These terms and conditions shall constitute the SERVICES AGREEMENT (the “Agreement”) as of this date (the “Effective Date”), by and between PierAhead LLC, located at 292 NEWBURY ST. # 301, Boston, MA 02115 (“PierAhead”), and the Subscriber (each a “Party” and collectively the “Parties”).

RECITALS

1. PierAhead provides the [PierAhead Dashboard],  a data platform which enables a subscriber to monitor for specified online retailers, sponsored brands, sponsored products and organic rankings (collectively, the “Dashboard”).

2. Subscriber wishes to receive access to the Dashboard, and PierAhead wishes to provide such access to the Dashboard for such purpose as described below, pursuant to the terms and conditions set forth in this Agreement.

For good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. DEFINITIONS

   1. Administrator means an individual designated by Subscriber who has authority to manage its respective Authorized Users of the Dashboard.

   2. Affiliate means any Person that directly or indirectly through one or more intermediaries, is Controlled by, or is under common Control of a Party, only for so long as such Control continues to exist.

   3. Authorized User means an individual granted permission by an Administrator to access and use the Dashboard.

   4. Control or Controlled means the possession, directly or indirectly, of the legal power to direct or cause the direction of the management policies of such Party, company or other entity.

   5. Deliverables means materials to be developed and delivered by PierAhead for or to Subscriber, as specifically agreed to between the Parties in the applicable Order Form in connection with the Dashboard.

   6. Law means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction that is applicable to the applicable Party.

   7. Order Form means a written order signed by both parties, which are hereby, by this reference, incorporated into this Agreement.

   8. Representatives means a respective Party’s officers, directors, employees, contractors, and agents.

   9. PierAhead Platform means  [PierAhead Dashboard],  a data platform which enables a subscriber to monitor for specified online retailers, sponsored brands, sponsored products and organic rankings.   For the avoidance of doubt, the PierAhead Platform includes any and all improvements, updates and other modifications made thereto that may be made available or accessible in connection with this Agreement.

   10. Support Services means support services provided by PierAhead in relation to the PierAhead Platform, as described in more detail in an Order Form.

   11. Term means the Initial Term and any Renewal Terms, collectively, as further described below.

2. DATA SERVICES

   1. Grant of Rights to Subscriber.

      1. Subject to the terms and conditions of this Agreement, PierAhead grants to Subscriber a non-exclusive, non-transferable right, to designate the number of Authorized Users within Subscriber who can access the PierAhead Platform during the Term as set forth in more detail in an Order Form.

      2. Subscriber shall cause each of its Administrators and Authorized Users to comply with all applicable obligations imposed on Subscriber under this Agreement as well as any end user documentation provided to Administrators and Authorized Users by PierAhead, and Subscriber shall be responsible and liable for any and all breaches by any such persons. Subscriber will promptly notify PierAhead of any unauthorized use of the PierAhead Platform that comes to Subscriber’s attention and provide reasonable cooperation to PierAhead in connection therewith as part of PierAhead’ efforts to further investigate such situation and terminate such use. If an Administrator or Authorized User of Subscriber fails to comply with all applicable obligations imposed on Subscriber under this Agreement, then PierAhead may terminate such Administrator’s or Authorized User’s access thereto upon written notice to Subscriber. Subscriber will ensure that no individual uses the Support Services through its account unless such individual is an Administrator or Authorized User.

      3. If agreed upon by the Parties in an Order Form, PierAhead will perform Support Services for Subscriber, as described in more detail in such Order Form and subject to the terms and conditions of this Agreement.

      4. Subscriber acknowledges that the Support Services will be performed in cooperation with Subscriber personnel. In addition, Subscriber will furnish to PierAhead in a timely manner such (i) descriptions, specifications, and other information (collectively, “Subscriber Information”), (ii) cooperation, technical assistance, resources, and support, and (iii) access to Subscriber’s equipment, systems and networks, in each case, as reasonably necessary or appropriate to enable PierAhead to perform the Support Services. Subscriber hereby grants PierAhead a nonexclusive and royalty-free right and license to use the Subscriber Information for the purpose of performing the Support Services. Subscriber agrees that in performing the Support Services, PierAhead (a) will use and rely primarily on the Subscriber Information and (b) does not assume any responsibility for the accuracy or completeness of any Subscriber Information and will not undertake to verify its accuracy or completeness.

      5. Neither party shall issue any press release or other publicity without the prior review and written consent of the other (which may be provided by email), provided, however, that PierAhead may, during the term of this Agreement include Subscriber name and logo on published (print or virtual) customer list and in other verbal communications. Neither party shall reasonably delay or withhold consent if the content of the publicity is accurate and does not violate any other conditions of the agreement.

      6. PierAhead reserves the right, in its sole discretion, to make any change to the PierAhead Platform  that it deems necessary or desirable to: (i) maintain or enhance (a) the quality or delivery of the PierAhead products or services to its customers, (b) the competitive strength of or market for PierAhead’s product or services or (c) the cost efficiency or performance of the PierAhead products or services; provided that such changes do not have a material adverse impact on the performance of the Support Services or (ii) to comply with Law. PierAhead shall use commercially reasonable efforts to provide Subscriber with at least thirty (30) days’ prior written notice of any change to the Support Services which is necessitated by a change in applicable Law and which is expected to have a material adverse impact on the performance of the Support Services.

      7. Subscriber acknowledges and agrees that the Support Services may operate with other products and services operated or provided by third-parties (collectively, “Third-Party Services”). PierAhead is not responsible or liable for any Third-Party Services, any materials or information made available or provided by any Third-Party Services (collectively, “Third-Party Materials”), or the availability or operation of the Support Services to the extent such availability or operation is dependent upon Third-Party Services. Unless otherwise expressly agreed to by the Parties in the applicable Order Form, Subscriber is solely responsible for procuring any and all rights necessary for it to access Third-Party Services. Subscriber shall comply with any and all applicable terms or conditions related to any Third-Party Services or Third-Party Materials that are delivered to or made available to Subscriber (“Third Party Services Agreements”). PierAhead does not make any representations or warranties with respect to any Third-Party Services or any Third-Party Materials. Any exchange of data or other interaction between Subscriber and a third-party provider is solely between Subscriber and such third-party provider and is governed by Third-Party Services Agreements. Subscriber agrees to defend, indemnify and hold harmless PierAhead and its Representatives from any third-party claims, actions or suits, as well as any expenses, liabilities, damages, settlements, costs, fees and/or amounts owed by PierAhead or any of its Representatives to a third-party provider, arising from Subscriber’s breach of any Third-Party Services Agreements. Notwithstanding anything to the contrary in this Agreement, Subscriber acknowledges that PierAhead can stop providing the Third-Party Services or any Third-Party Materials to Subscriber at any time.

   2. Use of Data Services.

      1. Subscriber hereby represents and warrants that, as between the Parties, it alone is responsible for and has secured all rights, consents and authorities for Subscribers, Administrators, and Authorized Users, to use or permit the use of the Support Services. Subscriber agrees to defend, indemnify and hold harmless PierAhead and its Representatives from any third-party claims, actions or suits, as well as any expenses, liabilities, damages, settlements, costs, fees and/or amounts owed by PierAhead or any of its Representatives to a third-party provider, arising from Subscriber’s breach of this provision.

      2. Subscriber shall not and shall not permit any other person or entity to, access or use the PierAhead Platform except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Subscriber shall not, directly or indirectly through one or more other persons, engage in any of the following activities or authorize any other person or entity to do so, except as this Agreement expressly permits: (i) modify, create derivative works of, rent, lease, lend, assign, sublicense, sell, publish, transfer, make available or otherwise permit third parties to use any part of the PierAhead Platform, (ii) decompile, disassemble or reverse engineer any part of the PierAhead Platform or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas or algorithms of any part of the PierAhead Platform or related trade secrets, or any software, documentation or data related to any part of the PierAhead Platform, except to the extent any of the foregoing prohibitions in this subclause (ii) is contrary to applicable Law; (iii) provide access to any part of the PierAhead Platform to any third party for purposes of assessing features, functionality, or performance of any part of the PierAhead Platform; (iv) use any part of the PierAhead Platform for timesharing or service bureau purposes or for any purpose other than its own internal use; (v) input, upload, transmit or otherwise provide to or through any part of the PierAhead Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious code; (vi) remove, delete, alter or obscure from any part of the PierAhead Platform any trademarks, warranties or disclaimers, or any copyright, patent or other intellectual property or proprietary rights notices; (vii) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner any part of the PierAhead Platform in whole or in part; (viii) bypass or breach any security device or protection used by any part of the PierAhead Platform or access or use any part of the PierAhead Platform other than through the use of his or her own then valid access credentials; (ix) copy, access or use any part of the PierAhead Platform for purposes of competitive analysis of any part of the PierAhead Platform, the development, provision or use of a competing software service or product or any other purpose that is to PierAhead’s detriment or commercial disadvantage; (x) use any part of the PierAhead Platform other than in accordance with this Agreement or other than in compliance with all Laws, including without limitation, applicable export and privacy Laws; (xi) create internet “links” to the PierAhead Platform or “frame” or “mirror” any content from the PierAhead Platform on any other server or wireless or internet-based device; or (xii) re­identify or de-anonymize, or attempt to re-identify or de-anonymize, any Data. Although PierAhead has no obligation to monitor Subscriber’s or its Administrator’s or Authorized User’s use of the Support Services, PierAhead may do so and may prohibit any use of the Support Services or the PierAhead Platform if it believes such use may be (or alleged to be) in violation of any of the foregoing restrictions in this Section. Subscriber will be responsible for maintaining the security of its and its Authorized Users’ accounts and passwords and for all uses of such accounts.

3. PAYMENT TERMS; FEES

   1. Payment Terms.

      1. Subscriber acknowledges that it shall be solely responsible for issuing payment to PierAhead for the Support Services requested under each Order Form, as such amounts owed are set forth in the applicable Order Form. PierAhead may issue invoices for the Support Services as is reasonable to ensure that Subscriber will meet any deadlines for payments set forth in the applicable Order Form. All invoices issued pursuant to this Agreement will be delivered to the following designee of Subscriber’s choice: [EMAIL] or other contact as communicated by Subscriber to PierAhead in accordance with the notice provision below. PierAhead invoices are due within thirty (30) days of being issued. PierAhead may charge Subscriber a 11/2% monthly finance charge to be calculated monthly with respect to all outstanding amounts not paid within thirty (30) days following the date of the invoice, but in no event shall any such finance charge exceed the maximum allowed by law. Unless otherwise expressly agreed upon by the Parties in an Order Form, all payment obligations are non-cancelable, and all amounts paid are non­refundable. If Subscriber believes an invoice is incorrect, Subscriber will pay any undisputed amounts in accordance with the terms and conditions of this Agreement and will advise PierAhead in writing of why it believes the invoice is incorrect within thirty (30) days of the date of the invoice. The Parties will act diligently, reasonably and in good faith to resolve such dispute as soon as possible.

      2. Subscriber will reimburse PierAhead for the reasonable cost of travel and other out-of-pocket expenses (“Expenses”) incurred by or on behalf of PierAhead in the course of providing Support Services under this Agreement when made mandatory by the Subscriber and outside of routine services. Subscriber will also reimburse PierAhead for any third-party license costs and other third-party costs identified in an Order Form (“Pass-Through Costs”). PierAhead will invoice Subscriber for Expenses on a monthly basis. Such invoices are subject to the terms and conditions set forth in this Section 3.

      3. Subscriber will pay all current and future state and federal taxes imposed as a result of this Agreement and the use of the Support Services, excluding, however, all taxes imposed on PierAhead as measured by PierAhead’s income.

      4. Following the Initial Term, PierAhead reserves the right to assess and modify its fees at the renewal of this Agreement with at least thirty (30) calendar days advance notice to Subscriber, which notice may be provided as specified in the Agreement.

4. CONFIDENTIALITY

   1. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party provides or otherwise makes available to the Receiving Party, including, but not limited to, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case that is marked, designated or otherwise identified as “confidential” or “proprietary” at the time of disclosure or is disclosed in such a manner or of such a nature that a reasonable person would understand such information to be confidential. Without limiting the foregoing, as between the parties, the PierAhead Platform, Third Party Materials, Deliverables, pricing for the Support Services, and the terms and conditions of this Agreement are the Confidential Information of PierAhead.

   2. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

   3. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (i) not access or use Confidential Information other than as necessary to perform its obligations under this Agreement or as expressly permitted in this Agreement; (ii) unless necessary to perform its obligations under this Agreement, not disclose Confidential Information other than to its Representatives who: (a) need to know such Confidential Information for purposes of the Receiving Party’s performance of its obligations or exercise of rights expressly granted to it under this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 4; and (c) are bound by written confidentiality and restricted use obligations which are substantially similar to the terms set forth in this Section 4; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care; and (iv) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Agreement.

   4. If the Receiving Party or any of its Representatives reasonably determines that it is compelled by Law to disclose any Confidential Information then, to the extent permitted by Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 4; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s request and sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 4 the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

   5. Either party may disclose the existence of this Agreement and/or disclose any of its terms in connection with any financing transaction or due diligence inquiry, provided that the party to whom such information is disclosed is bound by confidentiality obligations which are substantially similar to those herein and the party disclosing such information is responsible and liable for any breaches of confidentiality by the party to whom such information is disclosed.

5. WARRANTIES AND DISCLAIMERS

   1. PierAhead Warranties.

      1. PierAhead represents and warrants to Subscriber that PierAhead will perform Support Services in a professional manner. Any warranty claim under this Section must be made in writing (with reasonable details) within thirty (30) days after the provision of the applicable service. PierAhead’ sole obligation and Subscriber’s exclusive remedy in respect thereof is to reperform the nonconforming service or, at PierAhead’ sole discretion, to terminate this Agreement in respect of the nonconforming service and refund to Subscriber the fees paid therefor.

      2. PierAhead represents and warrants that the Deliverables shall generally conform in all material respects to the applicable specifications therefor (i.e., the specifications set forth in the applicable Order Form) for ninety (90) days after delivery thereof by PierAhead to Subscriber for production use. Any warranty claim under this Section must be made in writing (with reasonable details) within the ninety (90) day period. PierAhead’ sole obligation and Subscriber’s exclusive remedy in respect thereof is to use reasonable efforts to revise, repair or replace the nonconforming Deliverable or, at PierAhead’s sole discretion, to accept return of such Deliverable and refund to Subscriber the fees paid for such Deliverable. Notwithstanding anything to the contrary in this Section, PierAhead shall have no obligation under this Section for or in connection with any claim of breach of the warranty in this Section to the extent such claim arises from any of the following circumstances: (a) the applicable Deliverable were altered or modified by anyone other than PierAhead without prior written authorization of PierAhead, (b) Subscriber used the applicable Deliverable in combination with any software not furnished or authorized in writing by PierAhead, or (c) the Deliverable was used in a manner for which it was not designed or specified or against PierAhead’ instructions or the terms and conditions of this Agreement.

   2. Subscriber Warranties. Subscriber represents and warrants to PierAhead that Subscriber owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber Information so that, as received by PierAhead and used for purposes of performing PierAhead’s obligations or as otherwise authorized in this Agreement, PierAhead does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any Law.

   3. Disclaimer. EXCEPT AS SPECIFICALLY STATED HEREIN, THE SUPPORT SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. PIERAHEAD DOES NOT WARRANT THAT: OPERATION OF THE DATA SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE; OR ANY ERRORS WHICH MAY BE CONTAINED IN THE SUPPORT SERVICES OR DELIVERABLES CAN OR WILL BE FIXED. TO THE FULLEST EXTENT PERMITTED BY LAW, PIERAHEAD HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUPPORT SERVICES AND DELIVERABLES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN ADDITION, ALL THIRD-PARTY SERVICES AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES OR THIRD-PARTY MATERIALS.

6. INTELLECTUAL PROPERTY RIGHTS

   1. PierAhead and its licensors retain all right, title and interest in and to: (i) the PierAhead Platform and all improvements, other modifications and derivative works thereof, (ii) all machine learning and artificial intelligence models that PierAhead creates, makes or develops solely or jointly with others, (iii) all PierAhead trademarks, names, and logos, (iv) all documentation for the PierAhead Platform, (v) all suggestions, ideas, enhancements requests, feedback, recommendations, Subscriber testimonials and other similar information provided by Subscriber in relation to other parts of the PierAhead Platform, Third Party Materials, Deliverables, or Support Services and (vi) all data collected from Subscriber and from its Administrators and Authorized Users directly related to their use of the Support Services, such as type of device used to access the Support Services and portions of the Data Services most often visited, including without limitation, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights in (i), (ii), (iii), (iv), (v) and (vi).

   2. Subscriber retains all right, title and interest in and to: (i) Subscriber Information and (ii) all Subscriber trademarks, names, and logos, including without limitation, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights in (i) and (ii).

   3. Unless otherwise agreed by the Parties in writing in the applicable Order Form, PierAhead shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Deliverables. Upon payment in full therefor, PierAhead agrees to grant Subscriber a nonexclusive, nontransferable right and license (without right to sublicense) to use such Deliverable internally only in connection with the Data Services, subject to any other rights or restrictions set forth in the applicable Order Form.

   4. Except for the limited rights and licenses expressly granted under this Agreement, no other license is granted, no other use is permitted and each Party shall retain all right, title and interest in and to its respective property as described in Sections 6.1 and 6.2 above.

   5. Subscriber agrees that PierAhead is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) acquired in performing Support Services (including without limitation, that which it could have acquired in performing the same or similar services for another Subscriber).

7. LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW AND EXCEPT IN CONNECTION WITH ANY BREACHES OF SECTION 2.1.7, 2.2.1, 2.2.2 OR 4 AND EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW AND EXCEPT IN CONNECTION WITH ANY BREACHES OF SECTION 4, IN NO EVENT SHALL PIERAHEAD BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) LOSS OF DATA, LOSS OR INTERRUPTION OF USE OF ANY DELIVERABLE OR ANY SUPPORT SERVICE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES OR (II) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNTS PAID TO PIERAHEAD BY SUBSCRIBER HEREUNDER WITH RESPECT TO THE SUPPORT SERVICE OR DELIVERABLE THAT GAVE RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF PIERAHEAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

 

1. INSURANCE

Each party shall maintain insurance with respect to its activities under this Agreement as is normal and customary in its industry generally for parties similarly situated.

1. TERM AND TERMINATION

   1. The Initial Term of the Agreement will be as noted on the Order Form (“Initial Term”). The Agreement will renew automatically for subsequent terms (each a “Renewal Term”) identical to the Initial Term, unless either Subscriber or PierAhead gives at least ninety (90) days’ prior written notice of termination before the end of the Initial Term or Renewal Term.

   2. Subscriber or PierAhead may terminate this Agreement without penalty, for the following reasons, upon written notice to the other:

      1. Material breach of the Agreement, if the breaching Party fails to cure the breach within thirty (30) calendar days after receipt of breaching Party’s written notice of the breach.

      2. Immediately, if a Party (i) makes an assignment for the benefit of creditors; (ii) files a petition under the United States Bankruptcy Code or under any other similar federal or state law; (iii) is named in pleading or motion filed in any court proposing to adjudicate as a bankrupt party, and that pleading or motion is not discharged or denied within ninety (90) days after its filing; or (iv) has a receiver or trustee appointed for all or substantially all of its assets, and the receiver or trustee is not discharged within ninety (90) days after its appointment.

   3. Upon termination or expiration of this Agreement:

      1. Subscriber may continue to use any information, data, analyses, or reports that Subscriber had generated through the use of the SUPPORT Services prior to the termination or expiration date. All such use must be in accordance with the terms of this Agreement, its exhibits, and any addenda to the Agreement.

      2. PierAhead will be under no further obligation to make the PierAhead Platform available to Subscriber.

      3. Subscriber will pay PierAhead within thirty (30) calendar days for any outstanding fees and charges incurred through the date of termination or expiration.

      4. All other obligations that accrued prior to the effective date of termination or expiration, all remedies for breach of this Agreement, and Sections 1, 2.1.2, 2.1.7, 2.2, 3, 4, 5.2, 5.3, 6, 7, 9.3 and 10 shall survive any termination or expiration.

   4. Neither Party shall incur any liability or compensation obligation whatsoever for any damage (including, without limitation, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement by such Party that complies with the terms of this Agreement whether or not such party is aware of any such damage, loss or expenses.

2. MISCELLANEOUS

   1. Neither Party may assign this Agreement without the express written consent of the other Party, except that PierAhead may assign this Agreement without prior consent of Subscriber to any of its Affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the Parties. PierAhead may from time to time in its discretion engage third parties or Affiliates to perform services (each, a “Subcontractor”). PierAhead shall be responsible for any breaches of this Agreement by a Subcontractor, unless otherwise agreed upon by the Parties in the applicable Order Form and unless Subscriber has entered into an agreement directly with a Subcontractor in relation to such services.

   2. This Agreement (including any and all Order Forms) constitute the entire agreement between the Parties with regard to, and supersedes all prior negotiations, understandings or agreements (oral or written) between the Parties relating to, the subject matter of this Agreement (and all past dealing or industry custom). In the event of an inconsistency, ambiguity, contradiction or conflict between the terms of this Agreement and any Order Forms, the terms of Agreement shall take precedence unless such Order Forms expressly provides otherwise. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Execution of a facsimile or electronic copy shall have the same force and effect as execution of an original, and a facsimile or electronic signature shall be deemed an original and valid signature. No changes, modifications or waivers may be made to this Agreement unless in writing and signed by both Parties. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, 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.

   3. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Massachusetts, and both Parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

   4. Each Party agrees that, in the event of any breach or threatened breach of Section 2.2.2 or Section 4, the non-breaching Party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching Party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach or threatened breach, without the necessity of posting any bond or surety. Such remedies shall be in addition to any other remedy that the non-breaching Party may have at law or in equity.

   5. All notices under this Agreement will be in writing, in English and delivered to the Parties at their respective addresses first stated above or at such other address designated by written notice. Notices 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 being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

   6. The Parties shall be independent contractors in their performance under this Agreement, and nothing contained 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.

   7. Neither Party will be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such Party. Such acts will include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failures, earthquakes, or other disasters.

   8. PierAhead may list Subscriber’s name and logo on lists of subscribers, and may otherwise disclose to third parties the fact that Subscriber is a subscriber.

   9. Except as expressly set forth herein, nothing in this Agreement, its exhibits, and any addenda to the Agreement will confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

   10. This Agreement represents the wording selected by the Parties to define their agreement, and no rule of strict construction will apply against or in favor of either Party. All titles and section headings contained in this Agreement are inserted only as a matter of convenience and reference. They do not define, limit, extend, or describe the scope of this Agreement or the intent of any of its provisions. 

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*FREE TRIALS:  If the Subscriber has selected a FREE TRIAL, the TERM shall be seven (7) days and the FEE shall be $0.00. ALL FREE TRIALS ARE LIMITED BY THE TERMS AND CONDITIONS AS SET FORTH ON [WWW.PIERAHEAD.COM], INCLUDING WITHOUT LIMITATION, A LIMIT OF ONE FREE TRIAL PER COMPANY, AND BLACKOUT PERIODS WHEN FREE TRIALS ARE NOT AVAILABLE.

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