Master Services Agreement

This Master Services Agreement ("Agreement") is between Intramark Inc. ("Intramark") and the customer ("Customer") identified in the Order Form and is effective as of the date specified therein. This Agreement allows Customer and its Affiliates to purchase access to certain of Intramark's services as specified under one or more Orders. Certain capitalized terms are defined in Exhibit A and others are defined contextually in this Agreement.

Agreed as of the Effective Date by each party's authorized representative.

1. Overview

This Agreement covers Customer's use of Intramark's software application, and related products and services.

2. Services

2.1 Ordering Process

Services are purchased as stated in an Order in the manner established for each of the Services. Each Order will include the specific Services ordered by Customer, including, as applicable, the purchased Services, number of units, and the time period for which such Order applies.

2.2 Permitted Use of Platform Services

During a Subscription Term, subject to Customer's compliance with the terms of this Agreement, Customer may access and use the Platform Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order.

2.3 API Access

If Customer is provided access to one or more APIs pursuant to an applicable Order, then, subject to the terms and conditions of this Agreement, Intramark hereby grants Customer a limited, non-exclusive, non-sublicensable and non-transferable license to access and use such API(s) in the manner described in the API Materials, and to use the API Materials, in each case solely in connection with the Platform Services.

2.4 Remote App

During the Subscription Term, subject to Customer's compliance with the terms of this Agreement, the Documentation, and any limitations set forth in an Order, Intramark grants Customer a limited, non-transferable, revocable, non-exclusive, non-sublicensable right and license for each User to: (a) download any Remote App onto a Supported Device; and (b) use the Remote App for the sole purpose of accessing and using the applicable Platform Service. Users are responsible for installing all Updates Intramark makes available to the Remote App. Failure to install all Updates to the Remote App will void the Performance Warranty (as defined in Section 12.1 below).

2.5 Users

Only Users, using the mechanisms designated by Intramark (including, as applicable, any API keys) ("Log-in Credentials"), may access and use the Platform Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users' compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Intramark's breach of this Agreement). Customer will promptly notify Intramark if it becomes aware of any compromise of any Log-in Credentials. Intramark may Process Log-in Credentials in connection with Intramark's provision of the Platform Services or for Intramark's internal business purposes.

2.6 Restrictions

Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Platform Service to a third party (other than Users); (b) use a Platform Service on behalf of, or to provide any product or service to, third parties; (c) use a Platform Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Platform Service, except to the extent expressly permitted by Law (and then only with prior notice to Intramark); (e) modify or create derivative works of a Platform Service or copy any element of a Platform Service (other than authorized copies of the Remote App); (f) remove or obscure any proprietary notices in a Platform Service; (g) publish benchmarks or performance information about a Platform Service; (h) interfere with the operation of a Platform Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Platform Service; (i) transmit any viruses or other harmful materials to a Platform Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Platform Service; or (k) access or use a Platform Service in a manner that violates any Law. Additionally, Customer must not use a Platform Service with Prohibited Data or for High-Risk Activities. Customer acknowledges that the Platform Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Intramark is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Intramark has no liability for Prohibited Data or use of a Platform Service for High-Risk Activities.

3. Support

During a Subscription Term, Intramark will use commercially reasonable efforts to provide the applicable Services and Support.

4. Upgrades

Unless stated otherwise in an Order, Intramark will make Updates to Platform Services as Intramark makes them available to its customers of the applicable Platform Services generally. Customer's purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Intramark regarding future functionality or features of the Services. From time to time, Intramark, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Intramark to make Upgrades available to Customer as part of the Platform Services or otherwise unless specifically included in an Order.

5. Data

5.1 Use of Customer Data

Customer grants Intramark the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Services or Support, including to generate Reports; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.

5.2 Security

Intramark will maintain, for as long as it Processes Customer Data, the information security measures set forth in the Data Security Requirements.

5.3 DPA

To the extent Intramark will Process Customer Personal Data to provide Services to Customer pursuant to this Agreement, each party will comply with its obligations in the Data Processing Addendum, which is incorporated into this Agreement by reference.

5.4 Usage Data; Aggregated Data

Intramark may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Platform Services; (d) prevent or address technical issues with the Platform Services; (e) to improve Platform Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.

6. Customer Obligations

Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Intramark to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.

7. Suspension of Service

Intramark may immediately suspend Customer's access to any or all of the Services if: (a) Customer breaches Section 2.4 (Restrictions) or Section 6 (Customer Obligations); (b) Customer's account is 30 days or more overdue; (c) changes to Laws or new Laws require that Intramark suspend a Service or otherwise may impose additional liability on the part of Intramark; (d) Customer's actions risk harm to any of Intramark's other customers or the security, availability, or integrity of a Service; (e) Customer exceeds any usage limits included in the API; or (f) Customer attempts to use the Services to link information submitted to the Services by Customer's Users that is meant to be anonymous to specific Users. Where practicable, Intramark will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Intramark will restore Customer's access to the Service(s). Repeated actions by Customer subject to suspension in accordance with the above will be considered a material breach of the agreement.

8. Customer Systems

Customer will provide and maintain any Customer Systems.

9. Third-Party Platforms

Use of Third-Party Platforms is subject to Customer's agreement with the relevant provider and not this Agreement. Intramark does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Platform Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Platform Services, Customer authorizes Intramark to access and exchange Customer Data with such Third-Party Platform on Customer's behalf.

10. Professional Services

10.1 Provision of Professional Services

Customer will give Intramark timely access to Customer Materials reasonably needed for the Professional Services, and if Customer fails to do so, Intramark's obligation to provide Professional Services will be excused until access is provided. Intramark will use Customer Materials only for purposes of providing Professional Services. Except for Reports, Customer may use Professional Services deliverables only as part of its authorized use of the Platform Services and, subject to the same terms as for the Platform Services in Section 2 (Services) and Section 6 (Customer Obligations).

10.2 Reports

In connection with the provision of the Platform Services and People Services, Intramark will generate reports ("Reports") based on the Customer Data collected through the Platform Services. Intramark grants Customer a limited, non-transferable, perpetual, non-exclusive, sublicensable right and license to use, copy, display, and distribute the Reports for Customer's internal business purposes.

11. Commercial Terms

11.1 Subscription Term

Except as set forth in an Order, each Subscription Term will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current Subscription Term ends.

11.2 Fees and Taxes

Fees for the Services are described in each Order ("Fees"). Customer will reimburse Intramark for reasonable travel and lodging expenses it incurs in providing Professional Services ("Expenses"). All Fees and Expenses will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced as described on the schedule in the Order and Expenses are invoiced in arrears. Unless the Order provides otherwise, all Fees and Expenses are due within 30 days of the invoice date. Fees for renewal Subscription Terms are at Intramark's then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees and Expenses are non-refundable except as may be set out in Section 12.2 (Warranty Remedy), Section 16.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Intramark's income tax ("Taxes"). Fees and Expenses are exclusive of all Taxes.

11.3 Affiliate Orders

An Affiliate of Customer may use Services by entering into its own Order(s) as agreed with Intramark. Each such Order creates a separate agreement between the Affiliate and Intramark which incorporates this Agreement, with the Affiliate treated as "Customer". Neither Customer nor any Customer Affiliate has any rights or obligations under each other's agreement with Intramark, and breach or termination of any such agreement is not breach or termination under any other.

12. Warranties and Disclaimers

12.1 Limited Warranties

Intramark warrants to Customer that:

• each of the Platform Services will perform materially as described in its Documentation and Intramark will not materially decrease the overall functionality of the Platform Service ("Performance Warranty") during a Subscription Term ("Performance Warranty Period"); and
• Intramark will perform any Professional Services and People Services in a professional and workmanlike manner ("Professional Services Warranty") for a period of 6 months after the Professional Services are completed ("Professional Services Warranty Period").

The Performance Warranty and Professional Services Warranty are each referred to as a "Limited Warranty" and collectively as the "Limited Warranties". The Performance Warranty Period and Professional Services Warranty Period are each referred to as a "Warranty Period".

12.2 Warranty Remedy

If Intramark breaches a Limited Warranty during the applicable Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by Intramark within 30 days of discovering a breach of the Performance Warranty for the applicable Platform Service(s) or of receipt of Professional Services, then Intramark will use reasonable efforts to correct the non-conformity. If Intramark cannot do so within 30 days of receipt of Customer's warranty claim, either party may terminate the affected Order as it relates to the non-conforming Service. Intramark will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). This Section sets forth Customer's exclusive remedy and Intramark's entire liability for breach of the Limited Warranties. These warranties do not apply to: (a) issues caused by Customer's or Users' misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.

12.3 Disclaimers

Except as expressly provided in Section 12.1 (Limited Warranties), the Services, Support, and all other Intramark services are provided "AS IS". Intramark, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Intramark does not warrant that Customer's use of the Services will be uninterrupted or error-free, that Intramark will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Intramark is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Intramark's control. The Services are not intended to provide advice to Customer on hiring, firing, or other employment matters, and Intramark will not be liable for decisions made by Customer in reliance on the Services. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

13. Term and Termination

13.1 Term

The term of this Agreement (the "Term") starts on the Effective Date and continues until expiration or termination of all Subscription Terms.

13.2 Termination

Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

13.3 Effect of Termination

Upon expiration or termination of an Order, Customer's access to and Intramark's obligations to provide the Services (including any APIs) and Support described in the Order and any Software will cease. During a Subscription Term and for the 30-day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Services (except for data submitted by Users that is intended to be anonymous or otherwise to be kept confidential from Customer), including from Third-Party Platforms from the applicable Service using the export features described in the applicable Documentation. After that 30-day period, Intramark will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 17, may be retained in Recipient's standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement's confidentiality restrictions.

13.4 Survival

These Sections survive expiration or termination of this Agreement: 2.4 (Restrictions), 5.4 (Usage Data; Aggregated Data), 6 (Customer Obligations), 11.2 (Fees and Taxes), 12.3 (Disclaimers), 13.3 (Effect of Termination), 13.4 (Survival), 14 (Ownership), 15 (Limitations of Liability), 16 (Indemnification), 17 (Confidentiality), 18 (Required Disclosures), 21 (General Terms), and Exhibit A (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

14. Ownership

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data and Customer Materials provided to Intramark. Except for Customer's use rights in this Agreement, Intramark and its licensors retain all intellectual property rights and other rights in the Services (including all APIs), any Professional Services deliverables, Reports (excluding Customer Data therein), Software, Documentation, Usage Data, and Intramark technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Intramark. If Customer provides Intramark with feedback or suggestions regarding the Services or other Intramark offerings, Intramark may use the feedback or suggestions without restriction or obligation.

15. Limitations of Liability

15.1 Consequential Damages Waiver

Except for Excluded Claims (as defined below) neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.

15.2 Liability Cap

Except for Excluded Claims, each party's (and its suppliers' and licensor's) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Intramark pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement.

15.3 Excluded Claims

"Excluded Claims" means: (a) Customer's breach of Sections 2.4 (Restrictions) or 6 (Customer Obligations); (b) either party's breach of Section 17 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party's obligations in Section 16 (Indemnification).

15.4 Nature of Claims and Failure of Essential Purpose

The waivers and limitations in this Section 15.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

16. Indemnification

16.1 Indemnification by Intramark

Intramark will defend Customer from and against any third-party claim to the extent alleging that a Platform Service as operated by Intramark, when used by Customer as permitted under the applicable Order infringes or misappropriates a third-party's U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys' fees) or agreed in a settlement by Intramark resulting from the claim.

16.2 Indemnification by Customer

Customer will defend Intramark from and against any third-party claim to the extent resulting from Customer Data, Customer Materials, or Customer's breach or alleged breach of Section 6 (Customer Obligations), and will indemnify and hold harmless Intramark against any damages and costs awarded against Intramark (including reasonable attorneys' fees) or agreed in a settlement by Customer resulting from the claim.

16.3 Procedures

The indemnifying party's obligations in this Section 16 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party's expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party's prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Platform Services, when Intramark is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

16.4 Mitigation

In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Intramark determines necessary to avoid material liability, Intramark may at its option: (a) procure rights for Customer's continued use of the applicable Platform Service; (b) replace or modify the allegedly infringing portion of the applicable Platform Service to avoid infringement or misappropriation without reducing the Platform Service's overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.

16.5 Exceptions

Intramark's obligations in this Section 16 do not apply: (a) to infringement or misappropriation resulting from Customer's modification of Platform Services or use of Platform Services in combination with items not provided by Intramark (including Third-Party Platforms); (b) to infringement resulting from Software other than the most recent release; (c) to unauthorized use of Platform Services; (d) if Customer settles or makes any admissions about a claim without Intramark's prior consent; or (e) to Trials and Betas (as defined in Section 19) or other free or evaluation use.

16.6 Exclusive Remedy

This Section 16 sets out Customer's exclusive remedy and Intramark's entire liability regarding infringement or misappropriation of third-party intellectual property rights.

17. Confidentiality

17.1 Definition

"Confidential Information" means information disclosed to the receiving party ("Recipient") under this Agreement that is designated by the disclosing party ("Discloser") as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Intramark's Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Platform Services. Customer's Confidential Information includes Customer Data.

17.2 Obligations

As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 5.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser's request, Recipient will delete all Confidential Information, except, in the case where Intramark is the Recipient, Intramark may retain the Customer's Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Intramark, the subcontractors referenced in Section 21.8), provided it remains responsible for their compliance with this Section 17 and they are bound to confidentiality obligations no less protective than this Section 17.

17.3 Exclusions

These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.

17.4 Remedies

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 17.

17.5 Anonymous Data

Some Customer Data submitted by Users will be submitted under the expectation that the data is submitted in confidence, and that the data will be aggregated and anonymized before being shared with Customer. Notwithstanding anything to the contrary in this Agreement, Intramark will be under no obligation to share raw data submitted by a User in confidence or to allow or assist Customer in reidentifying the source of such data. Customer is expressly prohibited from using any of the Services for the purposes of reidentifying data that has been anonymized to protect the User that submitted it or otherwise using the Services to link Customer Data to specific Users.

18. Required Disclosures

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

19. Trials and Betas

If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering ("Trials and Betas"), use is permitted only for Customer's internal evaluation during the period designated by Intramark (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Intramark may never release, and their features and performance information are Intramark's Confidential Information. Notwithstanding anything else in this Agreement, Intramark provides no warranty, indemnity, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.

20. Publicity

Neither party may publicly announce that the parties have entered into this Agreement, except with the other party's prior consent or as required by Laws. However, Intramark may include Customer and its trademarks in Intramark's customer lists and promotional materials but will cease further use at Customer's written request.

21. General Terms

21.1 Assignment

Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns.

21.2 Governing Law, Jurisdiction and Venue

This Agreement is governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York, New York and both parties submit to the personal jurisdiction of those courts.

21.3 Notices

Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Intramark may also send operational notices to Customer by email or through the Platform Services.

21.4 Entire Agreement

This Agreement (which includes all Orders and Schedules) is the parties' entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and "including" and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

21.5 Amendments

Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party's authorized representatives or, as appropriate, agreed through electronic means provided by Intramark. Nonetheless, with notice to Customer, Intramark may modify its policies to reflect new features or changing practices, but the modifications will not materially decrease Intramark's overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Intramark; any of these Customer documents are for administrative purposes only and have no legal effect.

21.6 Waivers and Severability

Waivers must be signed by the waiving party's authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

21.7 Force Majeure

Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster ("Force Majeure Events").

21.8 Subcontractors

Intramark may use subcontractors and permit them to exercise Intramark's rights, but Intramark remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

21.9 Independent Contractors

The parties are independent contractors, not agents, partners, or joint venturers.

21.10 Export

Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

21.11 Open Source

The Software may incorporate third-party open-source software ("OSS"), as listed in the Documentation or otherwise disclosed by Intramark in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

21.12 Government End-Users

Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.

21.13 Conflicts in Interpretation

If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any Schedules, exhibits, attachments, addenda, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in the body of this Agreement; (b) the terms of the Schedules, exhibits, attachments, and addenda, to this Agreement; and (c) the Documentation.

Exhibit A: Definitions

• "Affiliate" means an entity directly or indirectly owned or controlled by a party, where "ownership" means the beneficial ownership of 50% or more of an entity's voting equity securities or other equivalent voting interests and "control" means the power to direct the management or affairs of an entity.
• "Aggregated Data" means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
• "API" means Intramark's proprietary application programming interface.
• "API Materials" means the documentation and policies applicable to use of the API, as updated.
• "Confidential Information" has the meaning given to it in Section 17.1.
• "Customer Data" means any data or information that: (a) Customer (including its Users) submits to the Platform Services, including from Third-Party Platforms; and (b) is Processed by Intramark to provide the Platform Services to Customer.
• "Customer Materials" means materials, systems, and other resources that Customer provides to Intramark in connection with Professional Services.
• "Customer Personal Data" will have the meaning given to it in the Data Processing Addendum.
• "Customer Systems" means Customer's hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Platform Services including Supported Devices.
• "Data Processing Addendum" means the Data Processing Addendum, available at /dpa.
• "Data Security Requirements" means Intramark's then-current Data Security Requirements, which are available at https://intramark.io/app-installation/ or such other URL or location as may be specified by Intramark from time to time.
• "Documentation" means the then-current version of Intramark's usage guidelines and standard technical documentation for the Platform Services that Intramark makes generally available to its customers that it provides the applicable Platform Services to, including the API Materials.
• "Fees" has the meaning given to it in Section 11.2.
• "High Risk Activities" means activities where use or failure of a Platform Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
• "Laws" means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Customer Personal Data and Customer Personal Information.
• "Log-in Credentials" has the meaning given to it in Section 2.5.
• "Order" means an Order Form that describes the Services being purchased by Customer that is executed by the parties and references this Agreement.
• "Platform Service" or "Platform Services" means the then-current version of Intramark's proprietary cloud service, the API, and other services that are identified in the relevant Order (but excluding Support and Professional Services). Each of the Services includes the Software and Documentation for the Service.
• "Process" means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
• "Professional Services" means Technical Services and People Services.
• "Prohibited Data" means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by HIPAA; (c) credit, debit, or other payment card data subject to PCI DSS; (d) other information subject to regulation or protection under specific Laws such as the Children's Online Privacy Protection Act or Gramm-Leach-Bliley Act; (e) social security numbers, driver's license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
• "Remote App" means Intramark's proprietary software installed on supported remote devices as described in the Documentation through which Users can access and use a Platform Service.
• "Reports" has the meaning given to it in Section 10.2.
• "Service" or "Services" means Platform Services and Professional Services.
• "Software" means any software, scripts, or other code required by Intramark to operate a Platform Service including a Remote App.
• "Subscription Term" means the period during which Customer's subscription to access and use the Services is in effect, as identified in the applicable Order.
• "Support" means support for the Services as described in Intramark's support policy and/or Documentation.
• "Supported Device" means a hardware device on which a Remote App can be installed on and used as defined in the Documentation.
• "Taxes" has the meaning given in Section 11.2.
• "Technical Services" means any implementation, training, or configuration services provided by Intramark related to the Platform Services, as identified in an Order. Technical Services exclude Support.
• "Term" has the meaning given to it in Section 13.1.
• "Third-Party Platform" means any third-party platform, add-on, service, or product not provided by Intramark that Customer elects to integrate or enable for use with any Platform Service.
• "Trials and Betas" has the meaning given to it in Section 19.
• "Updates" means any updates, modifications, or bug fixes to the Platform Services or Documentation that Intramark provides free of additional charge to its customers using a Platform Service.
• "Upgrades" means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Platform Services that Intramark makes available to its customers for an additional fee.
• "Usage Data" means information generated from the use of the Platform Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer's use of the Platform Services, but excluding any identifiable Customer Data.
• "User" means any employee or contractor of Customer or its Affiliates that Customer allows to use the Services on Customer's behalf.