This Hearsay Main Terms of Service (“Agreement”) is entered into and effective as of the complete execution of a valid Order Form, Statement of Work, or Proof Of Concept Agreement (“Software Ordering Agreement”)(“Effective Date”) by and between Hearsay Social, Inc., a Delaware corporation, doing business as Hearsay Systems, and its Affiliates, with offices at 2261 Market Street, Ste. 5397, San Francisco, CA 94114 (collectively, “Hearsay”) and the affiliates and parent companies of the other party who signs the Software Agreement(collectively, “Customer”).

This “Agreement” consists of this Hearsay Main Terms of Service together with the following ancillary documents, each of which is incorporated herein by reference: (1) the applicable Software Ordering Agreement; (2) Hearsay’s Product-Specific Terms; (3) Hearsay’s Data Protection Agreement; (4) Hearsay’s Service Level Agreement; (5) Hearsay’s Information Security Overview; and (6) Hearsay’s End User License Agreement. In case of conflict between any of the foregoing ancillary documents and the Hearsay Main Services Agreement, or between any two of the ancillary documents, unless expressly provided otherwise, the Hearsay Main Services Agreement will control, and then the terms of the ancillary documents will take priority over one another according to the order in which they appear in this paragraph. Copies of each of the ancillary documents are available at https://www.hearsaysystems.com/company/legal or upon request. 

Hearsay may update the terms of this Agreement from time to time in its sole discretion. Hearsay will provide you with written notice of any material updates at least thirty (30) days prior to the date the updated version of this Agreement is effective, unless such material updates result from changes in laws, regulations, or as required by the Terms of Use of each of Hearsay’s External Service(s) and Thirty-Party Carrier providers (each, as defined below). Updated versions of this Agreement will be available at https://www.hearsaysystems.com/company/legal/main-terms-of-service. You can find archived versions of this Agreement at https://info.hearsaysystems.com/rs/563-XTR-001/images/Hearsay-Master-Terms-and-Conditions-2022.pdf. 

Regardless of receipt of notice, your continued use of the Services on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, and constitutes your acceptance of the updated version of this Agreement. The updated version of this Agreement supersedes all prior versions. If you do not agree to the updated version of this Agreement, you must stop using the Services immediately.

1. Definitions 

‍All capitalized terms used in this Agreement retain their definitions as stated in this Section 1 or in the section of the Agreement in which they are first used.

• 1.1.  “Affiliates” means any entity which is Controlled that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity (including a parent company).
• 1.2.  “Anonymized Aggregated Data” means Suggestions as well as data created from a set of proprietary algorithms, surveys and features of SaaS that analyze Customer Data to produce reports, performance metrics and other usage analytics of the SaaS.  
• 1.3.  “API” means application programming interfaces used to connect software and applications to different software and applications.
• 1.4.  “App(s)” means Hearsay’s individual proprietary technologies designed to function within SaaS, as further described in the Product-Specific Terms to this Agreement. 
• 1.5.  “Business Hours” has the meaning specified in the Service Level Agreement which shall be incorporated by reference into and form a part of the Agreement. 
• 1.6.  “Confidential Information” has the meaning specified in Section 8.1 (Definition).
• 1.7.  “Control” means where one entity holds at least a majority ownership in the other entity, or holds an interest in the other entity that is no less than any other party and holds the power to direct or cause the direction of the management or policies of such other entity, whether through the ownership of voting securities, by contract, or otherwise.
• 1.8.  “Covered Cellular Communications” means any SMS or MMS sent or received, or any phone call placed or received from one phone number that begins with a US country code and is on a US cellular network at the time of origination of receipt to another phone number that begins with a US country code and is on a US cellular network at the time of origination of receipt.
• 1.9.  “Customer” means the entity that has executed a Software Ordering Agreement subject to the terms of this Agreement.
• 1.10.  “Customer Claim” has the meaning specified in Section 10.1 (Intellectual Property Indemnification).
• 1.11.  “Customer Data” means all User Data, Customer Materials and any other information, whether proprietary or not, submitted to or through the Services.
• 1.12.  “Customer Equipment” means all software, systems and hardware used by Customer in connection with this Agreement, including as necessary for User to access and use the Services, and which is not supplied by Hearsay. 
• 1.13.  “Customer Indemnified Parties” has the meaning specified in Section 10.1 (Intellectual Property Indemnification).
• 1.14.  “Customer Materials” means any material uploaded or submitted by Customer to the Services including, but not limited to, any images, photographs, graphics, audio clips, video clips or text.  
• 1.15.  “Customer Relationship Manager System” or “CRM System” means the technology system that Customer uses to manage and analyze its customer interactions and data. 
• 1.16.  “Data Protection Legislation” has the meaning specified in a Data Protection Agreement (DPA) executed between the parties which shall be incorporated by reference into and form a part of this Agreement upon full execution by the parties. 
• 1.17.  “Delivery” has the meaning specified in Section 3.3 (Delivery).
• 1.18.  “Disclosing Party” has the meaning specified in Section 8.1 (Definition).
• 1.19.  “Documentation” has the meaning specified in Section 2.4 (App Descriptions; Documentation).
• 1.20.  “Downtime” has the meaning specified in the Service Level Agreement.  
• 1.21.  “DPA” has the meaning specified in Section 2.6 (Data Privacy).
• 1.22.  “External Service(s)” means a third-party provider network used within the Services to distribute and receive communications between a User and the public. External Services includes the descriptions provided in the Product-Specific Terms. External Services does not include Subprocessors.
• 1.23.  “Hearsay Indemnified Parties” has the meaning specified in Section 10.5 (Indemnification by Customer).
• 1.24.  “Hearsay Materials” means any materials provided by Hearsay to Customer to be used with the Services, but are segregable from SaaS including, but not limited to, any training materials, photographs, illustrations, graphics, audio clips, video clips or text. 
• 1.25.  “Hosting Services” means the configuration, systems software, software utilities, firmware, embedded software, and connectivity, and other facilities that Hearsay uses to maintain Availability (as defined in the Service Level Agreement) of the Service. 
• 1.26.  “Implementation Services” means services performed by Hearsay at the direction of Customer to configure the Apps.
• 1.27.  “License” means a unit of measurement in which an App or other Service is licensed as further described in the Product-Specific Terms which are incorporated by reference into and form a part of this Agreement.
• 1.28.  “International Cellular Communications” means any SMS or MMS sent or received, or any phone call placed that is not a Covered Cellular Communications
• 1.29.  “Order Form” means an ordering document executed by the parties which represents the terms of Customer’s subscription to the Service, including but not limited to the number of Licenses ordered, training and other services provided hereunder, and the applicable fees. Order Forms are governed by and incorporate the terms of this Agreement. Such additional Order Forms shall expressly refer to this Agreement and shall be set forth as further described in the Product-Specific Terms.
• 1.30.  “Order Form Term” means the period for which Hearsay shall license the Services to Customer pursuant to an Order Form.
• 1.31.  “Personal Data” has the meaning specified in the Data Protection Agreement.
• 1.32.  “Receiving Party” has the meaning specified in Section 8.1 (Definition). 
• 1.33.  “Renewal Order Form Term” has the meaning specified in Section 5.2 (Order Form Term Renewal)
• 1.34.  “SaaS” means Hearsay’s software-as-a-service proprietary technology, and all programs and programming, software, works of authorship, graphical user interfaces, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information made available with the Services.
• 1.35.  “Service” or “Services” means (i) Apps licensed pursuant to an Order Form; (ii) Hosting Services; (iii) Success Services; and (iv) any additional services provided by Hearsay as further specified in an Order Form or SOW.
• 1.36.  “Statement of Work” or “SOW” means an agreement that may define the scope of Implementation Services provided by Hearsay to Customer for SaaS.  At minimum, a SOW shall provide a description of Implementation Services to be performed, timeline, and any applicable fees.
• 1.37.  “Subprocessor” means a third party engaged by Hearsay to provide a service or processing function that involves customer data. This data may include personal information as defined by law.  Subprocessor includes Hearsay’s hosting provider and Third-Party Carriers. 
• 1.38.  “Subscription Fee” means the annual fees associated with providing the Services for all purchased Licenses to Customer during the Term and are set forth in detail in an Order Form.
• 1.39.  “Success Services” means the set of services provided by Hearsay that involve the analysis, repair, troubleshooting and general assistance with the App and Hosting Services during the Term.
• 1.40.  “Suggestions” means any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer (including by Users) to Hearsay.
• 1.41.  “Telemarking Laws” has the meaning specified in Section 4.1(E) (Customer Responsibilities).
• 1.42.  “Term” has the meaning specified in Section 5.1 (Duration).  
• 1.43.  “Third-Party Carrier” means a provider of mobile and telecommunications infrastructure for messaging and calls sent and received through Hearsay Relate App
• 1.44.  “User Data” means data, content or information submitted or received by a User to the Service or made available by a User via such User’s provision of access for the Apps to User’s accounts with an External Service. 
• 1.45.  “User” or “Users” means any individual or entity (whether Customer’s employees, its agents, or contractors) who is given access to the Services either by Hearsay pursuant to Customer’s request or directly by Customer via an administrative account. An administrative account holder is a User that has an Administrator’s license and privileges for additional capabilities such as configuration and/or supervision.

2. Software-as-a-Service 

• 2.1.  License by Hearsay.  Hearsay hereby grants Customer and Customer Affiliates, during the applicable Order Form Term or Software Ordering Agreement, a worldwide, non-exclusive, non-transferable (except with a permitted assignment of this Agreement), non-sublicensable (except to Users) license to access and use SaaS (as identified in applicable Order Forms) in accordance with the terms of this Agreement and all Order Forms.  As between the parties, Hearsay exclusively owns SaaS. Other than as expressly set forth in this Section 2.1, this Agreement does not convey to Customer, Customer Affiliates, or Users any rights of ownership or license in or to Services, including to any intellectual property rights contained in the Services.  All rights not expressly granted to Customer, Customer Affiliates, or Users are reserved by Hearsay. 
• 2.2.  Transferability.  SaaS is licensed on a per App basis.  Each User shall be granted access to each individual App of SaaS that is licensed by Customer.  Licenses for one App cannot be transferred or substituted to secure Licenses to a differing App.  Notwithstanding the foregoing, Customer may substitute the License of a discontinued User for a specific App to a new User of the same App at any time during the Order Form Term. 
• 2.3.  App-Specific Terms.  Unique terms and conditions of each App currently available for licensing are appended to this Agreement as separate Exhibits within the Product-Specific Terms. Unique terms and conditions for any additional Apps offered for licensing after the Effective Date that are included as part of an Order Form or otherwise made available by Hearsay as part of a Software Ordering Agreement shall be considered to be part of this Agreement.
• 2.4.  App Descriptions; Documentation.  The specific features and capabilities of each App are described at https://www.hearsaysystems.com/company/legal, and may be updated by Hearsay from time-to-time in Hearsay’s sole discretion. Such updates may be included, but are not limited to, the content located at the link above (the “Documentation”). 
• 2.5.  External Service Dependencies. Certain App features that interoperate with External Services depend on the continuing availability and level of performance of the External Service’s general functions (including API availability). Customer hereby acknowledges that the agreed-on pricing and terms for the Services under this Agreement are contingent on the functionality and compatibility of the External Services and the API with the Apps as of the Effective Date, the prices (if any) charged to Hearsay by the External Services as of the Effective Date, and on the policies, procedures, and practices of the External Services as of the Effective Date. If an External Service changes its API, content or network availability for use with the App such that the change affects Hearsay’s ability to deliver the App in accordance to the requirements of this Agreement or any Order Form, begins to charge for access or increases the cost of access, or changes it policies, procedures, or practices, Hearsay may, at its exclusive option and in its sole discretion, select an alternate External Service to continue to provide the Service, pass through additional Fees for ongoing use, impose additional terms for ongoing use, cease offering certain functionalities of the Services related to the applicable External Service, or modify or create workaround solutions for those Service features. If Hearsay ceases to offer certain functionality, or determines that the change to the External Service materially degrades the performance of the Service, Hearsay shall first notify Customer in writing of the change, including any additional terms or fees that may apply with respect to the External Service and the list of features and functionality of the Services that will be materially degraded or can no longer be provided altogether because of the change by the External Service. Within thirty (30) days of receipt of Hearsay’s written notification to Customer of a change to the External Service that results in a loss of functionality or materially degrades the performance of the Services, Customer may elect to:
    
  (A) mutually agree upon a workaround solution or development of additional functionality (such functionality and delivery to be detailed in a subsequent Order Form) to the Services; or
  ‍
  (B) terminate the relevant Order Forms for the materially degraded Services in accordance with its terms, in which case Hearsay will issue to Customer a refund of the pro-rata portion of prepaid Subscription Fees paid by Customer in anticipation for delivery of the no longer offered or materially degraded Services calculated as of the effective date of termination. All other Services licensed by Customer that are not removed or materially degraded by the change to the External Service shall remain unaffected; or 
       
  (C) accept the loss of functionality or material degradation to the Service for the remainder of the Order Form Term, in which case Hearsay will, in Hearsay’s sole discretion, reduce Subscription Fees in proportion to the reduced Service and refund to Customer the corresponding pro rata portion of any prepaid Subscription Fees paid for the period after the effective date of the reduction in Service. 
  ‍
  The foregoing remedies in Sections 2.5(A), 2.5(B), and 2.5(C) shall be Customer’s sole and exclusive remedy for a change to the Services as set forth within this Section 2.5. 
  ‍
• 2.6.  Data Privacy. Hearsay’s Data Protection Agreement (the “DPA”) is incorporated by reference into the Agreement. To the extent that any Customer Data is subject to the Data Protection Legislation, Hearsay shall process such Customer Data in accordance with the DPA.

3. Hosting, Implementation and Success Services

• 3.1.  Hosting Services.  Hearsay shall provide Hosting Services to make the Service available to Customer and the Users in accordance with the Service Level Agreement.
• 3.2.  Information Security.  Hearsay shall comply with the security measures as described in the Information Security Overview, which shall be incorporated by reference into and form a part of this Agreement. 
• 3.3.  Delivery; Sandbox, and Trials.  Services are delivered for Customer to access upon execution of this Agreement and the applicable Software Ordering Agreement (“Delivery”). Customer shall receive an introductory email upon execution, at which point Customer may begin using the Services.  Prior to the execution of an Software Ordering Agreement or this Agreement, Hearsay may, in its sole discretion, provide access to a sandbox, trial, or partial versions of the Apps. None of Hearsay’s warranties, support obligations, or other Hearsay obligations pertaining to the Apps will apply to any sand box, trial, or partial version of the Apps provided to Customer before Delivery unless otherwise agreed to in a Proof of Concept (POC). 
• 3.4.  Implementation Services.  Hearsay shall provide the Implementation Services set forth in the respective Order Form or SOW to configure the SaaS to mutually agreed-on settings. Hearsay’s obligation to provide the Implementation Services is conditioned on Customer making all reasonably necessary internal arrangements and providing all necessary information to facilitate the timely performance of any Implementation Services, and providing sufficient qualified personnel who are capable of performing Customer’s duties, responsibilities, and obligations under the Order Form or SOW.  
• 3.5.  Success Services.  During the Term, Hearsay shall provide Customer with Success Services for the Services in accordance with Hearsay’s troubleshooting categorizations and standard response procedures, described further within Hearsay’s Product and Services Catalog at no additional charge. Hearsay may offer additional Success Services than those provided in the Product and Services Catalog; any such additional Success Services, and any fees associated with the additional Success Services, shall be set forth in a separate Order Form or SOW. Hearsay may change its Success Services at any time during the Term, provided that, for any changes that materially degrade the Success Services, Hearsay shall use reasonable efforts to provide Customer with at least thirty (30) days’ written notice before such changes become effective. Hearsay is under no obligation to provide Success Services for any code, content or other materials that were not developed, implemented or modified by Hearsay. Hearsay provides a range of training and education to support the use of the Services. Initial training provided to Customer is described in the relevant Order Form or SOW. Additional training may be made available and provided upon request at Hearsay’s then-current standard rates.
• 3.6.  Updates. Hearsay may, in its sole discretion and in the ordinary course of business, provide bug fixes, updates, and improvements to the Apps (“Updates”) during the Term. Hearsay will use commercially reasonable efforts to provide Customer with thirty (30) days advance notice of material and planned Updates that affect the functionality of the Apps or if such Updates will require Downtime during Business Hours. Customer shall implement all reasonably required modifications to Customer’s systems in accordance with the timing and conditions specified by Hearsay, at Customer’s sole expense. Customer shall promptly apply new Updates as soon as Hearsay makes them available. Hearsay’s obligations, if any, to support or otherwise provide Success Services pertaining to old versions of the Apps are solely as outlined in the Service Level Agreement.

4. Customer’s Use of the Service

• 4.1.  Customer’s Responsibilities.  Customer is responsible for all activities that occur under User accounts. Customer shall:
  
  (A) have sole responsibility for the accuracy of all Customer Materials;
  ‍
  (B) ensure all Users understand and comply with all restrictions applicable to the Services, including those under this Agreement, in the EULA, in the Documentation, and as set forth in the Product-Specific Terms
  ‍
  (C) provide sufficient disclosure to Users that Hearsay monitors Users’ activities on the Services and collects Anonymized Aggregated Data;
  
  (D) prevent unauthorized access to, or use of, the Services, and notify Hearsay promptly of any such unauthorized use; and
       
  (E) comply with all applicable laws, guidance and standards in using the Services, including, but not limited to, the Data Protection Legislation, those relating to email, text message, or telephone communications, including the federal Telephone Consumer Protection Act, the Telecommunications Sales Rule (TSR), the Telemarketing and Consumer Fraud and Abuse Prevention Act, the United States’ National Do Not Call Registry, and any other laws and regulations applicable to the national list of consumers who may not be called for marketing purposes maintained by the Federal Trade Commission (“FTC”), as well as any applicable state “do not call list” regulation, the Florida Do Not Call Act, the Oklahoma Telephone Solicitation Act, Rules for Carriers Subpart L “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” (together, the “Telemarketing Laws”); Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”); the FTC Act; the Children’s Online Privacy Protection Act; and the Computer Fraud and Abuse Act. 
• 4.2.  General Restrictions on Use of Services.  Customer shall use the Services solely for its business purposes in accordance with this Agreement. When using the Services, Customer, including its Users, shall not: 
  
  (A) license, sublicense, sell, resell, rent, lease, loan, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party except as expressly authorized in this Agreement;
  
  (B) modify, copy, or create derivative works based on the Services; 
  
  (C) reverse engineer the Services or access the Services to either build a competitive product or service, or build a product or service using or copying similar ideas, features, functions or graphics of the Services;
  
  (D) access, alter, or destroy any information of any customer of Hearsay by any fraudulent means or device, or attempt to do so;
  
  (E) send or store material on or through the Services containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; 
  
  (F) interfere with or disrupt the integrity or performance of the Services or the data contained therein; 
  
  (G) attempt to gain unauthorized access to the Services or its related systems or networks; 
  
  (H) use or distribute the Service in violation of any applicable laws, regulations or export restrictions; 
  
  (I) violate any acceptable use policy or other terms of service for an External Service when submitting communications to the External Service via the Services, including but not limited to any supplemental guidelines such as Community Standards, Advertising Policies, or Commercial Terms; or 
  
  (J) violate the terms of any restrictions on use of an App as set forth in the Product-Specific Terms.
• 4.3.  Customer Data and Materials.  To the extent that Customer provides Hearsay with Customer Data or Customer Materials, such information is provided for the sole purpose of aiding Hearsay with respect to its performance hereunder. Except as described in Section 4.4 (Suggestions and Anonymized Aggregated Data) below, Hearsay makes no claim to any right, title and interest in any Customer Data or Customer Materials. Customer hereby grants to Hearsay a non-exclusive, non-transferable license to use the Customer Data and Customer Materials solely for providing Services and responding to service or technical problems with the Services.
• 4.4.  Suggestions and Anonymized Aggregated Data.  From time to time, Hearsay may solicit feedback from Customer (including Users) regarding use and performance of the Services, regarding new or improved Services, or otherwise. To the extent that Customer provides any Suggestions, whether or not solicited by Hearsay, Hearsay owns all right, title and interest in and to the Suggestions, even if Customer has designated the Suggestions as confidential or otherwise as Customer’s proprietary information. Hearsay shall be entitled to use any Suggestions without restriction, attribution, or notice to Customer, including incorporation of Suggestions into the Services.  Furthermore, Hearsay may use Anonymized Aggregated Data to provide the Services or for generating analysis and reporting (e.g., optimal time to post on social media) as well as to provide industry insights, provided that any Anonymized Aggregated Data does not, and cannot be used, reverse engineered, or otherwise decompiled on its own or in combination with other data to identify Customer, Confidential Information, or any specific User.  Except as otherwise expressly stated herein or as required by law, Hearsay will not use Customer Materials, Customer Data or User Data for any other purpose.     
• 4.5.  Personal Data.  Customer will provide all notices, obtain all consents, and take all other steps necessary to comply with the Data Protection Legislation and Customer’s privacy policy, in order for Customer to collect and disclose to Hearsay, and for Hearsay to use, all Customer Data for the purposes as set out in this Agreement. 
• 4.6.  Customer Backup. Customer will be responsible for performing full and complete weekly backups and or daily incremental backups of its programs, files, and data relating to both the Customer Equipment and the Services, and shall be solely responsible for any failures in the Services due to problems with the Customer Equipment.

5. Term and Termination

• 5.1.  Duration.  The Agreement will begin on the Effective Date, and will last until terminated in accordance with this Section (the “Term”).‍
• 5.2.  Order Form Term Renewal. Order Form Terms will automatically renew for subsequent periods equal to the initial Order Form Term (each, a “Renewal Order Form Term”) unless either party gives the other party written notice of nonrenewal at least sixty (60) days prior to the end of the current Order Form Term. Hearsay may change the Subscription Fees for a Renewal Order Form Term by providing written notice via e-mail to Customer at least sixty (60) days prior to the end of the then-current Order Form Term, which revision shall be effective at the beginning of the upcoming Renewal Order Form Term.
• 5.3.  Suspension of Services. Hearsay shall have the right to immediately suspend Customer’s or a User’s right to access or use any portion of the Services upon written notice to Customer if Hearsay determines that: 
  
  (A) Customer or a User (as applicable) has violated any of Customer’s obligations set forth in Section 4 (Customer’s Use of Service); or
  
  (B) activity under Customer’s or a User’s account may adversely impact the Service or Hearsay’s security practices.
  
  Hearsay shall not delete any Customer Data residing within the Service during any suspension period. Hearsay shall restore access to the Services upon Customer’s cure under Section 5.3(A) above, or upon Hearsay’s reasonable determination that the security of the Services is no longer compromised under Section 5.3(B).

• 5.4.  Termination for Cause.  Either party may terminate this Agreement or any Software Ordering Agreementfor cause: 
  
  (A) if the party gives written notice of a material breach of this Agreement to the other party, and such other party fails to cure such breach within thirty (30) days after receiving such notice, or 
  
  (B) if either 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 that is not dismissed or stayed within sixty (60) days.
  
  No termination of this Agreement or any Software Ordering Agreement will relieve Customer of its obligations to pay all fees accrued or payable to Hearsay prior to the effective date of termination, and any such fees shall be paid by Customer on or before such effective date.

• 5.5.  Effect of Termination.  On the termination or non-renewal of any Software Ordering Agreement, Hearsay’s obligations and the rights granted by Hearsay hereunder related to such Order Form shall immediately terminate, and Customer shall cease using the Services related to an Order Form. On the termination or expiration of this Agreement, Customer will immediately return or destroy, at Hearsay’s written election, all Hearsay Confidential Information, including all copies of Hearsay Confidential Information and all materials incorporating Hearsay Confidential Information, in Customer’s possession or control, and shall immediately cease any remaining use of the Services. ‍
• 5.6.  Transition Services. Upon termination (but no later than thirty (30) days after termination), Customer will provide written direction for the transition of Customer Data. Hearsay will make available to Customer for download a file of Customer Data in a standard format within thirty (30) days of receipt of written direction from Customer. Thereafter, or if no written directions are provided, Hearsay shall have no obligation to maintain or provide to Customer any Customer Data. 
  Survival. The following provisions shall survive termination or expiration of this Agreement: 4.4 (Suggestions and Anonymized Aggregated Data), 6.1 (Fees), 8 (Confidentiality), 10.5 (Indemnification by Customer), 11 (Limitation of Liability), and 13.7 (Governing Law).

6. Fees & Payment

• 6.1.  Fees. Customer shall pay Subscription Fees for the Services and other related fees as specified in the applicable Software Ordering Agreement. Unless explicitly stated otherwise, all monetary denominations quoted in an invoice, or Software Ordering Agreement shall be in United States dollars ($USD). Unless otherwise expressly stated herein, Subscription Fees are non-refundable. Hearsay may revise Subscription Fees for Services licensed pursuant to an Order Form pursuant to Section 5.2. 
• 6.2.  Reconciliation. During the Order Form Term, Hearsay may perform a reconciliation of the number of Users actually using the Services against the number of Licenses purchased by Customer pursuant to Order Forms. Hearsay shall provide notice to Customer of its excess use, and no less than 30 days later may issue an invoice to Customer for such excess use at the then-current rates and minimum add-on number indicated in the Order Form, prorated from the date of the overage notification through the remainder of the applicable Order Form Term.
• 6.3.  Invoicing; Payment. Customer may request that Hearsay submit invoices electronically via a third-party invoicing system, and Hearsay, in its sole discretion, retains the right to reject any invoicing mechanisms other than email. If Hearsay agrees to use a third-party invoicing system, Hearsay reserves the right to pass through to Customer any actual costs imposed by the third-party platform. By electing to receive and pay Hearsay invoices via a third party invoicing platform, Customer also agrees to input references provided by Hearsay into such platform and to provide immediate confirmation or acknowledgement of receipt of an inquiry regarding invoicing logistics that is sent by Hearsay’s Accounts Payable team. Customer is responsible for whitelisting emails from Hearsay to ensure receipt and acknowledgement. All Fees are due within thirty (30) days of the applicable invoice date, unless otherwise specified in the Software Ordering Agreement. All amounts paid or payable to Hearsay in connection with the Services are nonrefundable.
• 6.4.  Late Payments. If Customer’s account is thirty (30) days or more past due, Hearsay may charge Customer a late-payment fee of one percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less on such overdue amounts and suspend the Service until such amounts are paid. Customer may not be able to purchase additional Licenses while such overdue amounts are pending. Subscription Fees associated with the number of Licenses identified in an Order Form may not be disputed by Customer, even if Customer’s actual use of Licenses may be less than the amount ordered. Hearsay may accept any partial payment without prejudice to any rights or remedies available to Hearsay under law, equity, contract, or otherwise, including Hearsay’s right to recover, and Customer’s obligation to pay the balance of the amount due. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. 
• 6.5.  Taxes.  Hearsay’s fees exclude any and all local, state, federal or foreign taxes, levies, tariffs, assessments or duties of any nature to the exclusion of income taxes (“Taxes”). Customer is responsible for paying all Taxes arising from the payment of the fees and delivery of the Services, including but not limited to those taxes associated with the valid jurisdiction of Customer’s bill-to address as indicated on a Software Ordering Agreement and provided by Customer. If Hearsay has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Hearsay with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for self-assessing any additional taxes are payable in the relevant jurisdictions and remitting such taxes to the appropriate tax authorities based on the Customer’s jurisdiction.
• 6.6.  Third-Party Carrier Fees; International Cellular Communications. If Customer elects to purchase International Cellular Communications, such purchase will be detailed as a separate line item in an Order Form. Such pricing will be based on additional Fees charged by the Third-Party Carrier, which will be passed on to Customer at cost. Additional agreements may be required in order to add International Cellular Communications and the terms thereof are subject to change in Hearsay’s sole discretion subject to the terms of the international Third-Party Carrier(s).

7. Insurance

• 7.1.  Insurance Coverage. Upon reasonable written request, Hearsay agrees to provide a copy of its current business insurance coverage to Customers no more than once during a twelve-month period of an active Software Ordering Agreement Term. Any such COI provided by Hearsay shall be considered the exclusive property of Hearsay and must be treated as Confidential Information.

8. Confidentiality

• 8.1.  Definition. The term “Confidential Information” means all confidential and proprietary information of either party (“Disclosing Party”) discloses to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, pricing and terms reflected in the Order Form or Statement of Work, Customer Data, Personal Data, Customer Materials, SaaS, the Service, the Apps, business and marketing plans, reference lists, technology and technical information, product designs, code, and business processes of each party, which is confidential to such party.
• 8.2.  Confidentiality.  Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written permission. Each party may permit access to Confidential Information of the other party to those of its employees or authorized representatives who have a need to know (including auditors, bankers, attorneys and potential parties to acquisition, divestiture, or similar transactions to facilitate the due diligence and closing of the transaction) and have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as strict as those in this Section 8.2. Receiving Party agrees to protect Confidential Information of Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If Receiving Party is compelled by law or a government authority to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior written notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest or limit such disclosure.  
• 8.3.  Exclusions.  Confidential Information shall not include any information that: 
  
  (A) is or becomes publicly available without breach of any obligation owed to Disclosing Party; 
  
  (B) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party;
  
  (C) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or 
  
  (D) is received from a third party without breach of any obligation owed to Disclosing Party.

• 8.4.  Return of Confidential Information. On the termination or expiration of this Agreement or otherwise at Disclosing Party’s written request, Receiving Party will immediately return or, as Disclosing Party may direct in writing, destroy all copies of Disclosing Party’s Confidential Information in its possession or control, and so certify by an authorized representative, except for copies Receiving Party is required to keep for legal or regulatory purposes.  Hearsay may retain any Confidential Information of Customer retained within any backup tapes or other redundancy systems of the Services for the remainder of the redundancy retention period, any Confidential Information that is required to be retained pursuant to Section 5.6 (Transition Services), and any Confidential Information segregable from the Services residing with Hearsay’s internal networking system kept for the purposes of recordkeeping (e.g., all Order Forms, SOWs, and any confidential emails between the parties).‍
• 8.5.  Supremacy. To the extent that the parties have entered into a non-disclosure agreement prior to this Agreement, the parties expressly agree that the terms of this Section 8 (Confidentiality) supersede and replace entirely the obligations of the respective parties under the non-disclosure agreement, and that such prior agreement is hereby terminated and, notwithstanding anything to the contrary contained in such prior agreement, of no further effect.

9. Warranty

• 9.1.  Customer Warranties. Customer warrants that:
  
  (A) It has the legal power to enter into this Agreement;
  
  (B) Is has been duly authorized in accordance with its organizing documents to enter into this Agreement; 
  
  (C) Customer shall comply with, and Customer shall ensure that any and all activities it undertakes in connection with this Agreement shall be performed in compliance with, all applicable laws and regulations, including the Data Protection Legislation and Telemarketing Laws;
  
  (D) Customer owns all rights to the Customer Data, or Customer otherwise has the right to transfer such Customer Data to Hearsay and its Subprocessorss;
  
  (E) Customer Data does not contain any software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; 
  
  (F) It will comply with the obligations under section 4.1 (Customer Responsibilities) and Section 4.2 (General Restrictions on Use of Services); and 
  
  (G) The Customer Data, and the transference of the Customer Data and its use by Hearsay under this Agreement, does not violate the Data Protection Legislation, this Agreement, any other agreement to which Customer is a party (including any publically-facing privacy policy or notice), and does not and will not infringe upon or violate any rights of any third party or cause injury to any person or entity.

• 9.2.  Hearsay Warranties.  Hearsay warrants that: 
  
  (A) It has the legal power to enter into this Agreement;
  
  (B) It has been duly authorized in accordance with its organizing documents to enter into this Agreement;
  
  (C) the Services comply with all laws applicable to Hearsay in the jurisdiction(s) in which it conducts business and in the jurisdiction(s) for which or in which it is providing Services to Customer, including the Data Protection Legislation, anti-money laundering, anti-bribery and anti-corruption laws, and, for Services provided in the United States, including the Foreign Corrupt Practices Act, and the Gramm-Leach-Bliley Act; and
  
  (D) the Services will be performed in a manner consistent with general industry standards applicable to services similar to the Services. 
  
  Nothing within this Section 9.2 (Hearsay Warranty) diminishes or otherwise relieves Hearsay’s obligation to provide Success Services during the Term. 

• 9.3.  Remedies for Breach of Warranties. Customer’s sole and exclusive remedy for breach of warranty under Section 9.2(A) or 9.2(B) (Hearsay Warranty) shall be the right to terminate for breach under this Agreement. If Customer declares a breach of warranty under Section 9.2(C), or 9.2(D), then Customer’s sole and exclusive remedy shall be for Hearsay to re-perform the non-conforming Services at no cost to Customer.  If the foregoing remedy is not commercially reasonable, at Hearsay’s sole determination, Hearsay may terminate the Agreement or the affected Software Ordering Agreement, and refund to Customer any unearned, prepaid Subscription Fees paid by Customer for the non-conforming Services as of the effective date of termination. 
• 9.4.  Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 (HEARSAY WARRANTIES), HEARSAY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND HEARSAY HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. HEARSAY DOES NOT WARRANT THAT THE SERVICE OR ANY OTHER MATERIALS OR TECHNOLOGY WILL BE PROVIDED ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY CHANGE, AND THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.2 (HEARSAY WARRANTIES) AND THAT NO WARRANTIES ARE MADE BY ANY OF HEARSAY’S LICENSORS, SUPPLIERS, CONTRACTORS, EXTERNAL SERVICE PROVIDERS, OR OTHER SERVICE PROVIDERS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FEES OFFERED UNDER THIS AGREEMENT REFLECT THESE NEGOTIATED WARRANTY PROVISIONS. TO THE EXTENT THAT HEARSAY CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.

10. Indemnification

• 10.1.  Intellectual Property Indemnification. Hearsay shall, at its expense, defend Customer and its officers, directors, and employees (“Customer Indemnified Party(ies)”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service, as provided to Customer hereunder, infringes the intellectual property rights of such third party (each, a “Customer Claim”), and shall pay any damages finally awarded by a court or agreed to by Hearsay in a settlement of such Customer Claim.
• 10.2.  Process.  To seek defense and indemnification for a Customer Claim, Customer must:
  
  (A) promptly give written notice of the Customer Claim to Hearsay; 
  
  (B) give Hearsay sole control of the defense and settlement of the Customer Claim (provided that Hearsay may not agree to any settlement that imposes any liability or obligation on Customer without Customer’s consent); and 
  
  (C) provide Hearsay with all reasonable assistance in providing a defense to the Customer Claim. 

• 10.3.  Exceptions.  Hearsay shall have no obligation to indemnify Customer regarding a Customer Claim pursuant to Section 10.1 or otherwise regarding claims that arise from or relate to: 
  
  (A) Customer’s use of the Service other than as specified in this Agreement; 
  
  (B) any modifications to the Service made by any entity or person other than Hearsay or its authorized agents;
  
  (C) any combination of the Service with other products, services, equipment, software, data, or technologies not provided by Hearsay; 
  
  (D) content provided by External Services or Customer Materials; or 
  
  (E) Customer’s use of the Service or any portion thereof after the termination or expiration of this Agreement or the relevant Order Form.      

• 10.4.  Responsibilities.  If Hearsay believes that a Customer Claim is likely to be made, or if a Customer Claim has been made, Hearsay may, at its sole discretion: 
  
  (A) obtain a license which permits Customer to continue to use the potentially infringing portion of the Service; 
  
  (B) modify the Service to avoid the potential infringement; or 
  
  (C) if, in Hearsay’s discretion, the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the infringing portion of the Service and refund the prorated portion of any unearned pre-paid Subscription Fees applicable to the portion of the terminated Service to be provided after the termination date. 
  
  The foregoing remedy shall be Customer’s sole and exclusive remedy for a Customer Claim.

• 10.5.  Indemnification by Customer.  
  
  (A) General.  Customer shall, at its expense, defend, indemnify and hold harmless Hearsay and its officers, directors and employees (“Hearsay Indemnified Party(ies)”) against any and all claims, demands, losses, costs, damages (including agreed to in any settlement), or expenses (including reasonable attorneys’ fees), made, brought, or claimed against any Hearsay Indemnified Party arising from or related to: 
  
       1. Customer’s or its Users’ breach of this Agreement, including, without limitation, any of the restrictions under Section 4.1, 4.2, and the Product-Specific Terms, or breach of applicable law, including the Data Protection Legislation or Telemarketing Laws; or      
  
       2. Customer’s or its Users’ fraud, willful misconduct, or negligence, (each, a “Hearsay Claim”).
  
  (B) Responsibilities.  Customer shall pay any damages finally awarded by a court or agreed to by Customer in a settlement of such Hearsay Claim; provided, that Hearsay: 
  
       1. promptly gives written notice of the Hearsay Claim to Customer; 
  
       2. gives Customer sole control of the defense and settlement of the Hearsay Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Hearsay); and 
  ‍
       3. provides Customer, at Customer’s cost, with reasonable assistance in connection therewith.

11. Limitation of Liability

• (I)  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (II) IN NO EVENT SHALL HEARSAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO HEARSAY HEREUNDER IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE INITIAL EVENT FOR WHICH A PARTY RECOVERS DAMAGES HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS OF THIS SECTION 11 SHALL NOT APPLY TO OR OTHERWISE LIMIT LIABILITY ARISING OUT OF THE BREACH OF THE OBLIGATIONS UNDER SECTIONS 8 (CONFIDENTIALITY), 9.1 (CUSTOMER WARRANTIES), AND 10 (INDEMNIFICATION), OR OUT OF CUSTOMER’S OR ITS USERS’ BREACH OF ANY RESTRICTIONS ON USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION SECTION 4 (CUSTOMER’S USE OF THE SERVICE), AND ANY RESTRICTIONS ON USE OF THE SERVICES IN THE PRODUCT-SPECIFIC TERMS.  THE PARTIES ACKNOWLEDGE THAT THIS SECTION 11 (LIMITATION OF LIABILITY) REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES, THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND NO OTHER CLAUSE REGARDING LIMITATION OF LIABILITY SHALL CONTROL NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER DOCUMENT. THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN.

12. Publicity

• 12.1.  Website.  After the Effective Date, Hearsay may use Customer’s name and logo to reference it as a Hearsay customer, including but not limited to, on the Hearsay public website.  
• 12.2.  General. Except as provided under Section 12.1, Hearsay may not use Customer’s name in any advertisement, press release, or in any other public message without first obtaining Customer’s consent, which Customer may withhold at its discretion. Hearsay may insert Customer’s name in a list of customers included in its annual report or in presentations given or documents provided to a limited number of people and not to the public at large. Hearsay will notify Customer (which notification will be given, where permitted by law, before any disclosure is made to such regulator) in the event any regulator of Customer has inquiries about the subject matter of the Agreement or any matter involving Customer.

13. General

• 13.1.  Relationship of the Parties.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
• 13.2.  Notices.  All notices under this Agreement shall be in writing and shall be deemed to have been given when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt, or when verified by automated receipt or electronic logs if sent by facsimile or email. 
  
  (A) Notices to Hearsay shall be addressed to the attention of: The Legal Department, with a copy to its Director of Legal at the address mentioned at the beginning of this Agreement and legal@hearsaycorp.com. 
  (B) Notices to Customer shall be addressed to the attention of the designated signatory of this Agreement at Customer’s address stated at the beginning of this Agreement.

• 13.3.  Force Majeure. Except for payment obligations of amounts due under this Agreement, each party will be excused from performance of its obligations under this Agreement to the extent that performance is rendered impossible by an event or circumstance beyond that party’s reasonable control, such as earthquake, fire, flood, governmental action, pandemic, worldwide illness, epidemic, outbreak, quarantine, or labor disruptions, provided that such party gives prompt written notice thereof to the other party. Any failure occasioned by the foregoing shall be remedied as soon as reasonably possible.   
• 13.4.  Waiver; Severability.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of such right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
• 13.5.  Assignment.  Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement; provided, however, that: (i) Customer shall give Hearsay at least 90 days’ written notice of any such assignment; and (ii) if the acquiring party is subject to its own agreement with Hearsay: (a) Hearsay may, in Hearsay’s sole discretion, and after a reasonable transition period set by Hearsay in its sole discretion, transfer Customer’s Users under this Agreement to be users under the acquiring party’s agreement, who will be subject to the terms, including the pricing, of the acquiring party’s agreement, and terminate this Agreement; and (b) Customer shall provide all reasonable assistance to facilitate a smooth transition. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 
• 13.6.  Remedies.  Other than as expressly stated herein, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. Pursuant to Section 8 (Confidentiality), in the event the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of its confidentiality obligations, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use will cause irreparable harm to the Disclosing Party for which any other available remedies may be inadequate, without the necessity of proving actual damages or posting bonds, in addition to any other relief as may be granted by a court of competent jurisdiction. In the event a party uses or threatens to use the other party’s intellectual property rights in a manner that is or would be a violation of this Agreement, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized use will cause irreparable harm to the non-breaching party for which any other available remedies may be inadequate, without the necessity of proving actual damages or posting bonds, in addition to any other relief as may be granted by a court of competent jurisdiction.
• 13.7.  Governing Law.  This Agreement shall be governed by the laws of the State of Delaware, without reference to provisions on conflict of law. The state and federal courts located in Delaware,shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 13.7 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.
• 13.8.  EULA. Prior to receiving access to the Services, each User shall be presented with an end user license agreement (“EULA”), which shall provide notification of the User of the existence of this Agreement, including potential restrictions of use, as well as a notification statement from Hearsay that all activities performed using the Services may be monitored, recorded, processed and analyzed by Hearsay. By using the Services, the Customer agrees that the EULA shall be incorporated by reference into and forms a part of this Agreement.
• 13.9.  Value-Added Services. From time to time, Hearsay may conduct beta offerings or partner with third-party providers to enhance the Applications. Customer acknowledges that any such offerings are not considered part of the Application and is offered by third-parties that may require execution of a separate end-user license agreement regarding the use conditions before the offerings may be used. For the avoidance of doubt, External Services shall not include Value-Added Services unless explicitly stated by Hearsay. Hearsay in its sole discretion may impose additional terms or pass through costs for the continued use of Value-Added Services. 
• 13.10.  Entire Agreement. This Agreement, including all schedules and ancillary documentation, and addenda attached hereto, referenced herein, or referencing this Agreement or the Software Ordering Agreement (including other terms referenced in any of those documents), constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
• 13.11.  Counterparts.  This Agreement may be executed in counterparts, which taken together shall form one legal instrument.  Each party may sign this Agreement using electronic or handwritten signature, which are of equal effect, whether on original or electronic copies.
  
  BY SIGNING AN ACCOMPANYING SOFTWARE ORDERING AGREEMENT, the duly authorized representatives of each party acknowledges that it has carefully read and fully understands this Agreement, and each agrees to be bound by the terms of the Agreement.  This Agreement will become effective on the Effective Date of the Software Ordering Agreement.