Last Updated: December 28, 2013

These Calibervantage Terms of Service (the “Agreement”) are entered into by and between Caliber Vantage, Inc. (“CaliberVantage”, “we”, “us”, or “our”) and the entity or person placing an order for the Subscription Service (as defined below) (“you” or “Customer”).  This Agreement permits you to place orders for the Subscription Service and sets forth the terms and conditions under which the Subscription Service will be delivered and the associated terms and conditions related to your use of the Subscription Service.

The Subscription Service (including any updates or upgrades subsequently provided by CaliberVantage) and all associated purchases (for additional Employees, training, support and otherwise) procured from CaliberVantage on the Order Form shall be subject solely to the terms and conditions of this Agreement. Any implementation services listed on a CaliberVantage Order Form related to the Subscription Service shall be subject solely to the terms and conditions of the Statement of Work between you and CaliberVantage describing the implementation of the Subscription Service (the “SOW”) and the CaliberVantage Professional Services Agreement referenced by such SOW.

If you are agreeing to these terms on behalf of an entity, you represent and warrant that you are a duly authorized to enter into this Agreement. The rights granted under this Agreement are expressly conditioned on acceptance by such authorized personnel. You can accept the Terms by actually using the Subscription Services. In this case, you understand and agree that CaliberVantage will treat your use of the Subscription Services as acceptance of the Terms from that point onwards.

1. Definition

Affiliate” means any entity under your control where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.

Agreement” means these Customer Terms of Service and all materials referred or linked to in here.

Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.

Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services. Unless otherwise agreed, all Consulting Services are performed remotely.

Customer Data” means all information that you submit or collect via the Subscription Service.

Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.

Effective Date” is the earlier of (a) Customer’s initial access to the Subscription Service through any online provisioning, registration or order process (including the start date of any Trial Subscription) or (b) the effective date of the first Order Form referencing this Agreement.

Order Form” or “Order” means the CaliberVantage-approved form by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process. The purchase form may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.

Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.

Subscription Fees“ means the applicable standard recurring subscription fee for the Subscription Services as mutually agreed upon in writing by the parties and set forth in an Order Form. Subscription Fees are subject to change upon thirty (30) days prior notice from CaliberVantage.

Subscription Service” means our web-based inbound marketing and sales applications, tools and platform that you have subscribed to by an Order Form, and developed, operated, and maintained by us, accessible via http://www.CaliberVantage.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.

Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.

Users means individuals who are authorized by Customer to access and use the Subscription Service, for whom subscriptions to such service has been procured, and who have been supplied user identifications and passwords by Customer (or by CaliberVantage at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.

2. The Subscription Service

a. Access. Subject to your compliance with this Agreement, including your payment of the Subscription Fees, CaliberVantage shall make the Subscription Service available to your Users for use a) online via the internet, b) solely for your internal business purposes, c) during the Term, and d) in accordance with the applicable End User Limitations.

b. Limits. Limits may apply to the number of Users as specified in your Order Form and this Agreement. User accounts are for individual, named Users and cannot be shared or used concurrently or by more than one User. Employee records are for individual, named employees, consultants, contractors and agents at your organization and must accurately reflect the status of such individual (e.g. whether the individual is active or terminated).

c. Modifications. CaliberVantage may make modifications to the Subscription Service or particular components of the Subscription Service from time to time, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduces the functionality of the Subscription Service provided to you during the Subscription Term. We will use commercially reasonable efforts to notify you of any material modifications. We might provide some or all elements of the Subscription Service through third party service providers. CaliberVantage shall not be liable to you nor to any third party for any modification of the Subscription Service as described in this Section.

d. Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form.

e. Free Trial. If you receive free access or a trial or evaluation subscription to the Subscription Service (a “Trial Subscription”), then you may use the Subscription Service in accordance with this Agreement for the period designated in the Order Form or otherwise in writing by CaliberVantage (and if not designated, then for thirty (30) days) (“Trial Period”).  Trial Subscriptions are permitted solely for your trial use to determine whether to procure a subscription to the Subscription Service.  Your Trial Subscription and your access to the Subscription Service will automatically terminate upon expiration of the Trial Period. During the Trial Period, you will have the option to procure a full subscription to the Subscription Service.  If you procure a paid subscription, all of the terms and conditions in this Agreement will apply to such subscription and the associated use of the Subscription Service.

During the free trial period, (i) the Subscription Service is provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Subscription Service for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Subscription Service. Unless you subscribe to the Subscription Service before the end of the free trial, all of your data on the Subscription Service will be permanently deleted at the end of the trial, and we will not recover it.

3. Customer Support

Support for the Subscription Service is provided to paying Customers and is available via email to support@calibervantage.com. Support is subject to any applicable CaliberVantage support policies and does not cover (and CaliberVantage is not responsible for) issues arising from: (i) your equipment, software, network connections or other infrastructure; (ii) use of the Subscription Service by you in a manner not consistent with its documentation, (iii) modifications to the Subscription Service by any party other than CaliberVantage, (iv) third party acts, services or systems or (v) general Internet problems, force majeure events or other factors outside of CaliberVantage’s reasonable control. Support is not available for Trial Subscriptions. You shall seek support from CaliberVantage and not from any third party.

4. Scheduled Downtime

CaliberVantage will use commercially reasonable efforts to pre-announce any scheduled downtime associated with upgrades and maintenance to the Subscription Services via email communication or posted to the account administrator.  The operation of and access to the Subscription Services may be interfered with by numerous factors outside of CaliberVantage’s control and CaliberVantage will not be liable for any such costs, losses, expenses, damages, or liabilities arising out of or related to any delay or failure in performance under this Agreement resulting directly or indirectly from causes beyond CaliberVantage reasonable control.

5. Fees and Payments

a. Subscription Fees. If you choose to procure a subscription to the Subscription Service, you will pay CaliberVantage the applicable Subscription Fee in advance each month following any applicable Trial Period.  If you add additional Users or Employees or upgrade your Subscription Service package, your Subscription Fees will be adjusted to reflect such changes and you will be immediately charged the updated Subscription Fees at the date of such upgrade and again upon your next renewal. Subscription Fees for renewals will be charged at CaliberVantage’s then-current rates. All fees are non-refundable. No refunds will be given for partial-months or for reduction in the number of Employees or the Subscription Service package level. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.

d. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and all subsequent Billing Periods, including upgrades. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

e. Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.

g. Sales Tax. CaliberVantage’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes“). You are responsible for paying all Taxes, excluding only taxes based on CaliberVantage’s net income.

6. Subscription Term and Renewal

This Agreement are effective on the Effective Date and continue in effect until expiration of all your subscriptions to the Subscription Service (collectively, the “Term”), unless terminated earlier pursuant to this Agreement. Unless otherwise specified on your Order Form and except for non-converting Trial Subscriptions, you will have a month-to-month subscription to the Subscription Service which will automatically renew each month for an additional monthly term unless you properly terminate your account through the Subscription Service by using the “Cancel My Subscription” tool from within the Subscription Service (or as otherwise directed by CaliberVantage in writing) prior to the expiration of the then current term.

7. CaliberVantage’s Proprietary Rights

You agree that the Subscription Service and all intellectual property right relating to or embodied therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to the CaliberVantage Service, and all modification, changes, enhancements, or additions thereto) and all intellectual property rights relating to the provision of Support by CaliberVantage (collectively, “CaliberVantage IP”), are owned or licensed by CaliberVantage. Nothing in this Agreement gives you any right, title or interest in, to or under the Subscription Service, Support or any intellectual property rights therein. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing in or on the Subscription Service as provided.

8. Contributions to CaliberVantage

By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to CaliberVantage through its suggestion or feedback webpages, you acknowledge and agree that your Contributions do not contain confidential or proprietary information; CaliberVantage is not under any obligation of confidentiality, express or implied, with respect to the Contributions; CaliberVantage shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; CaliberVantage may have something similar to the Contributions already under consideration or in development; your Contributions automatically become the property of CaliberVantage without any obligation of CaliberVantage to you; and you are not entitled to any compensation or reimbursement of any kind from CaliberVantage under any circumstances.

9. Customer’s Proprietary Rights

As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you.

10. Customer Responsibilities

To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that are typically required from you include a Project Manager, one or more Content Creators, a Sales Sponsor, an Executive Sponsor and a Technical Resource. Responsibilities that are typically required include planning of marketing programs; setting of a content creation calendar; creating blog posts, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other sales and marketing systems.

11. Customer Data

a. Limits on CaliberVantage. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct. We will use Customer Data only in order to provide the Subscription Service to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at http://www.CaliberVantage.com/privacypolicy.

b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.

c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.

d. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

12. Use and Limitations of Use

You agree not to: (i) use the Subscription Service except as expressly authorized in this Agreement and your Order Form; (ii) use any device, software, or routine that (a) interferes with any application, function, or use of the Subscription Service, or (b) is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) outsource, rent, resell, sub-license, time-share, or otherwise share the Subscription Service with any third party including service bureau use; (iv) frame or mirror the login page for the Subscription Service; (v) decompile, disassemble or reverse-engineer the underlying software that is part of the Subscription Service or otherwise attempt to derive its source code; (vi) use the Subscription Service either directly or indirectly to support any activity that is illegal; (vi) access the Subscription Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) authorize any third parties to do any of the above.

You shall ensure that any use of the Subscription Service by your Users is in accordance with the terms and conditions of this Agreement.

13. Acceptable Use of Communications Services

You agree to use Communication Services only in compliance with any terms of use specified by each Communication Service. We do not control the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.

14. Indemnification

You agree to indemnify and hold CaliberVantage and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit, modify or otherwise make available through the Subscription Services, your use of the Subscription Service, your connection to the Subscription Service, your violation of the Agreement, or your violation of any rights of another.

15. Disclaimers; Limitations of Liability

a. Disclaimer of Warranties. CaliberVantage does not offer human resources, financial, accounting or legal advice. The Subscription Service may provide general information about the possible use of the Subscription Service or related industry principles or standards, but such general information is intended for informational purposes only, and is not intended to be relied upon as professional legal, regulatory or other advice. The Subscription Service is provided “AS IS” and the entire risk as to satisfactory performance, accuracy, and effort is with you.

CALIBERVANTAGE, ON BEHALF OF ITSELF AND ITS LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, REGARDLESS OF ANY KNOWLEDGE OF SUBSCRIBER’S PARTICULAR NEEDS. WITHOUT LIMINTING THE GENERALITY OF THE FORGOING, CALIBERVANTAGE AND ITS LICENSORS DO NOT WARRANT THAT THE SUBSCRIPTION SERVICE OR ANY SERVICES (INCLUDING SUPPORT) WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE SUBSCRIPTION SERVICE WILL OPERATE IN THE COMBINATIONS THAT SUBSCRIBER MAY SELECT FOR USE, THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE TIMELY, SECURE, ERROR-FREE OR UNINTERRUPTED, OR THAT ANY ERRORS IN THE SUBSCRIPTION SERVICE CAN OR WILL BE CORRECTED, AND NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED OTHERWISE. CALIBERVANTAGE AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICES FAILURES OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM SUBSCRIBERS’ USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.

b. Limitation of Liability. IN NO EVENT SHALL CALIBERVANTAGE’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO CALIBERVANTAGE FOR THE RELEVANT SUBSCRIPTION SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE.

YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

c. Exclusion of Damages. IN NO EVENT WILL CALIBERVANTAGE BE LIABLE FOR ANY SPECIAL, INDIERECT, INCIDENTAL OR CONSEQUENTAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR THE COST OF REPLACEMENT GOODS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SUBSCRIPTION SERVICE OR ANY SERVICES (INCLUDING SUPPORT), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CALIBERVANTAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CALIBERVANTAGE’S LICENSORS DISCLAIM ALL LIABILITY TO SUBSCRIBER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS), ARISING IN CONNECT WITH THIS AGREEMENT.

STATUTE OF LIMITATIONS. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTON ARISING OUT OF OR RELATED TO USE OF SUBSCRIPTION SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BEFORE EVER BARRED.

16. Termination, Suspension and Expiration

a. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

b. Suspension for Prohibited Acts. We may suspend any User’s access to the Subscription Service for use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.

c. Suspension for Present Harm. If your use of the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.

d. Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon fifteen (15) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

e. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to the Customer Data until you pay any fees owed to us. Except as otherwise expressly provided in this Agreement, or unless legally prohibited, CaliberVantage may permanently delete the Customer Data after 30 days following termination or expiration of this Agreement.

f. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable. We will not be liable in any way to you for any termination or suspension of access to the Subscription Service or Customer Data or deletion of the Customer Data in accordance with this Agreement.

17. Confidentiality

For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Subscription Service and any information that is clearly identified in writing at the time of disclosure as confidential.  Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the receiving party; (iv) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; or (v) is Usage Data.

Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the other party (including disclosure of Customer Data to third-party services as directed by you or your Users); (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information, including but not limited to inputting credit card data and social security numbers only in the fields designated for such data in the Subscription Service) and to make Confidential Information available to authorized persons only on a “need to know” basis.  Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.

18. General

a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Harris County, Texas and the parties hereby consent to personal jurisdiction and venue therein. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.

b. Modifications to Applicable Terms or Subscription Fees – We may update or revise this Agreement or change Subscription Fees from time-to-time. We will notify you of such modifications by either sending an email to your notification email address or posting a notice in the administrator’s instance of your account or through the Subscription Service. Any such modifications will be effective as of the next renewal date for your Subscription Service subscription. You may have to click through the modified Agreement to show your acceptance. If you do not agree to the modified Agreement, your sole remedy will be to choose not to renew your account, in which case the post-termination procedures in Section 16 will apply.

c. Force Majeure. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving CaliberVantage employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

e. Relationship of the Parties. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.

f. Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service, including any applicable export laws.

g. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

h. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To CaliberVantage, Inc.: CaliberVantage, Inc., P.O. Box 2710 Cypress, TX 77410-2710, Attention: General Counsel.

We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

i. Entire Agreement. This Agreement and any Order Forms constitute the complete and exclusive understanding and agreement between the parties regarding the Subscription Service and supersede all prior or contemporaneous agreements, emails, or understandings, written or oral, relating to their subject matter, including any different or additional terms and conditions stated by you in connection herewith in a purchase order or otherwise. Except as provided in Section 17(b) (To Applicable Terms or Subscription Fees), Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of the party against whom such provision shall be applied.

j. Assignment. You may not assign this Agreement, in whole or in part, without CaliberVantage’s prior written consent; provided however, that you may assign this Agreement without CaliberVantage’s consent, in connection with a merger, acquisition, or sale of all or substantially all of your assets, provided that you provide CaliberVantage with prior notice. Any attempt to assign this Agreement other than as permitted above will be null and void.

k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

l. Publicity. You grant us the right to add your name and company logo to our customer list and website.

m. Modifications to Applicable Terms or Subscription Fees. CaliberVantage may update or revise this Agreement or change Subscription Fees from time-to-time. CaliberVantage will notify you of such modifications by either sending an email to your notification email address or posting a notice in the administrator’s instance of your account or through the Subscription Service. Any such modifications will be effective as of the next renewal date for your Subscription Service subscription. You may have to click through the modified Agreement to show your acceptance. If you do not agree to the modified Agreement, your sole remedy will be to choose not to renew your account, in which case the post-termination procedures in Section 13 will apply.

n. Survival. The provisions of Sections 1, 5, 7, 14, 15, 16, 17, and 18 will survive termination or expiration of this Agreement.

o. Precedence. In the event of a conflict between this Agreement and a valid Order Form signed or accepted by you, the terms shall apply in the following order of precedence: (1) Item Description in an Order Form; (2) this Agreement; (3) pre-printed terms on the Order Form.