MASTER SUBSCRIPTION AND SERVICES AGREEMENT

1. Purpose.

Binti has developed a Software-as-a-Service platform, as described at www.binti.com and https://binti.com/legal_specs_sla/ which includes the individually licensable platform modules and which may be updated from time to time. This Agreement creates a legally binding and enforceable contract whereby Binti (i) will grant Client access to the Binti platform including one or more of the platform module(s), as indicated in the applicable Order Form (collectively the platform will be referred to as the “Platform” and each module will be referred to as a “Licensed Module“); and (ii) may provide certain Configuration and Enablement Services (“Configuration and Enablement Services“), as described in Exhibit A, Configuration and Enablement Services, to be determined by both Parties, if any.

(a) Business Associate Agreement (BAA). BAA at https://binti.com/Binti_BAA/ is incorporated herein by this reference.

2. Proprietary Rights; Usage.

(b) Platform. Subject to the terms and conditions of this Agreement, Binti hereby grants to Client during the Term (defined below) a revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the Licensed Modules as specified in the Order Form, subject to Client’s employees and contractors accepting Binti’s online Terms of Service (https://binti.com/terms/) and receiving valid access credentials by Binti (“Authorized Users”). The Parties may add additional Platform access, including adding access to any additional modules, though a new or updated Order Form(s).

(c) Restrictions. Client, and its Authorized Users, will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Platform; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Platform (except to the extent such prohibition is contrary to applicable law); (iii) lend, lease, offer for sale, sell or otherwise use the Platform for the benefit of any third party; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) access or use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual
property right or other right of any third party, including the right to privacy; (vii) bypass or breach any security protection used by the Platform or access or use the Platform other than by an Authorized Users through the use of his, her, they own then valid access credentials; (viii) or use the Platform in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations.

(d) Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Binti by any means (i.e., email, form, telephone, text, verbally, or otherwise), suggesting or recommending changes to the Binti Platform, including without limitation, for new features or functionality relating thereto, or any comments, suggestions, or questions or the like (“Feedback“), Binti is free to use such Feedback irrespective of any other obligation or limitation between the Parties. Client hereby assigns
to Binti on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and to the Feedback. Binti is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. For the avoidance of doubt, Binti is not required to use any Feedback and Client is not required to provide Feedback.

(e) Support. Binti will provide support and use commercially reasonable efforts to make the Platform available, except for planned downtime and any unavailability caused by Force Majeure Events (defined below) as further set forth in the Services Level Agreement at https://binti.com/legal_specs_sla/

(f) Binti Ownership; Usage Data. Except for the rights granted to Client in Section 2(a) above and Client’s rights to Client Data (defined below), as between the Parties, Binti retains all right, title and interest, including all intellectual property rights, in and to the Platform, including all updates thereto, and all aggregated and de-identified information that Binti’s systems or applications automatically collect regarding the Platform and/or its use and/or performance (including, without limitation, de-identified Client Data that does not, and cannot reasonably be used to, identify Client or any individual) (“Usage Data”) (which, notwithstanding anything to the contrary, Binti may fully exploit). Client agrees that Binti may (i) make Usage Data publicly available in compliance with applicable law, and (ii) use Usage Data to the extent and in the manner permitted under applicable law; provided that such Usage Data does not identify Client Data or Client’s Confidential Information and are unable to be reidentified. All rights that Binti does not expressly grant to Client in this Section 2 are reserved and Binti does not grant any implied licenses under this Section 2.

(g) Client Ownership; Client Data. As between the Parties, Client owns all data, information and other materials submitted to the Platform or Binti by Client or its Authorized Users (which, for clarity, excludes Usage Data) (collectively, “Client Data”). Client represents and warrants that: (i) it either owns the Client Data or is otherwise permitted to grant the license set forth in this Section; (ii) the posting and use of Client Data on or through the Platform does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of Client Data on the Platform does not result in a breach of contract between Client and any third party. Client hereby grants to Binti a non-exclusive and non-transferable license to use and host the Client Data, solely to provide the Services. Binti is not responsible for the content of any client Data or the way Client or its Authorized Users choose to use the Platform to store or process any Client Data. Upon termination or expiration of this Agreement for any reason, Binti will permit Client to download all Client Data from the Platform in .csv format.

1. Restrictions. Within the Binti Platform, Client shall not use, share, store, transfer, or transmit (1) any Client Data that infringes, violates, or misappropriates any intellectual property or proprietary right(s) of a third-party, or (2) any Client Data that violates any applicable laws, rules or regulations including any applicable data privacy laws. Where Client accesses or uses the Platform for the exchange or transmission of “Highly Sensitive Personal Information” defined as an (a) individual’s government-issued identification number (including Social Security number, driver’s license number, or state-issued identification number); (b) confidential financial information, financial account number, credit or debit card number, or credit report information; (c) federal or state tax return information or records; (d) biometric or genetic information, Client represents and warrants that it has (and will have for the Term) the requisite rights to exchange or transmit such Highly Sensitive Personal Information.

(h) Data Use and Protection. Binti will maintain commercially reasonable administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Client Data. Binti will process any personal information submitted by Client or Client’s Authorized Users in accordance with Binti’s Privacy Policy, available at www.binti.com/privacy.

3. Configuration and Enablement Services.

(a) General. Subject to Client’s compliance with the terms and conditions of this Agreement, Binti will perform the Configuration and Enablement Services according to the fee schedule and as set forth in Exhibit A, the Configuration and Enablement Services “Statement of Work” (“SOW”), attached hereto, if any.  The Parties may add additional Configuration and Enablement Services through a new or updated SOW.  Client will reasonably cooperate with Binti to facilitate provision of Configuration and Enablement Services.  This cooperation will include, without limitation, (i) performing any tasks reasonably necessary for Binti to provide the Configuration and Enablement Services and to avoid unnecessary delays; (ii) fulfilling any Client obligations in a timely manner; and (iii) responding to Binti’s reasonable requests related to Configuration and Enablement Services in a timely manner.  Binti will not be liable for any delays in performing the Configuration and Enablement Services that arise, in whole or in part, from Client’s acts or omissions, including, without limitation, its failure to comply with this Section 3(a) or in result of a Force Majeure Event.

(b) Intellectual Property Rights. Binti solely owns all right, title and interest in and to any software, notes, records, drawings, designs or other copyrightable materials, inventions (whether or not patentable), improvements, developments, discoveries and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by Binti, solely or in collaboration with others, arising out of, or in connection with, Binti performing the Configuration and Enablement Services, including any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (“Inventions”). Binti hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right during the Term to use the portion of the Inventions that is incorporated into any deliverables that Binti provides to Client under Exhibit A (if any) solely to use any such deliverables. Binti reserves all rights not expressly granted in the prior sentence and does not grant any implied licensed under this Section 3.

4. Fees.

(a) Fees. Client will pay Binti the fees set forth in the Order Form(s), those set forth in Exhibit A, if any, and those set forth in any additional SOW(s) (collectively, “Fees“). Where an affiliate or partner agency (“Related Agency”) is seeking access to the Platform, it may be granted pursuant to an additional Order Form issued and fully executed under this Agreement (“Related Agency Order Form”). In the event of the execution of a Related Agency Order Form, Client shall be responsible for payment of any fees set forth in the Related Agency Order Form and Client shall also remain responsible any Related Agency’s compliance with the terms of this Agreement, the Terms of Service, and/or any other applicable terms and conditions.

(b) Fee Increases. Following the Initial Term, Binti in its sole discretion may increase the fees annually at each twelve (12) month anniversary of the Effective Date during the Term in an amount not to exceed 5% more than the fees payable during the immediately preceding twelve (12) months period to adjust for inflation; provided, however, that Binti may increase the fees by an amount deemed necessary by Binti in its sole discretion during any Renewal Term or in connection with enhancements and/or improvements made to the Platform or Configuration and Enablement Services.

(c) Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes assessable by any applicable taxing authorities (collectively, “Taxes“). Client is responsible for paying all Taxes associated with its receipt of the Services (except for any Taxes based on Binti’s net income).

5. Confidential Information

(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party“) to the other Party (“Receiving Party“), that is marked in writing as “confidential” or by a similar designation. For clarity, Confidential Information of Binti also includes the Binti technology underlying the Platform and any related non-public specifications, documentation or technical information that Binti makes available to Client. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party without restriction prior to its disclosure by the Disclosing Party and without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without restriction and without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.

(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party may only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement. Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors or agents who need such access to perform obligations under this Agreement and who agree to abide by the terms set forth in this Section 5.

(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so as a matter of law by a court or regulatory body having jurisdiction, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure and secure a protective order. Notwithstanding the foregoing, with respect to any Binti Confidential Information that constitutes a trade secret (as determined under applicable law), any obligations of non-disclosure under this Section 5 shall survive termination, expiration, and shall be exempt from compelled disclosure for so long as such Binti Confidential Information remains subject to trade secret protection under applicable law.

6. Term and Termination.

(a) Term. This Agreement will commence on the Effective Date and continue until there are no outstanding invoices or active Order Form(s) in place between the Parties, unless earlier terminated in accordance with the terms of this Agreement.

(b) Termination. The Client may terminate this Agreement if funds are not appropriated to the Client or are not otherwise available for the purpose of making payments under this Agreement. The Client shall provide Binti with at least thirty (30) calendar days’ written notice of termination of the Agreement due to lack of available funding. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice if the other Party is in material breach of this Agreement and the breaching Party fails to remedy such material breach within the thirty (30)-day notice period. Within sixty (60) days of termination or expiration of this Agreement, and upon Client’s written request, Binti will supply the Client with an export of the Client’s Data, to be provided in pdf and/or csv format. Binti may additionally suspend or terminate this Agreement (1) at anytime without notice to Client in the event of any conduct by Client or by Client’s Authorized Users which, in Binti’s sole discretion, Binti considers to be unacceptable or a breach of the Terms of Service or (2) for any or no reason, upon thirty (30) days written notice to Client.

(c) Effect of Termination. Upon expiration or termination of this Agreement for any reason, all outstanding Fees owed pursuant to Section 4 will become immediately due and payable. If this Agreement is terminated by Binti for the material breach by Client, Client will remain responsible for all Fees as set forth herein for the remainder of the then-current Term. If Client terminates this Agreement for material breach by Binti, Binti will provide Client with a pro-rated refund of any prepaid fees with respect to the terminated period.

(d) Survival. The provisions of Sections 2(b), 2(c), 2(e), 2(f), 3(b), 4, 5, 6(b), 6(c), 6(d), 7, 8, 9, 10 and all defined terms used in those Sections will survive any expiration or termination of this Agreement.

7. Representations and Warranties.

(a) Mutual. Each Party represents and warrants that: (i) it has the right, power and authority to enter into this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (ii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the Party; and (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

(b) By Client. Client further represents and warrants that: (i) it owns or otherwise has sufficient rights to the Client Data to grant the license set forth in Section 2(f); (ii) no Client Data submitted to the Platform does or will violate the privacy, intellectual property or other rights of any person or entity or any applicable laws, rules or regulations; and, (iii) that it is responsible for the use or misuse of the Platform by Authorized Users, and a breach by any Authorized User of any term of this Agreement will be deemed a breach by Client of this Agreement and Client assumes all risk arising from any such use that is not compliant with applicable laws.

(c) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH UNDER THIS SECTION 7, THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT BY BINTI ARE PROVIDED ON AN “AS-IS” BASIS, AND CLIENT ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CLIENT’S INTENDED RESULTS, FOR THE ACCURACY AND/OR QUALITY OF ITS CLIENT DATA, AND FOR ITS USE OF, AND RESULTS OBTAINED FROM, THE SERVICES. BINTI DOES NOT WARRANT THAT THE SERVICES OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, BINTI MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, AND BINTI HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING.

8. Limitations on Liability.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, (I) EXCEPT WITH RESPECT TO SECTION 9, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAYABLE TO BINTI DURING THE TERM; AND (II) EXCEPT TO THE EXTENT SUCH DAMAGES ARE PAID OR PAYABLE TO UNAFFILIATED THIRD PARTIES PURSUANT TO EITHER PARTY’S OBLIGATIONS PURSUANT TO SECTION 9, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THIS SECTION 8 DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, BINTI’S LIABILITY FOR CLAIMS ARISING UNDER SECTION 9 SHALL BE LIMITED TO ONE MILLION U.S. DOLLARS ($1,000,000).

9. Indemnification.

(a) By Client. If a third party asserts a claim (each, a “Third Party Claim“) against Binti or any of its affiliates, officers, employees or contractors (each, a “Binti Released Party“) alleging or arising from (a) that any Data infringes, violates, or misappropriates any intellectual property or proprietary right(s), (b) that any Data, or its provision to Binti, violates any applicable law or regulation, or (c) any negligent act or intentional misconduct by Client or any of its Authorized Users in connection with the Service, then Client will defend the Binti Released Party from the Third Party Claim and hold such Binti Released Party harmless from and against all damages, settlements, costs, and/or expenses, in each case, that are paid or payable to third party(ies) with respect to the Third Party Claim (including, without limitation, reasonable attorneys’ fees).

(b) By Binti. If a Third Party Claim is asserted against Client or any of its affiliates, officers, employees or contractors (each, a “Client Indemnified Party“) alleging that the Platform (not including any Client Data) infringes, violates, or misappropriates such third party’s intellectual property or proprietary right(s) (“Infringement Claim“), then Binti will defend the Client Indemnified Party from the Infringement Claim and hold such Party harmless from and against all damages, settlements, costs, and/or expenses, in each case, that are paid or payable with respect to the Infringement Claim (including, without limitation, reasonable attorneys’ fees). In the event of an Infringement Claim, Binti, at its sole option and expense, may: (i) procure for Client the right to continue using the Platform or infringing part thereof; (ii) modify the Platform or infringing part thereof; (iii) replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (iv) if the foregoing are not commercially practicable, terminate this Agreement and repay to Client a pro-rata portion of the prepaid Fees. Notwithstanding the forgoing sentences, Binti will have no liability for an Infringement Claim if the actual or alleged infringement results from (a) any breach of this Agreement by Client or any Authorized Users; (b) any modification, alteration or addition made to the Platform by Client or any Authorized Users, including any combination of the Platform with software not provided by Binti; (c) any failure by Client or any Authorized Users to use any updates made available by Binti; or (d) any settlements entered into by Client or costs incurred by Client for the Infringement Claim that are not pre-approved by Binti in writing. This Section 9(b) constitutes Client’s sole and exclusive remedies and Binti’s entire obligation to Client with respect to any claim that the Platform or Configuration and Enablement Services infringe the rights of any third party.

(c) Procedures. Each Party’s obligations pursuant to Sections 9(a) and 9(b) above (respectively) are expressly conditioned on: (a) the Party seeking indemnification under this Section 9 (“Indemnified Party“) providing the other Party (“Indemnifying Party“) with prompt written notice of the applicable Third Party Claim for which the Indemnified Party seeks indemnification; (b) the Indemnified Party reasonably cooperating in the defense and/or settlement of such Third Party Claim, at the Indemnifying Party’s sole expense; and (c) the Indemnifying Party having sole control over the defense and/or settlement of such Third Party Claim. The Indemnifying Party may not agree to any settlement of any Third Party Claim against the Indemnified Party that admits wrongdoing by the Indemnified Party, or otherwise imposes any material obligation on the Indemnifying Party (not entirely covered by an indemnification obligation hereunder), without the Indemnified Party’s prior express written consent, which consent will not be unreasonably withheld, conditioned or delayed. The Indemnified Party may participate in the defense of a Third Party Claim through counsel of its own choice at its own expense.

10. Miscellaneous.

(a) No Partnership, Agency or Joint Venture. Each Party hereto is an independent contractor with respect to the other Party. This Agreement does not create or imply any partnership, agency or joint venture between the Parties.

(b) Injunctive Relief. Nothing in the Agreement shall prevent a Party from seeking injunctive relief in addition to all available remedies.

(c) Assignment. Neither Party may assign this Agreement or any rights under it, in whole or in part, without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an affiliate or a successor in connection with a merger, acquisition, reorganization, consolidation, or sale of all or substantially all of its assets or the business to which this Agreement relates. Any attempt to assign this Agreement other than as permitted above will be void.

(d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in full force and effect.

(e) Governing Law; Venue. This Agreement will be governed by and construed under the laws of the state in which the Client is located, without reference to that state’s conflict of laws principles. This Agreement, including all Exhibits attached hereto, embodies the entire agreement between the Parties with respect to the subject matter set forth herein and supersedes any previous or contemporaneous communications, whether oral or written, express or implied.

(f) Conflicting Terms. If there is any conflict or inconsistency between the terms of any Exhibit and the terms in the body of this Agreement, then the terms in the body of the Agreement will control solely to the extent of the conflict.

(g) Amendment, Modification & Waiver. Any amendment must be in writing and expressly state that it is amending this Agreement. This Agreement may be modified or amended only by a writing signed by both Parties. All waivers made under this Agreement must be made in writing by the Party making the waiver.

(h) Notices Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth above and with the appropriate postage affixed; or (ii) sent via email to the following:

(i) Publicity Rights. Binti shall have the right to reference Client’s name and logo in its marketing and promotional materials, including but not limited to its website, presentations, and proposals.

In the case of Binti:
Binti, Inc.
Attn: Legal Department / Notices

144 2nd St.,Floor 2
San Francisco, CA 94105

With a copy to :
contract-notices@binti.com;

In the case of Client:
_____________________
_____________________
_____________________

Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day a facsimile or electronic mail is sent to the recipient.

(j) Force Majeure. Binti will not be liable or responsible to Client, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Binti including, without limitation, acts of God, natural disaster, denial or services attacks and/or service provider system outages (collectively, “Force Majeure Events”).

(k) Counterparts. This Agreement may be signed in counterparts, each of which will be deemed an original, and all of which together will constitute a single agreement.

(l) Entire Agreement. This Agreement is the Parties’ entire agreement relating to its subject, and supersedes any prior or contemporaneous agreements on that subject. The Parties may execute this Agreement in counterparts, including facsimile, PDF, or other electronic copies, which taken together will constitute one instrument.