CUSTORA TERMS OF SERVICE

 The following Custora Terms of Service (“Terms of Service” or “Agreement”) constitute a legal agreement between you and the entity on whose behalf you are accessing the Services (“Licensee”) and Custora, Inc. (“Custora”) relating to Custora’s  proprietary analytics platform (collectively, the “Services”). Licensee’s use of the Services is subject to the Terms of Service and conditions set forth below, so Licensee should take the time to fully understand how these Terms of Service govern Licensee’s relationship with Custora and Licensee’s use of the Services. If you have questions regarding the Terms of Service, please contact Custora at info@custora.com.
 
LICENSEE’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS OF SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON AND USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF SERVICE ON BEHALF OF LICENSEE. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS OF SERVICE ON ITS BEHALF.  IF LICENSEE DOES NOT AGREE WITH ANY PROVISION OF THE TERMS OF SERVICE, OR YOU DO NOT HAVE AUTHORITY TO BIND LICENSEE, YOU MUST CLICK THE “CANCEL” BUTTON AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.
 
Acceptance of Terms of Service.
 
By registering for the Services, Licensee agrees to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the through the Services by Custora, each of which is incorporated by reference and each of which may be updated from time to time without notice to Licensee.
 
Certain of the Services may be subject to additional Terms of Service and conditions specified by Custora from time to time; Licensee’s use of such Services is subject to those additional Terms of Service and conditions, which are incorporated into these Terms of Service by this reference.
 
These Terms of Service apply to all users of the Services, including, without limitation, employees and all others who have access to Licensee’s account with the Services.
 
Services.
 
Licensee will provide reasonable cooperation, assistance, information and access to Custora as may be necessary to initiate Licensee’s use of the Services.  Subject to all terms and conditions of these Terms of Service, Custora will provide Licensee with access to the Services.  As part of the implementation process, Licensee will identify an administrative user name and password that will be used to set up Licensee’s account.  Licensee may use the administrative user name and password to create subaccounts for its employee users (each with unique login IDs and passwords).  Licensee shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Licensee.  Custora reserves the right to refuse registration of, or to cancel, login IDs that violate the Terms of Service and conditions set forth in these Terms of Service.
 
License.
 
Subject to all terms and conditions of these Terms of Service, Custora grants to Licensee a nonexclusive, nontransferable right and license (without right to sublicense) to access and use the Services (including the Custora Materials (as defined below) necessary to use the Services), solely for Licensee’s internal business purposes.  The Services are made available to Licensee solely as hosted by or on behalf of Custora, and nothing in these Terms of Service shall be construed to grant Licensee any right to receive any copy of any software or systems used to provide the Services.  Licensee’s access and use of the Service shall comply with all other conditions set in all documentation, such as the user guide, help information, and other document regarding the Service, in each case that is provided or made available by Custora to Licensee in electronic or other form (“Documentation”).  For avoidance of confusion, this includes, for example, any requirements regarding data formats, number of permitted users or prohibited uses.
 
Feedback.
 
Licensee may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Services (“Feedback”).  All Feedback shall be solely owned by Custora (including all intellectual property rights therein and thereto) and shall also be Custora’s confidential information.  Licensee shall and hereby does make all assignments necessary to achieve such ownership.
 
Licensee Data.
 
Licensee hereby grants to Custora a nonexclusive and royalty-free right and license to access, copy, process and use all information, data and otherx content provided by Licensee in connection with its authorized use of the Services (“Licensee Data”), including all data regarding Licensee’s users that is processed by the Services, solely for the purpose of providing the Services.  Licensee agrees that (a) the Service depends on the availability of the Licensee Data and (b) Custora will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Licensee Data.  Unless otherwise expressly agreed in a writing that is signed by an authorized representative of Custora, Custora shall have no obligation store Licensee Data or Results.  Licensee shall be responsible for ensuring that Licensee Data does not contain personally identifiable information that the provision of Licensee Data conforms to Licensee’s privacy policies and all applicable laws, rules and regulations.
 
Restrictions.
 
Licensee shall not directly or indirectly (a) use any of Custora’s Confidential Information (as defined below) to create any service, software or documentation that performs substantially the same functionality as the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Services or Custora Materials (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use any Custora Property (as defined below) in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify any Custora Property, or (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns in connection with Licensee’s use of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
 
Pricing and Payments.
 
Licensee shall pay a fee for the right to use the Services (“Service Fee”) at its then-current rates or as otherwise set forth in the Order Form completed by Licensee.  Unless otherwise set forth in the Order Form, Licensee shall pay the Service Fee in advance on a calendar monthly basis. Licensee will pay the Service Fee no later than the fifth business day of each calendar month during the Term without the requirement of issuance of an invoice or purchase order.  Payments shall be made in US dollars at Custora’s address (or to an account specified by Custora), in full without set-off, counterclaim or deduction.  Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.  Licensee agrees to reimburse Custora for all costs (including attorneys’ fees) incurred by Custora in collecting late payments.  All payments required by these Terms of Service are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Licensee agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Custora’s net income.  All amounts payable by Licensee hereunder, including all Service Fees, shall be grossed-up for any withholding taxes imposed by any foreign government on Licensee’s payment of such amounts to Custora.
 
Confidentiality.
 
“Confidential Information” means, with respect to Custora, all financial, business or technical information disclosed by or for Custora in relation to these Terms of Service that is of a nature that should reasonably be considered to be confidential and proprietary.  Except for the specific rights granted by these Terms of Service, neither party (“Recipient”) may use, copy or disclose any of the other’s (“Discloser”) Confidential Information without Discloser’s written consent, and shall use reasonable care to safeguard Discloser’s Confidential Information, including ensuring that Recipient’s employees, contractors and agents (“Representatives”) with access to Discloser’s Confidential Information have a need to know for the purposes of these Terms of Service and are bound by substantially similar confidentiality obligations.  The foregoing obligations shall not apply to any Confidential Information (other than PII) that Recipient can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (c) generally available to the public without breach of these Terms of Service or (d) independently developed by it without reference to or use of any of Discloser’s Confidential Information.  Each party shall be responsible for any breach of confidentiality by its Representatives, as applicable.  Promptly upon Discloser’s request at any time, Recipient shall return all of Discloser’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom.  Nothing herein shall prevent a party from disclosing these Terms of Service or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, Recipient shall use reasonable efforts to (a) promptly notify Discloser in writing of such requirement to disclose and (b) cooperate with Discloser in protecting against or minimizing any such disclosure or obtaining a protective order.
 
Proprietary Rights.
 
Definitions.  As used in these Terms of Service: “Custora Materials” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, Report Formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by Custora in providing the Services and Results (including any correction, improvement, extension or other modification to the Services made, created, conceived or developed by or for Custora, including at Licensee’s request or as a result of feedback provided by Licensee to Custora); “Reports” means the reports, charts, graphs and other presentation in which the Results are presented to Licensee; “Report Formats” means the formatting, look and feel of the Reports; and “Results” means the work products resulting from the Services that are delivered to Licensee by Custora through the Services, and which are based on the Licensee Data.  For the sake of clarity, Results shall expressly exclude all Custora Materials. 
 
b. Results and Licensee Data.  Licensee shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Results and Licensee Data.  Licensee acknowledges and agrees that the Results will be presented to it in a Report, the Report Format of which is proprietary to Custora.  Licensee may make copies of the Reports only for its internal purposes in using the Results.  Licensee agrees to grant Custora a non-exclusive royalty-free right and license to use the Results, solely for purposes of providing the Services to Licensee and for Custora’s internal business purposes. 
 
c. General Learning; Aggregate Data.   Licensee agrees that Custora is free to disclose aggregate measures of Services usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during provision of the Services (including without limitation, that which it could have acquired performing the same or similar services for another customer).  Licensee further agrees that (a) Custora shall have the right to create compilations and analyses of Licensee Data and Results (“Aggregate Data”) and to create reports, studies, analyses and other work product from Aggregate Data (“Analyses”) and (b) Custora shall have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other customers and prospective customers of the Services; provided, however, that Custora shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Licensee Data or in a manner in which the identity of any individual person can be reasonably ascertained. 
 
d. Reservation of Rights.  Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Custora (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service, Documentation, Custora Materials, Aggregate Data, and Analyses (collectively, “Custora Properties”).
 
Term and Termination.
 
a. Term. These Terms of Service shall commence on the date Licensee (or an authorized representative on its behalf) clicks “ACCEPT” below (the “Effective Date”) and shall continue in effect until terminated by either party. 
 
b. Termination.  This agreement shall remain in effect for the length defined in the Order Form.
 
c. Effects of Termination.  Upon any expiration or termination of these Terms of Service, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these Terms of Service shall survive, and (b) the provisions titled Feedback, Confidentiality, Proprietary Rights, Warranties and Disclaimers, Indemnification, Limitation of Liability, Effects of Termination and General Provisions shall survive.  Unless otherwise agreed in writing and signed by an authorized representative of Custora, Custora has no obligation to retain any Licensee Data or Results after the Term and will destroy all Licensee Data and Results in its possession within ninety (90) days after the end of the Term; provided, upon Licensee’s written request received within thirty (30) days after termination, Custora will deliver to Licensee a copy of the Licensee Data then currently stored by Custora (in the same format maintained by Custora).
 
Warranties and Disclaimers.
 
a. Licensee Data.  Licensee represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Licensee Data as may be necessary to permit the use contemplated under these Terms of Service.  Licensee bears all responsibility and liability for the accuracy and completeness of the Licensee Data and Custora’s access, possession and use as permitted herein.  In addition, Licensee represents and warrants that it has and will maintain a privacy policy that fully and accurately discloses to its users that information is collected, disclosed to and processed by third party providers like Custora in the manner contemplated by the Services.
 
b. Disclaimers. THE SERVICES AND RESULTS ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND.  WITHOUT LIMITING THE FOREGOING, CUSTORA MAKES NO WARRANTY (I) THAT THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (II) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICES, OR (III) THAT ANY ERRORS IN THE SERVICES CAN OR WILL BE CORRECTED.  CUSTORA HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
 
Indemnification.
 
Licensee agrees to indemnify and hold harmless Custora against any claims, losses, liabilities, costs and expenses incurred in connection with (a) any actual or alleged breach of Licensee’s representations and warranties, (b) Licensee’s unauthorized use of the Services or other Custora Properties, and (c) Licensee’s use of the Results, including any modifications thereto or any combination of the Results with any other data or information, and (d) any actual or alleged violation by Licensee or the rights of any third party (including intellectual property rights or any rights of privacy or publicity).
 
Limitation of Liability.
 
IN NO EVENT SHALL CUSTORA BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS OF SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PRECEDING TWELVE (12) MONTH PERIOD.  THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
 
Governing Law and Jurisdiction.
 
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.
 
Entire Agreement and Severability.
 
These Terms of Service are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Custora and Licensee with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
 
Modification.
 
No waiver, consent or modification of these Terms of Service shall bind Custora unless in writing and signed by the party against which enforcement is sought.  Custora may modify these Terms of Service at any time upon notice to Licensee (which may be by posting a notice through the Services); provided, however, if Licensee does not agree to the modified Terms of Service, Licensee shall notify Custora in writing within thirty (30) days, in which case the previous Terms of Service will apply to use of the Services for any period for which Licensee has previously paid the Service Fee, after which Licensee’s right to use the Services shall immediately terminate and Custora shall have no further responsibility or liability to you.  The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights.
 
Miscellaneous.
 
a. Force Majeure. Custora shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
 
b.  Assignment. These Terms of Service and the rights and obligations hereunder may not be assigned, in whole or in part, by Licensee without Custora’s prior written consent.  These Terms of Service shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
 
c. Independent Contractors. The parties shall be independent contractors under these Terms of Service, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
 
d. Notices. Unless otherwise specified in these Terms of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to info@custora.com.
 
  e.  Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
 
Effective Date of Terms of Service: 2012-02-02