Effective: March 1, 2021

These Terms of Subscription Service (“Agreement”) are entered into by and between you, the entity or person placing an order or accessing the Solutions (as defined below) (“Client”) and PXP on the Quote or other order form.

The “Effective Date” of this Agreement is the date that is the earlier of (a) the effective date of the first Quote referencing this Agreement and (b) Client’s initial access to the Solutions through any PXP online registration, provisioning, or order process.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement in which case the term “Client” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms of this Agreement, do not accept this Agreement or use the Solutions. If you receive free access or a trial or evaluation subscription to the Solutions, you are deemed a “Client” under this Agreement and are subject to its terms. You may not use or access the Solutions if you are a direct competitor of PXP or if you are accessing or using the Solutions for the benefit of a direct competitor of PXP.

This Agreement permits Client to purchase a subscription to Solutions and related Professional Services from PXP pursuant to Quotes and sets forth the terms and conditions under which those Solutions and Professional Services will be delivered.

From time to time, PXP may modify this Agreement, changes become effective for existing Clients upon posting of the modified Agreement. If Client does not agree to such changes, Client must notify PXP of such disagreement within ten (10) days, and PXP (at its option and as Client’s exclusive remedy) may either: (i) permit Client to continue under the prior version of this Agreement until the next renewal of the current Order Term, after which the modified Agreement will apply (for example, if Client is on an annual Order Term, then the modified Agreement will apply starting from the beginning of Client’s next annual Order Term after it is posted) or (ii) terminate this Agreement and provide to Client a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term. PXP will use reasonable efforts to notify Client of the changes through Client’s Account, email, or other means. Client may be required to click to accept the modified Agreement before using the Solutions in a renewal Order Term, and in any event continued use of the Solutions during the renewal Order Term will constitute Client’s acceptance of the version of the Agreement in effect at the time the renewal Order Term begins.

Each party expressly agrees that this Agreement is legally binding upon it.

1. DEFINITIONS and INTERPRETATION

1.1 Definitions – Capitalized terms not included in this Section are defined contextually in this Agreement.

a) “Account” means the online account and dashboard that PXP provides for Client to manage its use of the Solutions.

b) “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common ownership or control with Client, where “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting securities or other equivalent voting interests of an entity.

c) “Client Applications” means Client’s and its Affiliates’ online websites, mobile applications, SharePoint sites, and other properties that support the deployment of Tagging Methods. For clarity, Client Applications do not include Client’s accounts or content on Third Party Platforms.

d) “Client Content” means any visual elements, images, text, or other content provided by Client to use within Solutions (e.g., to customize Client’s accounts) as permitted by PXP and the functionality of the Solutions.

e) “Client Data” means all data collected by or on behalf of Client through the Tagging Methods, as well as the results, reports, and data feeds based on such collected data that are provided to Client through the Solutions (excluding any PXP Products). If Client uploads any data directly into the Solutions, that data is also included in Client Data.

f) “Client Materials” means any Client materials (including Solutions Data or Client Content) reasonably required for PXP to perform the Professional Services.

g) “Contractors” means independent contractors and consultants who are not competitors of PXP.

h) “Deliverables” means any deliverables provided by PXP to Client in connection with the Professional Services.

i) “Documentation” means the applicable Solutions descriptions and end user technical documentation made available with the Solutions and currently located here (as may be modified from time to time by PXP in its sole discretion).

j) “Erase” means to render access to data infeasible when using simple non-invasive data recovery techniques.

k) “EU Data Protection Directive” means EU Data Protection Directive 95/46/EC (or successor).

l) “Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those related to data privacy and data transfer.

m) “Order Term” means the subscription term specified for each Solution in the applicable Quote and, in the event that such Quote does not include a “start date”, the Order Term will commence on the date that PXP electronically confirms Client’s order to the applicable Solution.

n) “Permitted Users” means Client’s employees, Contractors, and Affiliates (and its Affiliates’ employees and Contractors).

o) “Prohibited Data” means any personal data that could be legally considered sensitive in any applicable jurisdiction, including government issued identification, individual medical or health information (including PHI), financial account numbers, credit or debit card numbers, authentication factors (including security codes, passwords, biometric information, and answers to security questions), and special categories of personal data as defined in Article 8 of the EU Data Protection Directive.

p) “Solutions” means the specific online software-as-a-service products ordered by Client as identified on the applicable Site. The term “Solutions” includes the related Features and Documentation.

q) “Site” means the PXP website service the Client has subscribed to, application programming interfaces (“APIs”), software development kits (“SDKs”), made available to Client for use with Client Applications.

1.2 Interpretation – In this Agreement, the words “including” and “in particular” and any similar words or expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions. Further, headings in this Agreement are for convenience only and do not affect its interpretation.

2. THE SOLUTIONS

2.1 Overview – PXP offers various Solutions to small businesses by means of web applications, mobile applications, APIs and SDKs. The Solutions are provided on a subscription basis for specified Order Terms.

2.2 Access and Use – Client may access and use the Solutions specified on the applicable Site during the applicable Order Terms solely for its own internal business purposes and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Site.

2.3 Permitted Users – Client may allow its Permitted Users to access and use the Solutions, provided (i) Client remains responsible for compliance by each Permitted User with all of the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Site, and (ii) any use of the Solutions by a Permitted User is for the sole benefit of Client or its Affiliates. Only Client and its Permitted Users may access and use the Solutions, and use of the Solutions by Client and its Permitted Users in the aggregate must be within the scope of use restrictions designated in the applicable Site. Client acknowledges that personal data of Permitted Users is used by PXP in accordance with PXP’ Privacy Statement located on the applicable Site.

2.4 Authentication – Each Permitted User shall receive a unique user ID, which may not be shared. Client shall require that all Permitted Users keep their authentication factors (such as user ID and user credentials) strictly confidential and not share such information. Client shall be responsible for any and all actions taken in Client’s Account by its Permitted Users, and shall immediately notify PXP of any unauthorized access to or use of its Account.

2.5 General Restrictions – Client shall not (and shall not permit any third party to):

(a) rent, lease, provide access to, or sublicense any Solution to a third party (except for Permitted Users as authorized in Section 2.3), copy any Solutions, or use any Solution for time sharing, hosting, service bureau, or like purposes;

(b) reverse engineer, decompile, or disassemble any Solution, or otherwise seek to obtain the source code or non-public APIs to any Solution;

(c) modify any Solution or any Documentation, or create any derivative work from any of the foregoing;

(d) remove or obscure any proprietary or other notices contained in any Solution;

(e) publicly disseminate performance metrics or benchmarking information regarding any Solution;

(f) attempt to gain unauthorized access to any Solution or other systems, networks, or data of PXP, or interfere with or disrupt the integrity or performance of any such Solution, systems, networks, or data;

(g) use or knowingly permit the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security or vulnerability of any Solution or other systems, networks, or data of PXP; or

(h) use any Solution to retrieve, store, or transmit any malware (e.g., viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs).

3. SOLUTIONS DATA

3.1 Rights in Solutions Data; Right to Use Solutions Data – As between the parties, Client shall retain all right, title, and interest (including any and all intellectual property rights) in the Client Data, and PXP claims no right, title or interest in Client’s Solutions Data.

3.4 Client Obligations

(a) Generally. Client is solely responsible for the accuracy, content, and legality of all Solutions Data and for its Client Applications. Client shall ensure that Client’s use of the Solutions and all Solutions Data is at all times compliant with Client’s and any applicable Third Party Platform’s privacy policies and all Laws, including (if applicable) the California Online Privacy Protection Act or similar laws governing data tracking across sites.

4. SOLUTIONS SECURITY AND DATA PROTECTION & PRIVACY

4.1 Solutions Security – PXP agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Client Data. Except to the extent caused by Clients mishandling of access credentials, PXP shall have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond PXPs’ control. Further, notwithstanding anything to the contrary herein, PXP is not responsible in any way for Solutions Data after such Solutions Data is transmitted, copied, extracted, or removed from PXPs’ servers by Client or a Third Party Platform.

5. OWNERSHIP

This is a subscription agreement for access to and use of the Solutions. Client acknowledges that it is obtaining only a limited right to the Solutions and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Client under this Agreement. Client agrees that PXP or its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Solutions, Deliverables, all related and underlying technology, documentation, work product, tools, designs, methodologies, processes, techniques, ideas, and know-how, and all derivative works, modifications, or improvements of any of the foregoing, as well as all comments, questions, suggestions, or other feedback relating to the Solutions or Professional Services that Client submits to PXP, no rights in any PXP Technology are granted to Client. Further, Client acknowledges that the Solutions are offered as an on-line, Software-as-a-Service (SaaS) solution, and that Client has no right to obtain a copy of any underlying code or technology in any Solution.

7. ORDER TERM, FEES & PAYMENT

7.1 Order Term and Renewals – Unless otherwise specified on the applicable Quote, each Order Term shall automatically renew for additional one (1) month period unless either party gives the other written notice of termination at least ninety (90) days prior to expiration of the then-current Order Term.

7.2 Fees and Payment – All fees are as set forth in the applicable Site and shall be paid by Client in accordance with the invoice schedule and in the currency set forth in the applicable Site (and if none, within thirty (30) days of the date of applicable invoice and in U.S. currency). All fees are non-refundable. The rates in the applicable Site are valid for the Order Term set forth in such Site and thereafter shall be subject to an increase of no more than five percent (5%) per year (subject to Client retaining the same Solutions package, capacity and functionality levels). Client is required to pay any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies, whether domestic or foreign (other than taxes based on the income of PXP), and all such taxes and levies are excluded from any rates or prices provided by PXP.

7.3 Suspension of Solutions – If (a) PXP has sent Client a payment reminder for an overdue payment, and Client fails to pay the amount due within seven (7) days after receiving such payment reminder, or (b) Client has breached its obligations under this agreement, then, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), PXP reserves the right to suspend Client’s access to the applicable Solution, content delivery and any related support, or Professional Services, without liability to Client, until payment has been made or the breach has been cured. Prior to suspending Client’s access for Client’s breach, PXP will use reasonable efforts to provide Client with notice and a reasonable opportunity to cure, unless PXP reasonably determines that such breach may cause harm to other clients or threaten the security or integrity of a Solution, in which case suspension may be immediate.

8. TERM AND TERMINATION

8.1 Term – This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Order Terms.

8.2 Termination for Cause – Either party may terminate this Agreement if the other party:

(a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice;

(b) ceases operation without a successor; or

(c) seeks protection under any bankruptcy, insolvency event, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

Upon termination by Client for PXPs’ breach in accordance with this Section 8.2, PXP shall promptly refund to Client any such Solution fees already paid with respect to the terminated portion of the applicable Order Terms. Upon termination by PXP for Client’s breach, Client shall pay PXP for the total fees contractually committed for all Order Terms.

8.3 Effect of Termination – Upon any expiration or termination of this Agreement, Client shall:

(a) immediately cease any and all use of and access to its Account and the Solutions;

(b) Erase any and all copies of the Documentation, any PXP-related passwords or access codes, and any other PXPs’ Confidential Information in its possession; and

(c) remove all Tagging Methods from Client Applications and otherwise discontinue use thereof.

Upon request, Client shall certify to PXP in writing that it has fully complied with the foregoing requirements. Client acknowledges that, following termination, it shall have no further access to its Account or any Solutions Data, and that PXP may delete Client’s Account and Erase any Solutions Data in its possession at any time. Neither party shall have any liability resulting solely from a permitted termination of this Agreement in accordance with its terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

9. WARRANTY AND DISCLAIMER

9.1 Limited Warranty – PXP warrants, for Client’s benefit only, that the Solutions will operate in substantial conformity with the applicable Documentation. PXPs’ sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty shall be, in PXPs’ sole discretion and at no charge to Client, to use commercially reasonable efforts to correct the reported non-conformity or, if PXP determines (in its sole discretion) such remedy to be impracticable or fails to correct the non-conformity, either party may terminate the applicable Order Term and Client shall receive as its sole remedy a refund of any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Term.

The limited warranty set forth in the first sentence of this Section 9.1 shall not apply:

(a) unless Client notifies PXP within thirty (30) days following the date on which Client first noticed the non-conformity;

(b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software or services; or

(c) to any use of the Solutions provided on a no-charge basis (e.g., Trial Subscriptions).

9.2 Warranty Disclaimer – EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOLUTIONS AND ALL RESULTS AND REPORTS GENERATED THEREFROM AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER PXP NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING PXPS’ EXPRESS OBLIGATIONS IN SECTION 5 (SOLUTIONS SECURITY & PRIVACY), 9.1 (LIMITED WARRANTY) OR 10 (SUPPORT SERVICES; sla), PXP DOES NOT WARRANT THAT CLIENT’S USE OF THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE SOLUTIONS DATA FOR ACCURACY, THAT IT WILL PRESERVE OR MAINTAIN THE SOLUTIONS DATA WITHOUT LOSS, OR THAT THE SOLUTIONS WILL MEET CLIENT’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE). PXP SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PXP (INCLUDING BUT NOT LIMITED TO ANY THIRD PARTY PLATFORM). CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF such statutory rights, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

13. INDEMNIFICATION

13.1 By PXP – PXP shall defend Client from and against any claim by a third party alleging that PXPs’ proprietary technology used in the performance of the Solutions, when used as authorized under this Agreement, actually infringes a U.S. or Great Britain (“GBR”) patent, U.S. or GBR copyright, or U.S. or GBR trademark, and shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by PXP (including reasonable legal fees) resulting from such claim.

If Client’s use of any Solution is (or in PXPs’ opinion is likely to be) enjoined, if required by settlement, or if PXP determines such actions are reasonably necessary to avoid material liability, PXP may, in its sole discretion:

(a) substitute substantially functionally similar products or services;

(b) procure for Client the right to continue using the Solution; or

(c) if (a) and (b) are not commercially reasonable, terminate the Agreement and refund to Client any Solution fees that Client already paid with respect to the terminated portion of the applicable Order Terms.

The foregoing indemnification obligation of PXP shall not apply:

(1) if the Solution is modified by any party other than PXP, but solely to the extent the alleged infringement is caused by such modification;

(2) if the Solution is combined with products or processes not provided by PXP, but solely to the extent the alleged infringement is caused by such combination;

(3) to any unauthorized use of the Solution;

(4) to any action arising as a result of Solutions Data or any third-party deliverables or components contained within the Solution;

(5) to any release or version of the Tagging Methods other than the then-current release or version; or

(6) if Client settles or makes any admissions with respect to a claim without PXPs’ prior written consent.

15. MARKETING

During the term of the Agreement, PXP may use Client’s name, logos, and trademarks to identify Client as a customer on PXPs’ website, social media, and other marketing materials.

16. GENERAL TERMS

16.1 Assignment – This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities, provided that, in Client’s case, the assignee is not a competitor of PXP. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 1 will be null and void.

16.2 Severability – If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

16.3 Governing Law; Jurisdiction and Venue – This Agreement shall be governed by the laws of the State of Utah and the U.S. without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts located in Utah and both parties hereby submit to the personal jurisdiction of such courts.

16.4 Attorneys’ Fees and Costs – The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

16.5 Notice – Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Site or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee:

(a) if given by hand, immediately upon receipt;

(b) if given by overnight courier service, the first business day following dispatch; or

(c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

Notices and communications may also be provided via electronic mail (which notices and communications shall be deemed to have been received immediately upon receipt), except that neither party shall provide any notice or communication related to Section 8 (Term and Termination), Section 9.1 (Limited Warranty) or Section 13 (Indemnification) via electronic mail.

16.6 Amendments; Waivers – Except as otherwise expressly set forth herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

16.7 Entire Agreement – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

1.3 Data Destruction

Within thirty (30) days following termination or expiration of the Agreement, PXP will delete all client data, other than backup copies held for disaster recovery purposes. Upon request, PXP will provide a certificate of destruction within thirty (30) days.