Master Subscription Agreement

a. Customer Owned Data

All data uploaded by Customer to the Service remains the property of Customer, as between Crest Labs and Customer (Customer Data). Customer grants Crest Labs the right to use the Customer Data solely for purposes of performing under this agreement.

b. Access and Usage

Customer may allow its employees and contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for compliance with this agreement by its employees and contractors.

c. Usage Limits

Usage limits and pricing are specified on the order.

d. Customer Responsibilities

Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Crest Labs promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's user guide and applicable law.

e. Crest Labs Support

Crest Labs must provide customer support for the Service under the terms of Crest Labs's Customer Support Policy (Support).

a. Definition of Confidential Information

Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Crest Labs’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer’s Confidential Information includes, without limitation, the Customer Data.

b. Protection of Confidential Information

The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions

Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

d. Data Security Measures

a. Reservation of Rights

The software, workflow processes, user interface, designs, Software and Documentation, and other technologies provided by Crest Labs as part of the Service are the proprietary property of Crest Labs and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Crest Labs. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. Crest Labs reserves all rights unless expressly granted in this agreement.

b. Restrictions

Customer may not (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.

c. Software and Documentation

All software provided by Crest Labs as part of the Service, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by Crest Labs (Software and Documentation) are licensed to Customer as follows: Crest Labs grants Customer a non-exclusive, non-transferable license during the term of this agreement to use and copy such Software in accordance with the Documentation, solely in connection with the Service.

d. Aggregated Data

During and after the term of this agreement, Crest Labs may use and owns all anonymized results and data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support, and other business purposes.

a. Term of this Agreement

This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).

b. Subscription Term

The term of the subscription is as specified in the order. Subscriptions automatically renew for additional periods equal in length to the then current subscription term or one year, whichever is shorter, unless either party gives the other party notice of non-renewal at least 30 days prior to the end of the then current subscription term.

c. Mutual Termination for Material Breach

If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

d. Return Crest Labs Property Upon Termination

Upon termination of this agreement for any reason, Customer must pay Crest Labs for any unpaid amounts and destroy or return all property of Crest Labs. Upon Crest Labs's request, Customer will confirm in writing its compliance with this destruction or return requirement.

e. Suspension for Violations of Law

Crest Labs may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. Crest Labs will attempt to contact Customer in advance.

f. Suspension for Non-Payment

Crest Labs may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.

a. Exclusion of Indirect Damages

Crest Labs is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.

b. Mutual Total Limit on Liability

Except for Crest Labs’s and Customer’s indemnity obligations, the total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) for both parties does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.

a. Defense of Third-Party Claims

Crest Labs will defend or settle any third-party claim against Customer to the extent that such claim alleges that Crest Labs technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Crest Labs of the claim in writing, cooperates with Crest Labs in the defense, and allows Crest Labs to solely control the defense or settlement of the claim.

• Costs. Crest Labs will pay infringement claim defense costs it incurs in defending Customer, and Crest Labs negotiated settlement amounts, and court-awarded damages.
• Process. If such a claim appears likely, then Crest Labs may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Crest Labs determines that none of these are reasonably available, then Crest Labs may terminate the Service and refund any prepaid and unused fees.
• Exclusions. Crest Labs has no obligation for any claim arising from: Crest Labs’s compliance with Customer’s specifications; a combination of the Service with other technology where the infringement would not occur but for the combination; use of Customer Data; or technology not provided by Crest Labs. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND CREST LABS SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

b. By Customer

If a third party claims against Crest Labs that any part of the Customer Data violates a law or infringes that party's patent, copyright, or other right, Customer will defend Crest Labs against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that Crest Labs promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.

a. Entire Agreement and Changes

This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Crest Labs. No waiver is effective unless the party waiving the right signs a waiver in writing.

b. Compliance Audit

No more than once in any 12-month period and upon at least 30 days’ advance notice, Crest Labs (or its representative) may audit Customer’s usage of the Service Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Service and Software in excess of the license.

c. No Assignment

Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger or sale of substantially all the assets of a party.

d. Independent Contractors

The parties are independent contractors with respect to each other.

e. Enforceability and Force Majeure

If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.

f. Money Damages Insufficient

Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.

g. No Additional Terms

Crest Labs rejects additional or conflicting terms of any Customer form-purchasing document.

h. Order of Precedence

If there is an inconsistency between this agreement and an order, the order prevails.

i. Survival of Terms

Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

j. Export Compliance

Customer must comply with all applicable export control laws of the United States, foreign jurisdictions, and other applicable laws and regulations.

k. Third Party Software Licenses

The Software may contain embedded third party software components, which are provided as part of the Software and for which additional terms may be included, if required, in the Documentation.

l. U.S. Government Restricted Rights

If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5), or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software,” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.

m. Feedback

If Customer provides feedback or suggestions about the Service, then Crest Labs (and those it allows to use its technology) may use such information without obligation to Customer.

n. Nonsolicitation

During the twenty-four (24) months following the date hereof, except with the express written permission of Crest Labs, Customer shall not directly or indirectly solicit for employment, employ or otherwise engage the service of any employee of Crest Labs; provided, however, that the foregoing provision shall not prevent Customer from engaging in general solicitations (including, without limitation, use of employment agencies, advertisements and the internet) not specifically directed towards employees of Crest Labs.