ensure that confidential treatment will be accorded to Confidential Information disclosed in such manner.

(b) Inscale Technologies shall (and shall ensure that its Representatives) (i) not use, access, modify, disable access to, or delete, sell, assign, license, or subject to any lien, any Client Data, (ii) take all reasonable technical and organizational measures necessary to ensure that Client’s Confidential Information is protected against, and shall be liable for, any and all loss, destruction, damage, and unauthorized access, use, modification, and disclosure, and other misuse of Client’s Confidential Information, including such measures as logically separating Client’s Confidential Information from all other data, and (iii) ensure that only persons with a specific need and authorized by Client have access to Client’s Confidential Information (and that no other third parties to whom Inscale Technologies or any of its affiliates is providing services has access to any Client Confidential Information). Promptly upon discovery of an actual or suspected breach of the privacy or security of any Client Confidential Information, any violation of any law related to data privacy and security with respect to Client’s Confidential Information, or any such loss, destruction, damage, unauthorized activity, or misuse, Inscale Technologies shall provide notice to Client explaining the nature and scope of the incident and cooperate in any investigation Client deems reasonably necessary (including any forensic investigation). Client shall control all communications and notifications regarding any such breach or violation.

5.2 Nondisclosure. Each party acknowledges that in performance of this Agreement, it may acquire knowledge of the other’s Confidential Information. Subject to the provisions of this Section 5.2, each party acknowledges and agrees that all of the Confidential Information disclosed to or acquired from the other party to this Agreement (i) shall be maintained in strict confidence by such party, (ii) that such party will protect such Confidential Information using at least the same degree of care it would use with respect to its own Confidential Information of like kind (but no less than a reasonable standard of care), and (iii) that such party shall not disclose any Confidential Information to any person or entity except (a) to its Representatives with a need to know as and to the extent required to perform this Agreement and who have signed confidentiality agreements with the recipient containing protections no less stringent than those herein, (b) in the case of Client, to exercise its rights hereunder, or (c) as expressly permitted by the disclosing party in writing. No party shall use the other party’s Confidential Information nor circulate it within its own organization except to further the purposes of this Agreement. Each party shall be responsible and liable to the other for any disclosure of Confidential Information by any employee, contractor, agent or other person or entity to whom such party discloses Confidential Information of the other. "Representatives" means, with respect to a party, (A) an affiliate of such party or (with respect to Inscale Technologies) a permitted subcontractor; (B) any director, officer, or employee of such party or of any such party’s affiliates; or (C) any attorney, accountant, or other professional advisor bound by obligations of confidentiality and non-disclosure. For purposes of this Section 5.2, a third party breach of the security of Client Confidential Information shall not be considered to be a disclosure of Client Confidential Information under this Section 5.2.

5.3 Irreparable Harm. In addition to all other legal or equitable remedies to which a party may be entitled to enforce Section 5.2, both parties acknowledge that any violation of Section 5.2 by the non-disclosing party would cause irreparable harm to the disclosing party and agree that the other party shall be entitled to an immediate injunction or other equitable relief or specific performance to prevent violations of Section 5.2 without the necessity of proving actual harm or posting bond.

5.4 Independent Development; Residuals.
Nothing in the terms of this Agreement and any Statement of Work shall be construed to limit Inscale Technologies’ or Client’s right to independently develop or acquire products without the use of Confidential Information of the other party. Upon Client’s prior written consent, not to be unreasonably withheld, Inscale Technologies shall not be prohibited under this Agreement to use for any purpose the Residuals resulting from access to or work with Confidential Information, provided such party shall maintain the confidentiality of Confidential Information as provided in Sections 5,1, 5.2, and 5.3 and any other written confidentiality agreement between the parties. For purposes of this Agreement, “Residuals” shall mean technical information related to software technology in nontangible form, which may be retained in unaided memory by individuals who have had access, as permitted by this Agreement, to Confidential Information, where (i) such information constitutes general ideas, concepts, know-how or techniques, and (ii) such individuals (x) did not intentionally memorize the applicable idea, concept, know-how, or technique for the purpose of retaining or subsequently using or disclosing it, and (y) did not recall, in good faith, that the idea, concept, know-how, or technique constituted the Client’s Confidential Information. Neither Inscale Technologies nor Client shall have any obligation to limit or restrict the assignment of such individuals or to pay compensation resulting from the use of the Residuals in accordance with this Agreement. Notwithstanding the foregoing, this Section shall not be construed to grant either Inscale Technologies or Client a license of the other party’s copyrights or other intellectual property.

5.5 CLIENT AGREEMENTS. Client shall enter into a written agreement with each of its clients to whom, or for whose benefit, Services are provided which contain the following minimum provisions: (i) provisions preventing the disclosure of Inscale Technologies’ Confidential Information substantially similar to Section 5.2 of this Agreement; (ii) provisions disclaiming warranties and limiting liabilities for Services substantially similar to Sections 3.3, 3.4, 4.1, 4.2, or 4.3 of this Agreement; (iii) provisions prohibiting the client from taking any actions which impair or infringe the intellectual property rights of Client or its licensors, including Inscale Technologies; (iv) requiring the client not to remove or destroy any copyright notices, other proprietary markings or confidential legends placed upon or contained within an deliverable; and (v) prohibiting the solicitation, hiring or employing of employees or independent contractors of Inscale Technologies (see Section 6.5). Client shall cause such agreements to be executed prior to the rendering of Services by Inscale Technologies. Inscale Technologies shall be a third party beneficiary of each such agreement. Client shall use its best efforts to assist Inscale Technologies in the protection of Inscale Technologies’ legal rights and to enforce Inscale Technologies’ and applicable third party’s intellectual property rights. Client shall cooperate fully with Inscale Technologies in any action by Inscale Technologies in the event of an actual or threatened violation of Inscale Technologies’ proprietary rights by any person or entity, including clients of Client.

6. TERM AND TERMINATION

6.1 Term. This Agreement shall be effective on the date a Statement of Work is executed by the parties and thereafter shall remain in effect until terminated by Inscale Technologies or Client as provided in this Agreement or until all Statements of Work have expired or been terminated. The term of any Statement of Work shall be as provided therein. Termination of this Agreement shall have the effect of terminating all Statements of Work.

6.2 Termination. This Agreement or any Statement of Work may be terminated by Client without cause by giving Inscale Technologies thirty (30) days prior written notice. This Agreement or any Statement of Work may be terminated by Inscale Technologies immediately upon written notice in the event Client fails to perform its obligation for payment of undisputed invoices pursuant to this Agreement and such failure to perform continues for thirty (30) days after receipt by Client of written notice from Inscale Technologies that Client has failed to pay an undisputed invoices (including the details of such non-payment). This Agreement or any Statement of Work may be terminated by a party if the other party commits a material breach or default of this Agreement which breach or default is not cured within thirty (30) days after such party’s written notice of such breach or default. 

6.3 Effect of Termination. Upon termination of this Agreement: (a) Client shall promptly pay all amounts payable to Inscale Technologies for Services rendered and reasonable out-of-pocket expenses incurred up to the date of termination; and (b) each party shall return or destroy, at the written direction of the other party, all the other party’s Confidential Information in its possession or under its control.

6.4 Survival. Sections 3.1-5.3, and 6.1-7.9 and 7.11-6.14 shall survive any termination or expiration of this Agreement and/or termination or expiration of any Statement of Work. 

6.5 SOLICITATION OF OTHER PARTY PERSONNEL. For a period of one (1) year from the expiration or termination of each applicable Statement of Work, each party agrees not to solicit the employment of any personnel or agent of the other party who has been directly involved with the delivery of Services under such Statement of Work unless such other party grants it consent in writing. If this condition is breached, the breaching party agrees to compensate the other party with a sum equal to twenty-four (24) times the average monthly salary received by such individual during the last one (1) year which the individual was employed by such party plus the fees payable under the Statement(s) of Work for which the such individual was/is/will be directly involved with the delivery of Services. General advertisements, solicitations or publication of employment opportunities by a party that are not targeted at the employees or officers of the other party shall not be deemed to violate this Section 6.5.

7. MISCELLANEOUS

7.1 Notices. Any notices or communications required or permitted to be given regarding this Agreement shall be in English and in writing, and shall be sent via U.S. Certified Mail, Return Receipt Requested, or by prepaid overnight or courier service, to the addresses above, or such other address as shall be designated in writing by either party to this Agreement to the other. Notices are deemed given on receipt or attempted delivery (if receipt is refused).

7.2 Independent Contractor. Each party, in rendering performance under this Agreement is acting solely as an independent contractor. In no way is either party to be construed as the agent of the other party in any respect, any other provisions of this Agreement hereunder notwithstanding.

7.3 Entire Agreement; Amendments. This Agreement and the Statements of Work together constitute the entire agreement between the parties regarding the subject matter hereof. This Agreement may not be amended except by the written agreement of the parties.

7.4 Construction; Headings. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement or any of its provisions. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement refer to this Agreement as a whole (including any Schedules hereto) and not to any particular provision of this Agreement. Inscale Technologies shall fully cooperate and assist Client in connection with Client’s receipt of the Services. All references to "dollars" or "$" will be deemed references to the lawful money of the United States of America. 

7.5 Severability. If any provision of this Agreement or its application to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall be enforceable to the fullest extent permitted by law. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

7.6 Waivers. No action or inaction taken pursuant to this Agreement shall be deemed to constitute a waiver of compliance with any covenant, condition or agreement contained herein. The waiver by any party hereto of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach Any and all waivers shall be in writing, expressly stated to be a waiver and signed by the waiving party.

7.7 Rights and Remedies Cumulative. Unless otherwise specifically provided, the rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute or otherwise.

7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to principles of conflict of laws that would require application of the laws of any other jurisdiction. Any and all claims, controversies, and causes of action arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by the internal laws of the State of Delaware, including its statutes of limitations, without giving effect to any laws or other rules that would result in the application of the laws or statute of limitations of a different jurisdiction. Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware for the City of Wilmington (and to the extent that the Court of Chancery of the State of Delaware for the City of Wilmington does not have subject matter jurisdiction, the jurisdiction of the courts of the state and federal courts of the State of Delaware) for the purpose of any dispute arising out of or relating to this Agreement or the transactions contemplated hereby, and each of the parties hereby irrevocably agrees that all claims with respect to such disputes may be heard and determined exclusively in such courts. 

7.9 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.

7.10 Assignment. Neither party shall assign (including by operation of law or in connection with a division or allocation of assets) or subcontract this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except each party shall have the right to assign this Agreement or any of its rights or obligations under this Agreement, in whole or in part and without the prior written consent of the other party, in connection with a sale or divestiture of all or substantially all of the assets of such party. In the event of any such sale or divestiture, Inscale Technologies shall cooperate with Client to provide an orderly transition of the Services and upon Client’s request, Inscale Technologies shall provide any requested Services to the purchaser of the sold or divested business for twelve (12) months in accordance with this Agreement. Any purported assignment in violation of this Agreement shall be null and void. 

7.11 Force Majeure. Neither party shall be responsible for failure to perform under this Agreement to the extent its failure results from any of the following causes beyond its reasonable control: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, or any other cause beyond its reasonable control (collectively, “FME”). FME shall not include regulatory acts of governmental authorities, labor strike, trouble, dispute, or interruption, or non-performance of subcontractors. The affected party shall promptly notify the other party of any occurrence of an FME and abatement thereof. 

7.12 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one Agreement.

7.13 Key Personnel. Each Statement of Work shall list any key personnel (including their respective names and titles) or roles (the “Key Personnel”) and their respective responsibilities to facilitate continuity of Services during the term. Except in the event of a Key Personnel Exception, Inscale Technologies shall not reassign, replace, remove or make unavailable any such Key Personnel without the prior consent of Client. In the event of a Key Personnel Exception, Inscale Technologies shall provide prompt notice thereof to Client containing reasonable detail regarding the circumstances thereof and make commercially reasonable efforts to replace any Key Personnel with successor Key Personnel. “Key Personnel Exception” shall mean, with respect to a Key Personnel: (x) such Key Personnel’s (a) voluntary resignation or leave of absence, (b) involuntary termination by Inscale Technologies for cause, (c) inability to work due to long-term illness or disability, or (d) death.

6.14 Work Product. Inscale Technologies agrees that, as between Inscale Technologies and Client, Client shall own all right, title, and interest in and to, and Inscale Technologies hereby assigns to Client all of Inscale Technologies’ right, title, and interest in and to, all Client Data (as defined below) and the Statement of Work (in each case, including all intellectual property rights therein and thereto). "Client Data" means all data or information of the Client or any of its affiliates that is collected, processed, generated, derived, stored by or on behalf of, or transmitted to or on behalf of, Inscale Technologies in connection with this Agreement. The Statement of Work and Client Data shall constitute Client’s Confidential Information. 




MASTER SUBSCRIPTION AGREEMENT

BY ACCEPTING THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”), CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR USE OF INSCALE SERVICES. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE INSCALE SERVICES. Customer may not access the Services if Customer is Inscale’s direct competitor, except with prior written consent from Inscale. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other bench marking or competitive purposes.


Customer and Inscale Technologies, LLC (”Inscale”) (each individually a “Party” and jointly the “Parties”) hereby agree as follows:


1.SCOPE


1.1 Terms and Conditions. The terms and conditions of this Agreement apply to the software as a service offered by Inscale and any related work product (collectively “Services”), that Customer orders in an order form or other ordering document issued by Inscale (including any online forms) that specify the Services to be provided hereunder (each an “Order” and collectively, the “Orders.”) Services are made available utilizing the Saleforce.com (“SFDC”) online hosting platform and related services (“SFDC Services”), but the Services Terms and Conditions herein are specific to Inscale Services and exclude non-Inscale applications and SFDC Services, unless otherwise stated herein.

1.2 Entire Agreement. This Agreement, together with all Orders (collectively, the “Agreement”) represents the Parties’ entire understanding regarding the Services and shall control over any different or additional terms of a purchase order or other non-Inscale ordering document. No terms included in a non-Inscale ordering document shall apply to the Inscale Services. 

1.3 Purchase Orders. If Customer provides a purchase order (“PO”) to Inscale, Inscale shall reference the PO number in the applicable Order. Customer expressly agrees that terms and conditions provided under such PO shall be of no force and effect. Customer will provide any required POs promptly on signing of the Order.

2.SERVICES

2.1 Services. On the terms and conditions set forth herein, Customer hereby engages Inscale on its behalf to perform those Services mutually agreed upon in written Orders, and Inscale hereby accepts such engagement.

2.2 SFDC SERVICES. This Agreement is between Inscale and Customer. Customer acknowledges that Services are hosted for Inscale by SFDC and are also integrated as part of and are interoperable with the SFDC Services. By agreeing to the terms of this Agreement, Customer accepts and agrees to abide by the additional SFDC terms of use in the SFDC User Guide accessible via login at http://www.salesforce.com, as updated from time to time. However, to the extent SFDC and Customer have entered into a valid agreement for the SFDC Services, the terms of such agreement shall govern Customer’s use of and access to such SFDC Services in connection with the Services. Separate licensing terms may also apply for Customer’s use of the SFDC Services as made available to Customer by SFDC. Notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that Inscale shall not be responsible or liable for such SFDC Services or for the acts or omissions of SFDC.

2.3 Integration with Non-Inscale Applications. The Services may contain features designed to interoperate with Non-Inscale Applications. To use such features, Customer may be required to obtain access to such Non-Inscale Applications from their providers and comply with such provider’s applicable terms of use. If the provider of any such Non-Inscale Application ceases to make the Non-Inscale Application available for interoperation with the corresponding Services features on reasonable terms, Inscale may cease providing such Services features without entitling Customer to any refund, credit, or other compensation. Customer acknowledges and agrees that Inscale shall not be responsible or liable for any such Non-Inscale Applications or for the acts or omissions of such providers of Non-Inscale Applications.

2.4 User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) Customer shall have the right to add additional User subscriptions during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. Notwithstanding anything to the contrary contained herein, Customer shall have the right to allow others to indirectly access the Services (including through integrations or APIs), provided, that, all such access in the aggregate with respect to a particular security access level shall require a single integration User license.

2.5 Usage Limitations. Usage limitations imposed by SFDC may affect the use of Inscale’s application. Customer’s usage must comply with the Salesforce Master Subscription Agreement posted at https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/salesforce MSA.pdf in addition to the Master Subscription Agreement between the Parties. In the event of a conflict between these documents as to Salesforce’s responsibilities, rights, and liabilities, the terms of the Salesforce’s Master Subscription Agreement shall prevail. Usage limitations imposed by SFDC may affect the use of Inscale’s application. As such Services may be subject to other limitations by SFDC, such as, for example, limits on disk storage space, on the number of calls Customer is permitted to make against the Inscale application programming interface, and, for Services that enable Customer to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable Customer to monitor compliance with such limitations.

3. ACCESS TO INSCALE SERVICES

3.1 “Customer Data” means all electronic data or information submitted by Customer to be stored or processed in the Inscale platform.

3.2 Right to Use Inscale Services: Inscale grants Customer, subject to the terms and conditions of this Agreement, a non-assignable, non-transferable (except as explicitly provided in this Agreement), non-exclusive right to permit Customer’s Authorized Users to access and use the Inscale Services solely for Customer’s internal business purposes, subject to any specific usage restrictions set forth in the applicable Order.

3.3 Service Level Agreement and Support Services: Inscale will provide the Inscale Platform and support services in accordance with the Service Level Agreement Terms attached hereto as Schedule 1 and incorporated herein.

3.4 Data Protection: Inscale will maintain administrative, physical and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer Data, including measures designed to prevent access, use, modification or disclosure of Customer Data by Inscale personnel, except (i) as required to provide the Inscale Platform and prevent or address service or technical problems, or (ii) as compelled by law. After becoming aware of a security breach, Inscale will promptly (a) notify Customer of the security breach; (b) investigate the security breach, and (c) make best efforts to prevent a recurrence of the security breach. Inscale agrees to cooperate in Customer’s handling of the matter by: (i) providing reasonable assistance with Customer’s investigation, and (ii) making available relevant records, logs, files, data reporting, and other materials related to the Customer, if required to comply with an applicable data protection law.

4. RESPONSIBILITIES WITH RESPECT TO THE INSCALE SERVICES

4.1 Services. Except as expressly provided herein, Customer agrees that it will not itself, and will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the Services or any intellectual property rights in the Services or otherwise make the Services available to others other than the Customer and its Authorized Users; (ii) modify the Services in any way not authorized by Inscale; (iii) use the Services in violation of any applicable law or for any purpose or in any manner not expressly permitted in this Agreement or the applicable Order, including, without limitation to reverse engineer, de-compile, disassemble or create any derivative works of the Services not authorized by Inscale; (iv) remove or obscure any proprietary notices or labels on the Inscale Platform; or (v) infect the Services with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services.

4.2 Other Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Inscale promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. Customer is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Inscale’s Services, and maintaining the security of its equipment and account access passwords. If either Party discovers that Customer has exceeded the applicable number and type of Authorized Users in the applicable Order, or that the aggregate size of the Customer Data has exceeded the data storage capacity, such Party will immediately notify the other Party, and Customer will pay Inscale its then-current fees for such overage up to that point. Thereafter, Inscale may either (a) require Customer to either bring its usage within the limits of such restrictions or (b) increase Customer’s permitted number of Authorized Users, or data storage capacity (subject to continued payment of such fees for such overage).

4.3 Collection of Customer Data. Customer acknowledges that the collection of Customer Data is the sole and exclusive responsibility of Customer. Customer acknowledges that Inscale is not responsible in any way for any intellectual property infringement or the violation of any third party’s rights or laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising from or relating to the Customer Data. In relation to all personal data comprised within the Customer Data, Customer warrants that such personal data shall have been obtained and supplied to Inscale in compliance with applicable laws, including but not limited to data protection legislation and Customer warrants that it has obtained all necessary consents and approvals from users that are necessary to permit Inscale to provide the services under this Agreement. Customer further agrees to not use the Inscale Platform to store, process or transmit any sensitive financial information, including but not limited to any account number, credit or debit card number (with or without any required security code) or password that would permit access to an individual’s financial account, and Inscale disclaims responsibility for any such data.

5. PROPRIETARY RIGHTS

5.1 Inscale Services. Subject to the limited rights expressly granted hereunder, Inscale reserves all rights, title and fee in and to the Services and all modifications and improvements thereto, plus all related intellectual property rights. Except as expressly stated in this Agreement, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services.

5.2 Customer Data. Customer reserves all rights, title and interest in and to the Customer Data, and subject to the limited rights granted by Customer hereunder, Inscale acquires no right, title or interest from Customer under this Agreement in or to Customer Data or any intellectual property rights therein. Customer grants Inscale a limited license to copy, transmit, display and modify such Customer Data, solely as necessary for Inscale to provide services to Customer under this Agreement.

5.3 Suggestions. Inscale shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.

5.4 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, Inscale reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.5 Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer own intranets or otherwise for Customer own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

5.6 Customer Applications and Code. If Customer, a third party acting on Customer’s behalf, or a User creates applications or program code using the Services, Customer authorizes Inscale to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Inscale to provide the Services in accordance with this Agreement. Subject to the above, Inscale acquires no right, title or interest from Customer or Customer licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

6.FEES AND BILLING

6.1 Provision of Purchased Services. Inscale shall make the Services available to Customer pursuant to this Agreement and the relevant Order Forms during a subscription term. Customer agree that Customer purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Inscale regarding future functionality or features.

6.2 Fees. (i) User subscription fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order (provided, that Customer may decrease the number of User subscriptions for the next subscription term by providing notice to Inscale prior to the commencement of such term).

6.3 Payment. Customer shall pay all fees specified in all Orders hereunder in accordance with this Agreement and such Order. Fees shall not be increases during the subscription term as set forth in the Order.

6.4 Invoicing. Customer will provide Inscale with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Inscale. Upon Customer providing credit card information, Customer authorizes Inscale to charge such credit card for all Services listed in the Order for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with a different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Inscale will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Inscale and notifying Inscale of any changes to such information.

6.5 Overdue Charges. If any charges are not received from Customer by the due date, then at Inscale’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, from the date such payment was due until the date paid, and/or (b) Inscale may condition future subscription renewals and Orders on payment terms shorter than those specified in the Agreement.

6.6 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Inscale services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer have authorized Inscale to charge to Customer credit card), Inscale may, without limiting its other rights and remedies, accelerate Customer unpaid fee obligations under the Agreement so that all such obligations become immediately due and payable, and suspend the services to Customer until such amounts are paid in full. Inscale will give Customer at least 7 days’ prior notice that Customer account is overdue, before suspending services to Customer.

6.7 Payment Disputes. Inscale shall not exercise its rights herein if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

6.8 Taxes. Unless otherwise stated, fees do not include any Taxes. Customer is responsible for paying all Taxes associated with the purchases under the Order. If Inscale has the obligation to pay or collect any Taxes associated with an Order for which Customer is responsible, then the appropriate amount shall be included in the invoice and Customer agrees to pay such amount. For clarity, Inscale is solely responsible for taxes assessable against it based on its income, property or employees.

7. WARRANTIES AND DISCLAIMERS

7.1 Inscale Warranties. Inscale represents, warrants and covenants that (i) it has validly entered into this Agreement and has the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide and in accordance with the descriptions and specifications agreed between the Parties), (iii) the functionality, performance, and capabilities of the Services will not be materially decreased during the term, and (iv) the Services shall work and be compatible with the integrations set forth in any Statement of Work between the Parties and Salesforce’s or any of its Affiliates’ platforms.

7.2 Customer Warranties. Customer warrants that it has validly entered into this Agreement and has the legal power to do so.

7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7.4 Non-Inscale Services. From time to time Inscale may invite Customer to try, at no charge, products or services that are not generally available to Inscale customers ("Non-Inscale Services"). Customer may accept or decline any such trial in Customer’s sole discretion. Any Non-Inscale Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-Inscale Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-INSCALE SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. Inscale may discontinue Non-Inscale Services at any time in Inscale’s sole discretion and may never make them generally available.

8.MUTUAL INDEMNIFICATION

8.1 Indemnification by Inscale. Inscale shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Customer"), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided that Customer: (a) promptly gives Inscale written notice of the Claim Against Customer; (b) gives Inscale sole control of the defense and settlement of the Claim Against Customer (provided that Inscale may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provides to Inscale all reasonable assistance, at Inscale’s expense. In the event of a Claim Against Customer, or if Inscale reasonably believe the Services may infringe or misappropriate, Inscale may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, without breaching Inscale warranties under “Inscale Warranties” above, (ii) obtain a license for Customer continued use of the Services in accordance with this Agreement, or (iii) terminate Customer User subscriptions for such Services upon 30 days’ written notice and refund to Customer any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination, except that SFDC fees are non-refundable.

8.2 Indemnification by Customer. Customer shall defend Inscale against any claim, demand, suit or proceeding made or brought against Inscale by a third party alleging that Customer Data, or Customer use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Inscale"), and shall indemnify Inscale for any damages, attorney fees and costs finally awarded against Inscale as a result of, or for any amounts paid by Inscale under a court-approved settlement of, a Claim Against Inscale; provided that Inscale (a) promptly give Customer written notice of the Claim Against Inscale; (b) give Customer sole control of the defense and settlement of the Claim Against Inscale (provided that Customer may not settle any Claim Against Inscale unless the settlement unconditionally releases Inscale of all liability); and (c) provide to Customer all reasonable assistance, at Customer expense.

8.3 Exclusive Remedy. This Section on Mutual Indemnification states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section.

9.LIMITATION OF LIABILITY

9.1 Limitation of Liability. EXCEPT AS SET FORTH IN THIS SECTION ON LIMITATION OF LIABILITY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT RESULTING IN THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

9.2 Exclusion of Consequential and Related Damages. EXCEPT AS SET FORTH IN THIS SECTION ON LIMITATION OF LIABILITY, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THIS SECTION ON LIMITATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR THE PARTIES INDEMNIFICATION OBLIGATIONS.

10.CONFIDENTIALITY

10.1 Confidential Information. “Confidential Information” shall mean nonpublic information in tangible intangible form of the disclosing Party that disclosing Party designates as confidential or which under the circumstances surrounding the disclosure would reasonably be considered confidential. Confidential Information shall include, without limitation, information contained in design documentation relating to any programs of Inscale, Customer or Customer’s Customers to whom Services are rendered (including any source code), development level documentation, all Inscale development tools (except for publicly available tools), data files, databases, marketing plans, supplier and customer information, proprietary and technical information, business and marketing strategies and plans, and information received from others that disclosing Party is obligated to treat as confidential. Notwithstanding the foregoing, information disclosed to or acquired by recipient of the information shall not constitute Confidential Information to the extent that the recipient can demonstrate (i) such information was known to the recipient prior to the disclosure thereof by disclosing Party; (ii) such information is or thereafter becomes lawfully obtainable from other non-confidential sources; (iii) the recipient’s duty as to confidentiality is waived in writing by disclosing Party; (iv) such information was developed by employees or agents of the recipient of the information independently of and without reference to Confidential Information or other information that disclosing Party has disclosed in confidence to any third Party; or (v) disclosure thereof is required by legal process or applicable law (in which case the recipient of the information shall notify the disclosing Party prior to disclosure of such information).

10.2 Nondisclosure. Each Party acknowledges that in performance of this Agreement, it may acquire knowledge of the other’s Confidential Information. Subject to the provisions of this Section, each Party acknowledges and agrees that all of the Confidential Information disclosed to or acquired from the other Party to this Agreement shall be maintained in strict confidence and that it shall not disclose any Confidential Information to any person or entity except as required to perform this Agreement or as expressly permitted by the disclosing Party in writing. No Party shall use another Party’s Confidential Information nor circulate it within its own organization except to further the purposes of this Agreement. Each Party shall be responsible and liable to the other for any disclosure of Confidential Information by any employee, contractor, agent or other person or entity to whom such Party discloses Confidential Information of the other.

10.3 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other Party’s prior written consent.

10.4 Irreparable Harm. In addition to all other legal or equitable remedies to which a disclosing Party may be entitled to enforce this Section, both parties acknowledge that any violation of Section 10 by the non-disclosing Party would cause irreparable harm to the disclosing Party and agree that the disclosing Party shall be entitled to an immediate injunction to prevent violations of Section 9 without the necessity of proving actual harm or posting bond.

10.5 Independent Development; Residuals. Nothing in the terms of this Agreement shall be construed to limit Inscale’s or Customer’s right to independently develop or acquire products without the use of Confidential Information. Inscale or Customer shall be free to use for any purpose the Residuals resulting from access to or work with Confidential Information, provided such Party shall maintain the confidentiality of Confidential Information as provided in this Section and any other written confidentiality agreement between the Parties. For purposes of this Agreement, “Residuals” shall mean technical information related to software technology in nontangible form, which may be retained by individuals who have had access, as permitted by this Agreement, to Confidential Information, including ideas, concepts, know-how or techniques contained therein. Neither Inscale nor Customer shall have any obligation to limit or restrict the assignment of such individuals or to pay compensation resulting from the use of the Residuals. Notwithstanding the foregoing, this Section shall not be construed to grant either Inscale or Customer a license of the other Party’s copyrights or other intellectual property.

10.6 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

10.7 Customer’s Agreements. Customer shall enter into a written agreement with each of its customers to whom, or for whose benefit, Services are provided which contain the following minimum provisions: (i) provisions preventing the disclosure of Inscale’s Confidential Information substantially similar to the requirements of this Agreement; (ii) provisions disclaiming warranties and limiting liabilities for Services substantially similar to the requirements of this Agreement; (iii) provisions prohibiting the Customer from taking any actions which impair or infringe the intellectual property rights of Customer or its licensors, including Inscale; (iv) requiring the Customer not to remove or destroy any copyright notices, other proprietary markings or confidential legends placed upon or contained within an deliverable; and (v) prohibiting the solicitation, hiring or employing of employees or independent contractors of Inscale. Customer shall cause such agreements to be executed prior to the rendering of Services by Inscale. Inscale shall be a third Party beneficiary of each such agreement. Customer shall use its best efforts to assist Inscale in the protection of Inscale's legal rights and to enforce Inscale’s and applicable third Party’s intellectual property rights. Customer shall cooperate fully with Inscale in any action by Inscale in the event of an actual or threatened violation of Inscale's proprietary rights by any person or entity, including Customers of Customer.

11. TERM AND TERMINATION

11.1 Term of this Agreement. This Agreement commences on the date Customer first executes an Order and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If Customer elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

11.2 Termination. This Agreement may be terminated by Inscale immediately upon written notice in the event Customer fails to perform its obligation for payment of invoices pursuant to this Agreement. This Agreement may be terminated by a Party if the other Party commits a material breach or default of any obligation hereunder or thereunder which breach or default is not cured within 30 days after written notice of such breach or default.

11.3 Term of Purchased User Subscriptions. User subscriptions purchased by Customer commence on the start date specified in the applicable Order and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is longer), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Inscale has given Customer written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Unless otherwise specified on the order form, any such pricing increase shall not exceed 7% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order as promotional or one-time.

11.4 Termination for Cause. A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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. 

11.5 Refund or Payment upon Termination for Cause. Upon any termination for cause by Customer, Inscale shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination, except that subscription fees prepaid to SFDC are non-refundable. Upon any termination for cause by Inscale, Customer shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Inscale for the period prior to the effective date of Termination.

11.6 Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination of a Purchased Services subscription, Inscale will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Inscale shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data in Inscale systems or otherwise in Inscale’s possession or under Inscale’s control.

11.7 Survival. All Sections of this Agreement specified as surviving shall survive any termination of this Agreement. The following Sections shall survive Termination: §5. (Proprietary Rights); §6. (Fees and Billing); §7.3 (Disclaimer); §8. (Mutual Indemnification); §9. (Limitation of Liability); §11.5 (Refund); §11.6 (Return of Customer Data), and §§12.1, 12.6, 12.7, 12.8 -- 12.11 (Miscellaneous.)

12. MISCELLANEOUS

12.1 Notices. Any notices or communications required or permitted to be given regarding this Agreement shall be in English and in writing, and shall be sent via U.S. Certified Mail, Return Receipt Requested, or, by prepaid overnight or courier service, to the addresses stated in this Agreement, or such other address as shall be designated in writing by either Party to this Agreement to the other. Notices are deemed given on receipt or attempted delivery (if receipt is refused).

12.2 Independent Contractor. Each Party, in rendering performance under this Agreement is acting solely as an independent contractor. In no way is either Party to be construed as the agent of the other Party in any respect, any other provisions of this Agreement hereunder notwithstanding.

12.3 Entire Agreement; Amendments. This Agreement and the Orders together constitute the entire agreement between the Parties. This Agreement may not be amended except by the written agreement of the Parties.

12.4 Construction; Headings. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall,” and vice versa. The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement refer to this Agreement as a whole (including any Exhibits and Schedules hereto) and not to any particular provision of this Agreement. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement or any of its provisions. All references to "dollars" or "$" will be deemed references to the lawful money of the United States of America.

12.5 Severability. If any provision of this Agreement or its application to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall be enforceable to the fullest extent permitted by law.

12.6 Waivers. No action or inaction taken pursuant to this Agreement shall be deemed to constitute a waiver of compliance with any covenant, condition or agreement contained herein. The waiver by any Party hereto of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

12.7 Rights and Remedies Cumulative. Unless otherwise specifically provided, the rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any Party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute or otherwise.

12.8 Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware without regard to principles of conflict of laws that would require application of the laws of any other jurisdiction.

12.9 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.

12.10 Assignment. Neither Party shall assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

12.11 Force Majeure. Inscale shall not be responsible for failure to perform under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labor trouble or work interruption or any cause beyond its reasonable control.

12.12 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one Agreement.

12.13 Notices. Notices to Inscale provided must be addressed to Inscale and mailed as stated below. Notices to Customer may be deliver to the contact information for Customer provided in the Order.

Inscale, LLC
A North Carolina LLC
1544 Blowing Rock Road # 3716
Boone, NC 28607