eSUB Inc. Master Services Agreement

This Master Services Agreement is a binding agreement made between, eSUB, Inc. (hereinafter, "eSUB," "we," or "our") and you, a customer of eSUB that has entered into a Subscription Agreement which incorporates this Agreement in its entirety. As used herein, "you", "your", and "Customer" refer to the entity or person that entered into such Subscription Agreement, together with all Affiliates of such entity or person. All components of this Master Services Agreement are collectively referred to herein as the “Agreement." Capitalized terms used herein shall have the meanings ascribed to them in this Agreement. 

You acknowledge that you have had the opportunity both to review the Agreement and to consult with legal counsel prior to acceptance of this Agreement. By signing a Subscription Agreement or by accessing or using the Services, you acknowledge that you have read and understand this Agreement, that you accept all of the terms and conditions contained here in full, and that you agree that the terms and conditions shall be fully and legally binding upon you and your Affiliates, without the need for  any further indication of acceptance on your part (such as by signature, click through or other means of electronic acceptance). If you are acting on behalf of an entity, you represent that you have full legal authority to bind the entity and its Affiliates. 

IF YOU CHOOSE NOT TO AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS AND/OR USE THE SERVICES. YOUR ACCESS AND/OR USE OF THE SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. 

eSUB RESERVES THE RIGHT TO CHANGE THIS AGREEMENT OR ANY PART OF THE eSUB SERVICE AT ANY TIME. ALTHOUGH eSUB MAY INCLUDE A NOTICE ON THE eSUB WEBSITE OR WITHIN THE eSUB SERVICE THAT THIS AGREEMENT HAS BEEN MODIFIED, SUCH NOTICE MAY NOT REMAIN IN PLACE FOR ANY EXTENDED PERIOD OF TIME. ACCORDINGLY, YOU SHOULD REVIEW THIS AGREEMENT, AS POSTED ON THE eSUB SERVICE, FROM TIME TO TIME. TO THE FULLEST EXTENT PERMITTED UNDER ALL APPLICABLE LAWS, RULES, REGULATIONS AND REQUIREMENTS (COLLECTIVELY, "APPLICABLE LAWS"), YOUR CONTINUED USE OF THE eSUB SERVICE AFTER ANY REVISED MASTER SERVICES AGREEMENT HAS BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF THE REVISED AGREEMENT AND YOU SHALL BE BOUND TO THE REVISED AGREEMENT AS THOUGH IT WAS IN EFFECT AT THE TIME YOU ORIGINALLY ENTERED INTO THE APPLICABLE SUBSCRIPTION AGREEMENT OF WHICH THIS AGREEMENT IS A PART. 

This Agreement is effective between you and eSUB as of the date of your execution of the Subscription Agreement. This Agreement, as modified, amended or restated by eSUB, will continue in full force and effect until it is terminated as set forth herein. 

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

"Agreement" means this Master Services Agreement entered into by you and eSUB. 

"API" means externally published "Application Program Interfaces". 

“eSUB On-Premises Integration Provider” means any and all -eSUB provided software which is either accessible online or, downloaded and stored for use on Customer Owned Equipment for the purposes of providing data integration capabilities with eSUB Subscription Services. 

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. 

"Non-eSUB Applications" means online applications, subscriptions and offline software products that are provided by entities or individuals other than eSUB and are clearly identified as such, and that interoperate with the Service. For avoidance of doubt, Non-eSUB Applications include third-party subscriptions or software offered through eSUB as part of your e-SUB subscription but which are clearly identified as third-party products or services. 

"Subscription Services" means Services that you or your Affiliates purchase under a perpetual, annual or longer subscription pursuant to a Subscription Agreement, as distinguished from those provided on a trial basis (for example, a short-term subscription purchased pursuant to a Pilot Subscription Agreement). 

"Service" means the products and services that are ordered by you through any trial or Subscription Agreement and made available by eSUB online via the customer login link at https://www.esubonline.com and/or other  web pages designated by eSUB, including associated offline components,  and APls as described in eSUB's Online Help. "Service" excludes non-eSUB applications. 

"Subscription Agreement" means the documents for placing orders hereunder, for the Services including addenda thereto that are entered into between you and eSUB or any of our Affiliates from time to time. By one entity in an affiliated group entering into a Subscription Agreement, each Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscription Agreements shall be deemed incorporated herein by reference. 

"Users" means individuals who are authorized by you to use the Subscription Services (or for whom subscriptions to use Subscription Services have been ordered), and who have been supplied user identifications and passwords by you (or by eSUB at your request). Users may include but are not limited to your employees, consultants, contractors, agents, and third parties with which you transact business. 

1. Provisions. We shall make the Subscription Services available to you pursuant to the terms and conditions of this Agreement and the relevant Subscription Agreements during the subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by eSUB regarding future functionality or features. 
2. User Subscriptions. Unless otherwise specified in the applicable Subscription Agreement; (i) Services are purchased as User subscriptions and  may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions  thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, (iii) eSUB reserves the right to bill for additional Users subscriptions, in excess of the number of Users specified in the Subscription Agreement, that are added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iv) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. All User subscriptions are billable and valid through the life of the Subscription Agreement regardless of their status or usage pursuant to the terms set forth in the Subscription Agreement. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service. 
3. Software License. In connection with the Subscription Services, you may be provided or have access to one or more software programs supplied by eSUB accessed via remote cloud services including APls and via installation and use on your computers or mobile devices, including Integrations (collectively and individually, the "Software"). eSUB hereby grants to you a non-exclusive and non-transferable license to use the Software during the subscription term in connection with the Service and according to the provisions contained herein. You are not permitted to lease, rent, distribute or sublicense the Software or any rights therein. You also may not use the Software in a time-sharing arrangement or in any other unauthorized manner. No license is granted to you in the human readable code of the Software (source code).  If you are using APIs, you agree to also be bound by the API Terms of Use: https://app.esub.com/apiterms.  The API Terms of Use are incorporated into this Agreement. 
   

You agree that you have no right, power or authority to make any modifications to or unauthorized copies of the Software. You agree not to transfer or assign the Software to another party without the prior written consent of eSUB. You agree not to modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software or permit or assist someone in performing such prohibited acts. You agree to allow eSUB, on a confidential basis, to audit any software code that you use to call out or access our APls. 

1. eSUB's Responsibilities. eSUB shall: (i) provide you with online training and live support available Monday-Friday 6am to 5pm PST (not including holidays) for the Subscription Services as described elsewhere in this Agreement at no additional charge, (ii) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for: (a) planned downtime of which we shall give at least 8 hours' notice via the Subscription Services and which we shall schedule to the extent practicable outside of normal hours of operation for a majority of our customers (typically each Thursday from 9:00 p.m. until each Friday at 3:00 a.m. Pacific Time), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet or Cloud service provider failures or delays, or denial of service attacks, and (iii) provide the Subscription Services only in accordance with applicable laws and government regulations. 
2. eSUB's Protection of Your Data. eSUB shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the data related to your business that you submit, post, transmit or upload when using the Service (collectively, your "Data"). We will not (a) modify your Data, 
   1. (b) disclose your Data except as compelled by law or as expressly permitted in writing by you, or (c) access your Data except to provide the Service, enhance the Service or develop new services, and prevent or address service or technical problems, or at your request in connection with customer support matters, and except as set forth in the Privacy Policy. 
3. Your Responsibilities. You agree to the User Terms and Conditions attached hereto as Exhibit A for yourself and your Users. You shall (i) be responsible for Users' compliance with this Agreement, including the User Terms and Conditions in Exhibit B, (ii) be responsible for the accuracy, quality and legality of your Data and of the means by which you acquired your Data, 
   1. (iii) prevent unauthorized access to or use of the Service and notify eSUB promptly of any such unauthorized access or use, (iv) use the Service only in accordance with this Agreement, eSUB's Online Help and applicable laws and government regulations; and (v) regularly maintain separate backups your Data to prevent loss of your Data. You shall not (a) make the Service available to anyone other than Users and each User shall have his or her own, separate account and login credentials, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third­ party data contained therein, (f) attempt to gain unauthorized access to the Service or their related systems or networks, or (g) copy, translate, decompile, create, or attempt to copy, translate, decompile or create by reverse engineering or otherwise, the source code from the object code of any software used within the Service. You shall be responsible, at your own expense, for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including without limitation, hardware, software, networking, and the like. You accept all responsibility for any data, information or material that you and your Users process or submit to the Service in the course of using the Service. 

If you register for a trial, eSUB will make one or more Services available to you on a temporary basis for a paid amount and duration specified in a Pilot Subscription Agreement. These trials will continue until the earlier of (a) the end of the trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Subscription Services ordered by you. ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CUSTOMIZATIONS MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICE, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. DURING THE TRIAL THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY. 

1. Fees. You shall pay all fees specified in all Subscription Agreements hereunder. Fees are based on Services subscribed and not actual usage. Payment obligations may not be cancelled and are non-refundable. Subscription fees are billed and payable in accordance with the Subscription Agreement and quantities purchased cannot be decreased during the relevant subscription term. At the commencement of any renewal subscription term, unless otherwise indicated herein, the annual fees for the Services subscribed shall be due and payable immediately. Unless otherwise stated in the Subscription Agreement, you agree that the Company shall have the right to increase the fees for the Services subscribed by up to 15% per year at each subscription renewal. 
2. Invoicing and Payment. You must provide eSUB with valid and updated payment method information. You authorize eSUB to charge such payment account for all Services listed in the Subscription Agreement for the initial subscription term and any renewal subscription term(s), including any applicable service charges or fees for such payment method. Such charges shall be made in advance, either annually or in accordance with the billing frequency stated in the applicable Subscription Agreement. Upon renewal of the Subscription, Subscription fees will be charged with the same frequency that applied during the prior subscription term and will be charged to the payment account on file unless you submit a written request for alternate billing frequency and eSUB approves the terms of alternate billing. Quantities renewed will be in accordance with the quantities purchased in the prior subscription term unless you provide a written request to decrease quantities for the renewal term 30 days in advance of the date of renewal. Once renewed, quantities cannot be decreased during the new subscription term. Unless otherwise stated in the Subscription Agreement, invoiced charges are due on receipt from the invoice date. You are responsible for providing complete and accurate billing and contact information to eSUB and notifying eSUB of any changes to such information. 
3. Overdue Charges. If any charges are not received from you by the due date, then at our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or we may condition future subscription renewals and Subscription Agreements on payment terms different than those specified. 
4. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for eSUB's Services is 10 or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, or suspend eSUB's services to you until such amounts are paid in full, or both. We will email notice to your account contacts giving you at least 72 hours' prior notice that your account is overdue before suspending Services. 
5. Taxes. Unless otherwise stated, eSUB's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If eSUB has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide eSUB with a valid tax exemption certificate authorized by the appropriate taxing authority.  
6. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments regarding future functionality or features.
    

1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, eSUB reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. 
2. Restrictions. You shall not (i) permit any third party to access the Service except as permitted herein or in a Subscription Agreement, (ii) create derivative  works based on the Service except as authorized herein, (iii) copy, frame or mirror any part or content of the Service, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Service, or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics  of the Service. 
3. Your Applications and Code. Unless explicitly agreed to by eSUB, neither you nor any User shall not create applications or program code required to be hosted by eSUB as part of the Service. 
4. Your Data. Your Data remains your sole and exclusive owned property. We acquire no right, title or interest from you or your licensors under this Agreement in or to your Data, including any intellectual property rights therein. 
5. Enhancements. We shall have a transferable, royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you or other Users, relating to the Service

1. On-Line Training/Support and Telephone Support. Online Training/Support and Live Support regarding your implementation and use the eSUB Service is provided to you and your Users as part of your Subscription Services at no additional cost. Live Support is available Monday-Friday 6am-5pm PST, not including holidays. Online training may include instructions, FAQs, tips, email reminders, training videos, tutorials, chat functionality, and webinars provided through the Company's website. Except as explicitly provided in this Section 7.1, eSUB makes no commitment and is under no obligation to provide training, support or other professional services as part of the Subscription Services or without additional charge. 
2. In-Person or On-Premises Training. In person or on-premises training at your office location or elsewhere may be provided as mutually agreed between us in writing. Such services will generally be provided by eSUB on an as negotiated basis or as otherwise mutually agreed in writing between us (which may include email correspondence). 
3. Custom Implementation or Integration Services. Custom implementation or integration services may be provided for an additional cost, as mutually agreed between us in writing. Any such services will be performed "as is" and without warranty, and eSUB shall in no way be responsible for any loss of User Data or inability to use the such data as intended or contemplated by you (that is, we provide no warranty of merchantability or fitness for a particular use with respect to such services). 
4. Other Professional Services. Other professional services may be mutually agreed from time to time by the parties. Such services may be provided by eSUB on an as negotiated basis, or they may be provided pursuant to an alternative fee structure, in each case as mutually agreed by the parties. Unless otherwise explicitly agreed in writing, such services will be performed "as is" and without warranty. 
5. Deliverables. In the event any professional services performed by eSUB or its third-party contractors include deliverables, a detailed description of such deliverables and any applicable acceptance or rejection criteria and processes will be described in a written document agreed to in advance by the parties. In the event such services or deliverables include or require changes to our websites, additional, new or customized features or data formats, or any software development or modification, then, unless otherwise explicitly agreed by eSUB in writing, eSUB will own all intellectual property rights in and to the deliverables and all intellectual property that it develops or creates in the course of defining and performing such services.
6. Reimbursement of Out-of-Pocket Expenses. With respect to any services described in this Section 7, in the event such services are performed at your site or a site designated by you, you agree to reimburse eSUB for its reasonable out-of-pocket travel, meals, and accommodation expenses.
   
   

1. Definition. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally 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. Your Confidential Information shall include your Data; Our Confidential Information shall include the Service; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Subscription Agreements, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 
2. Protection. The Receiving Party shall hold in strict confidence and shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) to protect Disclosing Party's Confidential Information. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (except as otherwise authorized by the Disclosing Party in writing, Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Subscription Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent. 
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. 
   

1. Acquisition of Non-eSUB Applications and Services. We or third parties may, from time to time, make available to you, third-party products or services, including, but not limited to, Non-eSUB Applications and implementation, customization and other consulting services. Any acquisition by you of such Non-eSUB Applications or services, and any exchange of data between you and any Non-eSUB provider, including any exchange of data facilitated by the Software, is solely between you and the applicable Non­ eSUB provider. Your use of Non-eSUB Applications and services, and use of the Software in connection with non-eSUB Applications, is at your own risk. In the event you suffer any damages, costs or liability resulting from accessing or using a Non-eSUB Application or service, or in the event a Non-eSUB Application or service fails to perform in accordance with its specifications or warranty, or in the event any of your data is lost or corrupted in connection with using or transferring data to or from a Non-eSUB Application or service, you agree not bring any claim against eSUB and you shall hold eSUB harmless for any damages, costs, liability or performance failure. You understand and agree that, except as specified in a Subscription Agreement, we do not warrant or support Non-eSUB Applications or services, whether or not they are designated by eSUB as "certified" or otherwise. No purchase of Non-eSUB Applications or services is required to use the Service except a supported computing device, operating system, web browser and Internet connection. 
2. Non-eSUB Applications and Your Data. If you install or enable Non-eSUB Applications for use with the Service, you acknowledge that eSUB may allow providers of those Non-eSUB Applications to access your Data as required for the interoperation of such Non-eSUB Applications with the Service. We shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by Non-eSUB Application providers. eSUB shall allow you to restrict such access by restricting Users from installing or enabling such Non-eSUB Applications for use with the Service. 

1. Our Warranties. eSUB warrants that (i) it is in good standing with all applicable local, state, and federal agencies; and (ii) the person executing this Agreement on behalf of eSUB is authorized to bind eSUB to the terms and conditions contained herein. For any breach of a warranty above, your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below. 
2. Your Warranties. You warrant that you (i) are in good standing with all applicable local, state, and federal agencies; and (ii) you are authorized to enter into this Agreement and to bind your organization to the terms and conditions contained herein. 
3. Disclaimer. eSUB DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. eSUB DOES NOT WARRANT THAT THE SOFTWARE WILL BE BUG-FREE OR ERROR FREE OR THAT THE SOFTWARE PERFORMS OR WILL PERFORM ANY SPECIFIC FEATURES OR FUNCTIONS. NOR DOES eSUB MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE SOFTWARE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE AND THE SOFTWARE ARE PROVIDED "AS IS" AND NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 
4. Non-Generally Available Services. From time-to-time eSUB may invite you to try, at no charge, our products, software or services that are not generally available to eSUB Subscribers ("Non-Generally Available Services"). You may accept or decline any such use in your sole discretion. Any Non­ Generally Available Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-Generally Available Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GENERALLY AVAILABLE SERVICES ARE NOT CONSIDERED PART OF THE "SERVICE" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. eSUB may discontinue Non-Generally Available Services at any time in our sole discretion and may never make them generally available.  

1. Your Remedies for Claims Against You. In the event a third party alleges that the use of  the  Services as permitted  hereunder  infringes or misappropriates the intellectual  property  rights of  a third party (a "Claim Against You"), or if we reasonably believe the Service may infringe or misappropriate another party's intellectual property rights, We may, in our discretion and at no cost to you, (i) modify the Service so that it no longer infringes or misappropriates, without breaching our warranties under Section 10.1above, (ii) obtain a license for your continued use of the Service in accordance with this Agreement, or (iii) terminate your User subscriptions for such Service upon 30 days' written notice and refund to you any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination. In the event we modify the Service as described in subpart (i) of the foregoing sentence, certain aspects or features of the Service may be affected or may no longer be available. Such modification will not result in a breach of warranty by eSUB unless the Service as a whole is materially and detrimentally affected by such modification and no longer performs materially in accordance with eSUB's Online Help. The foregoing is your exclusive remedy for a Claim Against You. 
2. Indemnification. You shall defend eSUB against any claim, demand, suit or proceeding made or brought against eSUB by a third party alleging that your Data, or your use of the Service in breach of this Agreement, infringes or misappropriates the intellectual property or privacy rights of a third party or violates applicable law (a "Claim Against eSUB"), and shall indemnify eSUB for any damages, attorneys' fees and costs finally awarded against eSUB as a result of, or for any amounts paid by eSUB under a settlement of, a Claim Against eSUB; provided that eSUB (a) promptly gives you written notice of the Claim Against eSUB; (b) gives you sole control of the defense and settlement of the Claim Against eSUB (provided that you may not settle any Claim Against eSUB unless the settlement unconditionally releases eSUB of all liability, and provided that the settlement does not contain any admission or statement suggesting any wrongdoing or liability on behalf of eSUB, does not contain any equitable order, judgment or term that in any manner affects, restrains or interferes with the business of eSUB or any eSUB Affiliate, and does not contain any equitable order, judgment or term that in any manner requires eSUB to pay any amount); and (c) provides to you all reasonable assistance, at your expense. 
   

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING PUNITIVE AND LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, (I) ESUB'S LIABILITY WITH RESPECT TO ANY INCIDENT OR SERIES OF RELATED INCIDENTS IN CONNECTION WITH OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO ESUB FOR THE SERVICES IN THE PRIOR 12 MONTHS PRECEDING THE INCIDENT(S), AND (II) ESUB'S AGGREGATE LIABILITY ARISING IN CONNECTION WITH OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY RECEIVED BY ESUB UNDER THIS AGREEMENT. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 

FURTHER, NEITHER ESUB NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES OR SOFTWARE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) ESUB'S DISCONTINUATION OF ANY OR ALL ACCESS TO THE SERVICES, OR (Ill) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES AND SOFTWARE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF YOUR DATA. 

YOU ACKNOWLEDGE THAT THE FEES APPLICABLE FOR THE SERVICE REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT ESUB WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OR OFFERED THE SERVICES AND SOFTWARE TO YOU WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT. 

1. Term of Agreement. This Agreement commences on the date you accept it and continues for the subscription term described in the Subscription Agreement. On the expiration date of each subscription term, this Agreement will automatically renew for a successive term equal to the prior subscription term length unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term. If you elect to use the Service for a trial period and do not purchase additional subscription services prior to the end of that period, this Agreement will terminate at the end of the trial period. Upon automatic renewal of your Subscription, Subscription fees will be charged on an annual basis to the payment method on file unless other payment terms are set forth in the Subscription Agreement. Quantities renewed will be in accordance with the quantities purchased in the prior subscription term, unless notice is provided as defined in Section 5.2. 
2. Termination for Cause. A party may terminate this Agreement for cause: 
   1. (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 
3. Payment upon Termination. Upon any termination by you for cause, eSUB will credit any future invoices for the remaining Subscription term, if applicable, as of the effective date of termination. Any prepaid fees shall be considered forfeit. Upon any termination by eSUB for cause, you shall pay any unpaid fees covering the remainder of the term (or the remainder of the renewal term, as applicable) of all Subscription Agreements after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to eSUB for the period prior to the effective date of termination. 
4. Customer data retention upon termination. Upon termination, data will be retained within the eSUB platform for a period of 60 days from the termination date. After this period, all customer data will be purged from the eSUB platform and will be unrecoverable.
   
   

1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been duly  if delivered by (i) sent via next-day delivery by a national recognized carrier (e.g. the United States Post Office, United Parcel Service, or Federal Express) with proof of delivery requested, as follows:  

   1. eSUB, Inc. 

      Attention: Jonathan Sharp

      P.O. Box 421080 

      San Diego, CA 92142 USA 

      Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant Services system administrator designated by you. 

2. Agreement to Governing Law and Jurisdiction. This Agreement, including, but not limited to, its validity, interpretation, construction, performance and enforcement, shall be construed in accordance with and governed by the laws of the State of California (without giving effect to its conflicts of law principles). Any party bringing a legal action or proceeding against the other arising out of or relating to this Agreement or the transactions it contemplates shall bring the legal action or proceeding in federal or state courts located in San Diego County, California. Each party consents to the exclusive jurisdiction of said courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates. Each party agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum. Each party waives, to the fullest extent permitted by law, any objection which it may now or later have to the venue agreed upon herein, and any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. 
3.  Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
    

1. Export Compliance. The Service, the Software, other technology eSUB makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services or Software in a U.S.- embargoed country or in violation of any U.S. export law or regulation. 
2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 
3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 
4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 
5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 
6. Attorney Fees. Should it be necessary to institute any action to enforce the terms of this Agreement, the parties hereby agree that the substantially prevailing party in any such action shall be entitled to recover its reasonable attorneys' fees, as well as all costs of the action, including, but not limited to court costs, filing fees, exhibit fees, forensic consultant fees, litigation support costs and expert witness fees. Further, recoverable attorneys' fees and costs shall include the costs for such items for any appeals. This paragraph shall remain independent from any judgment entered to enforce its terms, shall not merge therewith, and shall entitle the prevailing party to attorneys' fees and costs incurred in connection with post judgment collection and enforcement efforts. 
7. Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of eSUB (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Subscription Agreements), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non­ assigning party's election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 
8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Subscription Agreements and Privacy Policies, constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Subscription Agreement, the terms of such exhibit, addendum or Subscription Agreement shall prevail unless otherwise provided in such exhibit, addendum or Subscription Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Subscription Agreements) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. 
9. Amendment. We reserve the right to modify, amend or restate this Agreement at any time. In connection therewith, we may provide written notice to you of changes to this Agreement and we will make the updated Agreement available to you by posting it on our website or within the Service (for purposes of providing notice, email notices or "pop-up" or other notices within the Service may be used). Without regard to any notices that may be provided, it is your responsibility to review the most current version of this Agreement from time to time. Your continued use of the Service after the date this Agreement is posted or otherwise made available on our website or within the Service will represent and confirm your acceptance of such modified, amended or restated Agreement. 

EXHIBIT A 

USER TERMS AND CONDITIONS 

1. Ownership and Operation 
   1. eSUB, Inc. ("eSUB", "we", "our") operates and maintains the eSUB service, which includes, but is not limited to, eSUB's: (i) website (https://eSUB.com), customer portal and all subdomains, and all other websites owned, operated or maintained, directly or indirectly, by eSUB and its affiliated companies (together, the "eSUB Sites"), (ii) mobile applications, and (iii) related software, applications, features, data, content, products, and services, which may include services offered by third parties to provide services to their customers including you (collectively, the "eSUB Service" or "eSUB Services"). 
2. Agreement to Be Bound; Termination 

   1. PLEASE READ THESE USER TERMS AND CONDITIONS (THE "TERMS OF USE") CAREFULLY BEFORE USING THE eSUB SERVICE. YOUR ACCESS TO AND USE OF THE eSUB SERVICE IS SUBJECT TO THESE TERMS OF USE, AND COMPLETING THE USER ACCOUNT REGISTRATION PROCESS, BROWSING THE eSUB SITES, INCLUDING DOWNLOADING THE MOBILE APPLICATION, OR OTHERWISE USING THE eSUB SERVICE, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH eSUB, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY. THESE TERMS OF USE IMPOSE A BINDING LEGAL OBLIGATION UPON YOU AND eSUB. 

      These Terms of Use will continue in full force and effect for as long as you use the eSUB Service. eSUB reserves the right to change these Terms of Use or any part of the eSUB Service at any time. Although eSUB may include a notice on the eSUB website or within the eSUB Service that the Terms of Use have been modified, such notice may not remain in place for  any extended period of time. Accordingly, you should review the Terms of Use, as posted on the eSUB Service, from time to time. To the fullest extent permitted under all applicable laws, rules, regulations and requirements (collectively, "Applicable Laws"), your continued use of the eSUB Service after any revised Terms of Use have been posted constitutes your acceptance of the revised Terms of Use. 

      In addition to these Terms of Use, eSUB has entered into a Master Services Agreement with the company or other entity that has granted you access to the eSUB Service. If there is a conflict between these Terms of Use and such Master Services Agreement, then the terms and conditions in the Master Services Agreement will control and take precedence. 

      eSUB reserves the right to suspend or terminate your access to the eSUB Service in its sole discretion without notice, including for example, if eSUB reasonably believes that you have violated these Terms of Use. 

      In the event of any termination, whether by you or us, Sections 1, 2, 4, 7 - 10, of these Terms of Use will continue in full force and effect. You agree that eSUB shall not be liable to you for any suspension, discontinuance, termination, change or modification of your use of or access to the eSUB Service. 

3. User Accounts 

   1. You are responsible for maintaining the confidentiality of your eSUB account password. You are also responsible for all activities that occur in connection with your eSUB account. You agree to notify us immediately of any unauthorized use of your eSUB account. We reserve the right to close your eSUB account for any reason. 

      If you register as an eSUB account User, you: 

      • must not allow any unauthorized person or third party to access the eSUB Service using the email address or username you provided during the registration process ("Log-in ID") and password; 
      • are prohibited from using anyone else's Log-in ID and password to access the eSUB Service; 
      • are responsible for any use of the eSUB Service by any unauthorized person or third party who accesses the eSUB Service using your Log-in ID and/or password; and 
      • will notify eSUB immediately if you suspect any unauthorized use of the eSUB Service or of your Log-in ID and/or password. 
4. License, Ownership and Use of the Service and eSUB Proprietary Material 

   1. You may only use the eSUB Service in accordance with these Terms of Use and solely for its intended purpose. All rights not expressly granted to you by these Terms of Use are hereby reserved by eSUB. As between eSUB and you, except for User Data (as defined below), eSUB is the sole owner of all content on the eSUB Service, including, without limitation, all applicable patents, trademarks, copyrights, trade secrets, trade names, logos, and other intellectual property rights thereto, as well as text, images, graphics, logos, typefaces, icons, audio, video and software and other material appearing on the eSUB Service ("eSUB Proprietary Material"). 

      Except as otherwise provided in these Terms of Use, you may not use, publish, reproduce, display, create derivative works from, reverse engineer or decompile, distribute, copy, post, upload, transmit or modify the eSUB Proprietary Material or any portion thereof, for any purpose. You may download, print and store selected portions of the eSUB Proprietary Material, provided you (1) only use these copies consistent with and in furtherance of the eSUB Service, (2) do not copy or post eSUB Proprietary Material on any network computer or broadcast the Proprietary Material in any media, and (3) do not modify or alter the eSUB Proprietary Material in any way, or delete or change any copyright or trademark notice. Modification of the materials appearing on the eSUB Service or use of such materials for any other purpose is a violation of eSUB's copyright and other proprietary rights. 

      In addition, you may not rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the eSUB Service or any portion thereof. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the eSUB Service or any portion thereof, and you may not take any action that imposes an unreasonable or disproportionately large burden on the eSUB Service, as determined by eSUB in its sole discretion. 

      You understand that the eSUB Service is constantly evolving. As a result, eSUB may require you to accept updates to  software that you have installed on your computer or mobile device. 

      You, or the entity that set up your User account, must provide all equipment and software necessary to connect to the eSUB Services, including but not limited to, a mobile device that is suitable to connect with and use eSUB Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the eSUB Services. 

5. Privacy 
   1. For information on how eSUB uses and protects your personal information you may provide on the eSUB Service (if any), please read the eSUB Privacy Policy, https://eSUB.com/privacy-policy. The Privacy Policy is incorporated into these Terms of Use and explains eSUB's privacy practices. By using the eSUB Service, you agree to the terms of the Privacy Policy. 
6. User Code of Conduct 

   1. In using or accessing the eSUB Service, you agree, without limitation: 

      • not to use the eSUB Service in breach of these Terms of Use; 
      • not to disrupt or interfere with the security of, or otherwise abuse, the eSUB Service, or any part of the eSUB Service; 
      • not to interfere or disrupt the eSUB Service or servers or networks connected to the eSUB Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature; and 
      • not to attempt to obtain unauthorized access to the eSUB Service or portions of the eSUB Service that are restricted from general access. 
7. User Data 

   1. Certain portions of the eSUB Service permit or require you to submit, post, transmit or upload content created by you or which you have the right to use and submit or post ("User Data"). User Data may include, without limitation, photographs, information, text, images, graphics, video, comments, suggestions, and communications with other Service users. 

      In connection with User Data, you agree that you will not submit User Data that: 

      • includes material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights (including, without limitation, trademark, privacy and publicity rights) unless you are the owner of such rights or you have all necessary rights to do so and to grant the Licensed Parties (as defined below) the rights set forth in these Terms of Use; 
      • includes any material that by itself, or by its use as permitted in these Terms of Use, infringes upon, misappropriates or violates the rights of any person or entity or any Applicable Laws; and 
      • are unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, harmful to minors, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate. 

      All User Data will be confidential. eSUB may use User Data in order to provide and enhance the eSUB Service or to develop new service offerings. 

      The Licensed Parties expressly disclaim any responsibility for User Data. You represent and warrant that neither the User Data, nor the Use of the User Data as permitted in these Terms of Use, will infringe upon, misappropriate or violate the intellectual property, privacy, publicity, statutory, contractual, personal or other rights of any person or entity or any Applicable Laws, and that you have obtained all necessary rights for the grants to the Licensed Parties, including without limitation, written releases of  all rights of privacy and publicity from all individuals included in any way in the  User Data. All User Data must comply with the User Code of Conduct set forth above. 

      eSUB will fully cooperate with any law enforcement authorities or court order requesting or directing eSUB to disclose the identity of anyone posting User Data that violate these Terms of Use or any law or regulation. eSUB may also disclose such information if it has a good faith belief that such disclosure is reasonably necessary to protect the rights, property, or personal safety of eSUB, its customers or the public. 

      eSUB may access, preserve and share your information in response to a legal request (like a search warrant, court order or subpoena) if eSUB has a good faith belief that the law requires us to do so. We may also access, preserve and share information when eSUB has a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; and to prevent death or imminent bodily harm. Information we receive about you may be accessed, processed and retained for an extended period of time when it is the subject of a legal request or obligation, governmental investigation, or investigations concerning possible violations of our terms or policies, or otherwise to prevent harm. 

      You agree that submission of any ideas, suggestions, documents, and/or proposals to eSUB through any suggestion, feedback, wiki, forum or similar pages or otherwise ("Feedback") is at your own risk and that eSUB has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to eSUB a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance eSUB Service. 

8. Indemnification 

   1. You agree to defend, indemnify and hold eSUB, and its affiliates, employees and third party contractors, harmless from and against any and all claims, actions or proceedings of any kind and from any and all damages, judgments, losses, liabilities, costs and expenses, including reasonable attorney's fees and expenses (including any incurred in enforcement of this provision), relating to or arising out of your breach or alleged breach of these Terms of Use, your violation of Applicable Laws, or your violation of any rights of another person or entity. 

9. Severability 

   1. If any provision of these Terms of Use shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. 

10. No Waiver 
    1. No failure on the part of eSUB to enforce any part of these Terms of Use shall constitute a waiver of any of eSUB's rights under these Terms of Use whether for past or future actions by any person.