Subscription Service Agreement

Version Date: January 17, 2020

THIS SUBSCRIPTION SERVICE AGREEMENT AND ITS CORRESPONDING ORDER (COLLECTIVELY REFERRED TO AS THIS “AGREEMENT”) GOVERN SUBSCRIBER’S USE OF UPSWIFT LTD.’S SUBSCRIPTION SERVICE. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SUBSCRIPTION SERVICE. BY ISSUING AN ORDER REFERENCING THIS AGREEMENT, OR BY ACCEPTING THIS AGREEMENT BY ANY ONLINE OR DIGITAL PROCESS, OR BY USING THE SUBSCRIPTION SERVICE, SUBSCRIBER HEREBY ACCEPTS THE TERMS AND CONDITIONS SET OUT BELOW. THE INDIVIDUAL ACCEPTING THIS AGREEMENT HEREBY REPRESENTS THAT SUCH INDIVIDUAL IS AN AUTHORIZED REPRESENTATIVE OF SUBSCRIBER AND IS AUTHORIZED TO OBLIGATE SUBSCRIBER TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, AND SUCH INDIVIDUAL ACKNOWLEDGES THAT UPSWIFT RELIES ON SUCH REPRESENTATION IN ENTERING INTO THIS AGREEMENT. UPSWIFT MAY MODIFY THIS AGREEMENT FROM TIME TO TIME, AND CHANGES TO THIS AGREEMENT WILL BE POSTED ON THE UPSWIFT WEBSITE AND REVISIONS WILL BE INDICATED BY VERSION DATE. SUBSCRIBER AGREES TO BE BOUND TO ANY CHANGES TO THIS AGREEMENT WHEN SUBSCRIBER USES THE SUBSCRIPTION SERVICE AFTER ANY SUCH MODIFICATION BECOMES EFFECTIVE. MODIFICATIONS TO THIS AGREEMENT WILL BECOME EFFECTIVE THIRTY (30) DAYS AFTER NOTICE TO SUBSCRIBER.

UPSWIFT AND SUBSCRIBER ACKNOWLEDGE HAVING READ THIS ENTIRE AGREEMENT AND ALL OF ITS ATTACHMENTS AND AGREE TO BE BOUND THEREBY. IF SUBSCRIBER AND UPSWIFT HAVE ALREADY MUTUALLY EXECUTED A SEPARATE AGREEMENT GOVERNING THE SUBSCRIPTION SERVICES, THEN THAT OTHER AGREEMENT SHALL APPLY IN PLACE OF THESE TERMS, NOTWITHSTANDING ANY ELECTRONIC ACCEPTANCE REQUIRED IN ORDER TO USE THE SUBSCRIPTION SERVICE.

DEFINITIONS. Any capitalized terms used in this Agreement that are not otherwise defined in this Agreement shall have the meaning as set forth below in Section ‎13 of this Agreement. SUBSCRIPTION SERVICE.

Subject to the terms of this Agreement, UPSWIFT will use commercially reasonable efforts to provide Subscriber with the Subscription Service in accordance with the Documentation. Subject to compliance by Subscriber with the terms of this Agreement, UPSWIFT authorizes Subscriber, through its Authorized Users, to access and use the Subscription Service during the Term for its internal business purposes in accordance with the Documentation. This authorization is non-exclusive and non-transferrable. Subscriber Data will remain available and accessible to Subscriber in accordance with the data retention schedule associated with the subscription tier ordered by Subscriber. Following such period, the Subscriber Data will be deleted from the Subscription Service and will be no longer be available to Subscriber. If Subscriber desires continued access to the Subscriber Data, then it is Subscriber’s responsibility to download the Subscriber Data prior to the scheduled date of deletion.

Although UPSWIFT has no obligation to monitor Subscriber’s use of the Subscription Service, UPSWIFT may do so and may prohibit any use of the Subscription Service it believes may be (or alleged to be) in violation of this Agreement. No rights or licenses are granted by UPSWIFT except as expressly set forth herein.

SUPPORT SERVICES.

As part of Support Services, UPSWIFT may, from time to time, develop and implement into the Subscription Service enhancements, upgrades, updates, improvements, modifications, extensions and other changes (“Updates”). Updates implemented into the Subscription Service shall be deemed part of the Subscription Service. Subscriber hereby authorizes UPSWIFT to implement such Updates. Subject to the terms hereof, UPSWIFT will provide Subscriber with reasonable technical support for the Subscription Service in accordance with the terms set forth on the UPSWIFT website.

PROFESSIONAL SERVICES.

An Order for Professional Services shall specify the specific Professional Services ordered, any accompanying specifications and applicable pricing.

RESTRICTIONS AND RESPONSIBILITIES.

Subscriber shall not (and shall not permit others to) do the following with respect to the Subscription Service: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share, operate as a service bureau, or otherwise make any of it available for access by third parties; (ii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Service; (iii) disassemble, reverse engineer, or decompile it; (iv) copy, create derivative works based on or otherwise modify it, (v) remove or modify a copyright, trademark, logo or other proprietary rights notice or brand labeling in it; or (vi) publish or release any benchmarking or performance data applicable to the Subscription Service. Subscriber represents, covenants, and warrants that Subscriber will use the Subscription Service only in compliance with the Documentation and all applicable laws and regulations. Subscriber hereby agrees to indemnify and hold harmless UPSWIFT against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing restrictions. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber’s account or the Equipment with or without Subscriber’s knowledge or consent. Subscriber is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of this Agreement. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Service and will notify UPSWIFT immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Subscriber acknowledges that the successful and timely provision of the Subscription Service shall require the good faith cooperation of Subscriber. UPSWIFT shall not be liable for any failure to provide the Subscription Service that arises from Subscriber’s failure to cooperate in good faith with UPSWIFT. Subscriber must not transfer to the Subscription Service, and must not modify, configure or use the Subscription Service to track, collect, or to cause to be collected by or transferred to the Subscription Service, any Subscriber Data that is personally identifiable information, financial information, health/medical information, or other sensitive information (for example, Social Security Numbers). Subscriber shall be solely responsible for ensuring that the Subscriber Applications and Subscriber’s use of the Subscription Service, including without limitation Subscriber’s provision of Subscriber Data to UPSWIFT through the Subscription Service complies with all applicable laws, rules, and regulations.

CONFIDENTIALITY; PROPRIETARY RIGHTS.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of UPSWIFT includes non-public information regarding features, functionality and performance of the Subscription Service. Proprietary Information of Subscriber includes the Subscriber Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Subscription Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without violation of this Agreement, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law, as advised by the Receiving Party’s legal counsel. UPSWIFT shall own and retain all right, title and interest in and to (a) the Subscription Service and all Updates thereto, (b) any software, applications, inventions or other technology developed in connection with the performance by UPSWIFT of Professional Services or Support Services, and (c) all intellectual property rights related to any of the foregoing. Subscriber shall own all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to UPSWIFT a worldwide, non-exclusive, fully paid-up license to use the Subscriber Data in any manner reasonably necessary to perform the Subscription Service, Professional Services and Support Services. Subscriber represents and warrants that Subscriber owns all right, title and interest in and to the Subscriber Data or has a license granting it the rights necessary to permit it to grant the foregoing license. It is Subscriber’s responsibility to download those portions of the Subscriber Data that Subscriber wants to retain prior to permanent deletion by UPSWIFT in accordance with UPSWIFT data retention policy. UPSWIFT shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Service and related systems and technologies (including, without limitation, information concerning Subscriber Data and data derived therefrom), and UPSWIFT will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Subscription Service and for other development, diagnostic and corrective purposes in connection with the Subscription Service and other UPSWIFT offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. Subscriber acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about the Subscription Service provided by Subscriber to UPSWIFT are non-confidential and UPSWIFT (as well as any designee of UPSWIFT) shall be entitled to the unrestricted use and dissemination of this information for any purpose, commercial or otherwise, without acknowledgment or compensation to Subscriber.

PAYMENT OF FEES.

Subscriber will pay UPSWIFT the then applicable fees described in the Fee Schedule and Order for the Subscription Service and Professional Services in accordance with the terms therein (the “Fees”). Additionally, if Subscriber’s use of the Subscription Service exceeds the service capacity set forth on the Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Subscriber shall be billed for such excess usage and Subscriber agrees to pay the additional fees in the manner provided herein, and at the price set forth in the Order. Fees for Professional Services will be invoiced monthly, or as otherwise set forth in an Order. UPSWIFT reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term specified in an Order or thencurrent renewal term, upon thirty (30) days prior notice to Subscriber (which may be sent by email). If Subscriber believes that UPSWIFT has billed Subscriber incorrectly, Subscriber must contact UPSWIFT no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Except for the foregoing adjustment or credit, all payments are final and non-refundable. Subscriber acknowledges that the Fees are based on Subscriber’s access requirements as provided to UPSWIFT by Subscriber. If Subscriber exceeds the ordered capacity, then overages shall be handled and charged as indicated on the Fee Schedule or Order, as applicable. In the event Subscriber wishes to expand its usage, Subscriber may purchase additional subscriptions to the Subscription Service by executing separate Orders hereunder. UPSWIFT may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by UPSWIFT thirty (30) days after the mailing date of the invoice payable in full. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees, and may result in suspension or termination of the Subscription Service. Subscriber shall be responsible for all taxes associated with Subscription Service, and other services provided under this Agreement, other than U.S. taxes based on UPSWIFT’s net income. All payments shall be made in U.S. dollars unless otherwise agreed by UPSWIFT in writing. All payments are final. At reasonable times and upon reasonable prior notice, UPSWIFT may audit the business records of Subscriber to ensure compliance with the terms of this Agreement. UPSWIFT will bear all costs of audits unless an audit shows material non-compliance by Subscriber, in which case Subscriber will bear all reasonable expenses incurred by UPSWIFT to perform the audit.

TERM AND TERMINATION.

Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the Order, and, unless otherwise provided in an Order, shall be automatically renewed for additional periods equal to the initial service term (collectively, the “Term”) at UPSWIFT’s then current prices, unless either party requests termination prior to the end of the then-current term. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement, and does not cure such breach within the thirty (30) day notice period. Upon termination or expiration of this Agreement, Subscriber shall cease to access the Subscription Service. Subscriber will pay in full for the Subscription Service up to and including the last day on which the Subscription Service is provided. Upon any termination, UPSWIFT will make all then-current Subscriber Data available to Subscriber for electronic retrieval for a period of thirty (30) days, but thereafter UPSWIFT may, but is not obligated to, delete stored Subscriber Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

WARRANTY AND DISCLAIMER.

UPSWIFT shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Service in a manner which minimizes errors and interruptions in the Subscription Service and shall perform the Professional Services and Support Services in a professional and workmanlike manner. The Subscription Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by UPSWIFT or by third-party providers, or because of other causes beyond UPSWIFT’s reasonable control, but UPSWIFT shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. UPSWIFT DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SUBSCRIPTION SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SUBSCRIPTION SERVICE AND PROFESSIONAL SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS IS” AND UPSWIFT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

INDEMNITY.

UPSWIFT shall defend and hold Subscriber harmless from liability to third parties resulting from infringement by the Subscription Service of any United States patent or any copyright or misappropriation of any trade secret, provided UPSWIFT is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. UPSWIFT will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to infringement claims arising from (i) a modification of the Subscription Service by any party other than UPSWIFT; (ii) a combination of the Subscription Service with other software products, processes or materials not supplied by UPSWIFT; or (iii) use of the Subscription Service not in accordance with this Agreement or the Documentation. If, due to a claim of infringement, the Subscription Service is held by a court of competent jurisdiction to be or is believed by UPSWIFT to be infringing, UPSWIFT may, at its option and expense (a) replace or modify the Subscription Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Subscriber a license to continue using the Subscription Service, or (c) if neither of the foregoing is commercially practicable in UPSWIFT’s judgment, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber a refund of any fees prepaid to UPSWIFT and not used for the remainder of the Subscription Service.

LIMITATION OF LIABILITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, UPSWIFT AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OF THE SUBSCRIPTION SERVICE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR LOSS OF BUSINESS OR REVENUE; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR UNAUTHORIZED ACCESS TO THE SUBSCRIPTION SERVICE; (D) FOR ANY MATTER BEYOND UPSWIFT’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES RECEIVED BY UPSWIFT FOR THE SUBSCRIPTION SERVICE UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT UPSWIFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MISCELLANEOUS.

Publicity. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers and vendors in accordance with the other party’s standard guidelines. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Amendment. No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties, unless otherwise provided for herein. Assignment. This Agreement is not assignable, transferable or sublicensable by Subscriber except with UPSWIFT’s prior written consent. UPSWIFT may transfer and assign any of its rights and obligations under this Agreement without consent. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Subscriber does not have any authority of any kind to bind UPSWIFT in any respect whatsoever. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Law and Jurisdiction. All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Agreement shall be governed and construed by the law of Delaware, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against a party arising out of or related in any respect to this Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over New Castle County, State of Delaware. The parties hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Notwithstanding the foregoing, UPSWIFT may seek equitable relief in any applicable jurisdiction in an action for protection of UPSWIFT’s intellectual property. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. Force Majeure. UPSWIFT shall not be responsible or liable for any loss, damage, delay or failure to act caused by war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, interruption to or absence of energy supplies, lock outs, strikes, other labor disputes, the failure of UPSWIFT’s suppliers or carriers to meet their contractual obligations, or, without limitation, any other cause beyond UPSWIFT’s reasonable control (“Force Majeure Event”). No Export. Subscriber may not remove or export from the United States or allow the export or re-export of the Subscription Service, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. U.S. Government Usage. As defined in FAR section 2.101, the Subscription Service and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. High Risk and Restricted Data Activities. The Subscription Service is not fault-tolerant and is not designed, manufactured or intended for use or resale (i) as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Subscription Services could lead directly to death, personal injury, or severe physical or environmental damage or (ii) for containing or processing health, financial or other similar restricted or sensitive data that is regulated under law including, but not limited to HIPAA (Health Insurance Portability and Accountability Act), GLBA (Gramm-Leach-Bliley Act) or similar federal or state data security statutes (“High Risk and Restricted Data Activities”). UPSWIFT and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk and Restricted Data Activities. Data Backup. The Subscription Service will maintain certain data transferred for the purpose of the performance of the Subscription Service. Although UPSWIFT performs regular routine backups of data, Subscriber is primarily responsible for all data that Subscriber has transferred (including Subscriber Data) or that relates to any activity you have undertaken using the Subscription Service. Subscriber agrees that UPSWIFT shall have no liability to Subscriber for any loss or corruption of any such data, and Subscriber hereby waives any right of action against UPSWIFT arising from any such loss or corruption of such data.

DEFINITION SECTION.

“Affiliate” shall mean any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Authorized Users” shall mean the employees or agents of Subscriber, as well as contractors performing services for Subscriber, who are authorized to access and use the Subscription Service. “Documentation” shall mean the UPSWIFT product documentation relating to the operation and use of the Subscription Service, including technical program documentation, user manuals, operating instructions and release notes, as updated from time to time by UPSWIFT. “Order” shall mean any order form, format, or process, that represents the purchase of the Subscription Service executed by Subscriber and UPSWIFT, and that references and incorporates by reference this Agreement. “Professional Services” shall mean any implementation, training, consulting, data migration, conversion, integration or other services provided by UPSWIFT to Subscriber, as set forth or referenced in an Order. “Resident Software” shall mean certain downloadable software components that Subscriber must deploy on Subscriber’s servers and/or Subscriber Applications for data collection and communication that is required for performance of the Subscription Service. “Subscriber Application” shall mean a software application of Subscriber for which Subscriber has instructed the Subscription Service to monitor and gather error, troubleshooting and other status and operational data. “Subscriber Data” shall mean electronic data about Authorized User activity and Subscriber Applications that is collected and processed in the Subscription Service. “Subscription Service” shall mean the web-based software-as-a-service offering of UPSWIFT that gathers and provides data for troubleshooting and other operational issues for the Software Applications, and other Subscriber network functions and activities, and also includes the Resident Software. “Support Services” shall mean the provision of Updates as set forth in Section ‎3.1 hereof and technical support as set forth on the UPSWIFT website. “Term” shall have the meaning ascribed thereto in Section ‎8.1 hereof.