Onclusive, Inc.

Software SUBSCRIPTION Agreement

This ONCLUSIVE, INC. software Subscription Agreement (“Agreement”) is entered into as of the (“Effective Date”) between Onclusive, Inc., a Delaware corporation with offices at 1870 Ogden Drive, Burlingame, CA 94010 (“Onclusive”), and the customer specified in the Order Form (“Customer”), effective as of the date of the Order Form. By signing an Order Form, or accessing or using any Onclusive Service, Customer signifies that Customer has read, understood and agrees to be bound by these terms and conditions. In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as follows:

WHEREAS, Onclusive offers an earned media measurement service (as further defined below, the “Service”) to capture, collect, organize and report on post-click user engagement, and sentiment of earned content that Customer promotes (defined below); and

WHEREAS, Customer desires to subscribe to the Service on the terms set forth in the initial SOW (defined below) attached hereto;

IT IS AGREED, in consideration of each party’s covenants herein, as follows:

1. Definitions. For the purposes of this Agreement, the following terms shall have the corresponding definitions:

1.1  “Customer” means only Customer and the affiliates identified on Appendix I attached hereto and incorporated herein by this reference; this Agreement expressly excludes the Customer’s parent company and all Customer affiliates not listed on Appendix I.

1.2  “Customer Data” means any data or other material submitted by Customer pursuant to the Subscription or otherwise provided by Customer to Onclusive for the performance of the Subscription.

1.2  “Customer Reports” means any structured data reports generated by the Service from the earned media consumption data that has been captured and put into the Service via Onclusive’s measurement technology.

1.3  “SOW” means a Statement of Work signed by the Customer and Onclusive, attached hereto and incorporated herein as Exhibit A, that sets forth the terms of Customer’s Subscription (defined below) to the Service, the Subscription Term and/or, if applicable, related professional services to be provided by Onclusive in connection with the Subscription. If there is any conflict between this Agreement and the SOW, this Agreement will govern and control.

1.4  “Service” means Onclusive’s earned media measurement service that tracks, measures and captures post-click user-engagement data, of earned content that Customer shares and promotes.

1.5  “Subscription” means the subscription to the Service purchased by Customer hereunder as set forth in the executed SOW.

1.6  “Subscription Term” means the term of the Subscription purchased by Customer hereunder, commencing on the start date of such Subscription as set forth in the SOW. The term of this Agreement (the “Term”) will run concurrently with the Subscription Term.

1.7  “User” means any Customer employee authorized by Customer to use the Service pursuant to a Subscription purchased by Customer who has been supplied a user login and password by Onclusive at Customer’s request and who has accessed the Service at least once.

2. Subscription to the Service. Customer will purchase its Subscription on the terms set forth in the SOW and Onclusive will make the Service available to Customer in accordance with this Section 2 and the SOW terms. Subject to the terms of this Agreement and the SOW, Onclusive hereby grants to Customer and its Users a nonexclusive, nontransferable, non-sublicenseable and limited license to, during the Subscription Term: (i) access and use the Service; and (ii) use, reproduce, display and distribute the Customer Reports and the data and other information therein, all solely for Customer’s business purposes.

Promptly following the Effective Date, Onclusive will provide Customer with a unique account identification number (“Account ID”) for its Subscription. Customer will ensure that only its Users will be permitted to access and use Customer’s Subscription via their respective logins and passwords issued by Onclusive at Customer’s request. At the end of the Subscription Term, except as otherwise agreed by the parties at the end of the Subscription Term, Customer and its Users will cease all use of and access to the Subscription.

Onclusive will provide administration of Customer’s User base and may replace one User with another at Customer’s Request and at its discretion. Onclusive will approve each User registration and will log and track Users’ IP addresses to ensure each User’s and Customer’s compliance with the terms herein.

Customer acknowledges and agrees that the Service will be resident, at Onclusive’s sole option, on Onclusive’s servers, servers maintained by third party hosting services providers and/or data centers selected by Onclusive and under contract therewith As between Customer and Onclusive, Onclusive will not be responsible for the acts and omissions of such third party providers with respect to the Service provided to Customer and all its Users hereunder.

Customer also acknowledges and agrees that Onclusive’s service is currently able to measure post-click consumer engagement for many sites but not all sites. For all sites that Onclusive does not currently measure, but that Customer alerts Onclusive to, Onclusive will make every attempt and effort to apply the Service to measure such sites. Customer expressly acknowledges that Onclusive makes no guarantee that it can or will be able to track such sites, and any inability by Onclusive to track any such sites will not be considered a breach of this Agreement.

3. Customer Restrictions.

Customer is responsible for all activities conducted under its User logins and passwords and for each of its Users’ compliance with this Agreement. Customer’s rights to access and use the Service hereunder do not include (i) service bureau or other time-sharing use of the Service, (ii) Customer’s outsourcing, leasing, resale or sublicensing of the Service to a third party or (iii) the concurrent use of a single login by more than one User. Customer will not permit any third party to: (a) copy, create a derivative work of, reverse engineer or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form; (b) use unauthorized modified versions of the Service, including for purposes of building a competitive product or service or obtaining unauthorized access to the Service; or (c) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.

  • No part of the Service may be reproduced, disclosed, distributed, displayed, downloaded, modified, posted, sold, transferred or transmitted in any form or by any means by or on behalf of Customer. Customer will not access the Service by any means other than through the user interface provided by Onclusive. Customer will not do any “mirroring” or “framing” of any part of the Service or create Internet links to the Service that include login information, user names, passwords and/or secure cookies. Customer will ensure that all access and use of the Service by its Users is in accordance with the terms and conditions of this Agreement. Any action or breach by any User will be deemed an action or breach by Customer and Customer will be fully responsible for any such breach.

Customer shall not otherwise: (i) rent, lease, lend, sell, or otherwise make the Hosted Services available to any third party, except as expressly permitted by this Agreement; (ii) use or authorize the use of the Services or Documentation in any manner or for any purpose that is unlawful under applicable law; (iii) decompile, disassemble, or reverse engineer the Service Software; (iv) use the Service Software or any Provider Confidential Information (as such term is defined herein) to develop a competing product or service; or (v) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Service Software (including any screen displays, etc.) or any other products or materials provided by Provider hereunder. Under no circumstances, shall Provider be liable or responsible for any unauthorized use, or any results obtained by such unauthorized use, of the Service Software in conjunction with any other software or third party products. All such unauthorized use shall be at Customer’s sole risk.

4. Fees, Payments and Taxes.

4.1   Fees and Payment Terms. During the Subscription Term, Customer will pay Onclusive the applicable Subscription fee (the “Subscription Fee”) set forth in the SOW on the terms set forth therein. If and when Customer adds additional Users, purchases additional features of the Service or requests additional professional services, including platform development or customizations, the applicable Subscription Fee or other fees will be set forth in a new SOW that will be signed by both parties, attached to this Agreement and incorporated herein. All fees will be paid in United States Dollars.

4.2  Invoices. Onclusive may choose to bill through an invoice. If Onclusive bills through an invoice, full payment for invoices issued in any given month must be received by Onclusive no later than thirty (30) days after the mailing date of the invoice, unless otherwise indicated in the relevant invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by applicable law, if such amount is less, plus all expenses of collection, and may result in immediate termination of Service.

4.3  Taxes. Onclusive’s Subscription Fees and any other fees that may be charged by Onclusive hereunder exclude any value-added, sales or use, Internet-related or other taxes or government charges that may be assessed against Customer’s use of the Service (collectively, “Taxes”) and, except as set forth in the next sentence, Customer will pay all Taxes related in any manner to the Subscription. If Onclusive is legally obligated to pay or collect Taxes for which Customer is responsible under this Section 4.2, the appropriate amount will be invoiced by Onclusive and paid by Customer unless Customer provides Onclusive with a valid tax exemption certificate.

5. Confidentiality; Proprietary Rights.

5.1  Confidentiality. For purposes of this Agreement, “Confidential Information” will include the terms of this Agreement, each party’s proprietary technology and other proprietary information and any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information will not include any other information that: (i) is already lawfully in recipient’s possession (unless received pursuant to another nondisclosure agreement with disclosing party); (ii) becomes generally available to the public through no fault or breach of recipient or breach of any other obligation of confidentiality owed by recipient to the disclosing party; (iii) is disclosed to recipient by a third party who may transfer or disclose such Confidential Information without restriction; (iv) is required to be disclosed by recipient as a matter of law or judicial or governmental mandate; provided that recipient will use all reasonable efforts to provide the disclosing party with an opportunity to appear and object to such disclosure; (v) is disclosed by recipient with the disclosing party’s approval; or (vi) is independently developed by recipient without any use of the disclosing party’s Confidential Information.

Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise its rights under this Agreement; (c) to protect the confidentiality of the Confidential Information in the same manner as the party protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care) and to make Confidential Information available to authorized persons only on a “need to know” basis; provided that each such person is bound in writing to fulfill recipient’s obligations under this Section 5.

On the termination or expiration of this Agreement, the recipient will promptly deliver to the disclosing party or, at the disclosing party’s option, destroy, all materials containing the disclosing party’s Confidential Information and will not retain any copies thereof.

5.2  Proprietary Data. Customer shall own all right, title and interest in and to the Customer Data.  Onclusive shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

5.3  Onclusive’s Use of Customer Data. Notwithstanding anything to the contrary, Onclusive shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Onclusive will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Onclusive offerings; and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

Customer is solely responsible for the content of all Customer Data submitted to the Service, including any User data. Customer will only submit Customer Data which it believes is accurate and up-to-date. Customer represents, and warrants to Onclusive, that Customer: (i) has sufficient rights in all Customer Data to hold the Customer Data and deliver it to Onclusive as required for the Service to be performed under this Agreement; (ii) has obtained from all individuals, persons and third parties any required consents and authorizations, and has provided all required notices with respect to the collection, retention, disclosure and use of the Customer Data as contemplated for the purposes of this Agreement that are required under any foreign, federal and state laws and regulations, including but not limited to privacy rules and policies; and (iii) will only provide to Onclusive Customer Data that (a) does not infringe or violate any intellectual property rights, publicity, privacy, confidentiality or other rights, or any foreign, federal, state or local law or regulation, or (b) is not defamatory, offensive, misleading, false, harmful to minors, or obscene. In order to provide the Services, Onclusive reserves the right to transmit or access Customer Data to or from any location or locations worldwide. Onclusive will not use or process Customer Data except to perform and provide the Services and for the purposes authorized in this Agreement.

5.4  Customer Marks. Customer hereby grants Onclusive a nonexclusive license to use, reproduce and display Customer’s trademarks, service marks and logos (collectively, the “Customer Marks”) in the format provided by Customer and solely on the Service and in the performance of Onclusive’s obligations hereunder. Onclusive will not have any right, title or interest in the Customer Marks, which will remain Customer’s sole and exclusive property, and Onclusive will not take any action that would in any way infringe or interfere with Customer’s rights in and to the Customer Marks.

6.   Term, Suspension and Termination.

6.1   Term. The Term of this Agreement will commence on the Effective Date and continue until the end of the Subscription Term set forth in the SOW unless terminated at an earlier date as set forth in the SOW or Sections 6.3 or 11.6.

6.2   Suspension for Delinquent Account. Onclusive may suspend Customer’s and its Users’ access to and use of the Service for nonpayment of the Subscription Fee or any other fees due hereunder if Customer fails to pay any invoice within 30 days of receipt. Onclusive will not be liable to Customer or to any User or other third party for any suspension of the Service pursuant to this Section 6.2.

6.3   Termination for Cause. Either party may terminate this Agreement and the SOW if the other party materially breaches any provision of this Agreement that is not cured within 30 days of written notice from the non-breaching party.

6.4   Effect of Termination. On the termination or expiration of this Agreement and SOW for any reason, subject to and in accordance with the terms set forth in the SOW, including Customer’s one-time right of early termination at the end of the Pilot Period (as defined in the SOW) without financial obligation, Customer must cease all access to and use of the Service, the Customer Reports and the data and other information set forth. Notwithstanding the foregoing, if Customer terminates this Agreement and SOW on Onclusive’s uncured material breach or a continuing force majeure event affecting Onclusive under Section 11.6 below, Customer will only be obligated to remit to Onclusive all fees, including Subscription Fees, due and owing through the termination date and Onclusive will refund to Customer all prepaid and unused Subscription Fees and other prepaid and unused fees, if any.

On termination or expiration of the Agreement and SOW, Onclusive will immediately deactivate Customer’s account and may delete Customer’s account from the Service. As noted above, following such termination or expiration, Customer must cease all use of the Customer Reports and the data and other information set forth therein.

7.   Onclusive Warranties and Covenants.

7.1   Warranty of Functionality. Onclusive warrants that the Service: (i) will achieve in all material respects the functionality described in the SOW; and (ii) such functionality will not be materially decreased during the Term. Customer’s sole and exclusive remedy for Onclusive’s breach of this warranty will be for Onclusive to use commercially reasonable efforts to modify the Service to achieve in all material respects such functionality and, if Onclusive is unable to restore such functionality, Customer will be entitled to terminate the Agreement and receive a refund of prepaid and unused Subscription Fees or other fees, if any, paid under the Agreement.

7.2   No Virus Warranty. Onclusive warrants that the Service will be free of viruses, Trojan horses, worms, spyware or other such malicious code (“Malicious Code”), excluding any Malicious Code originating from Customer or any of its Users. If any Malicious Code is discovered or reasonably suspected to be present in the Service at any time during the Term, Onclusive will use commercially reasonable efforts as determined by Onclusive in its sole discretion to identify and eradicate such Malicious Code and to carry out any recovery reasonably necessary to remedy or mitigate any impact of such Malicious Code.

7.3  Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS SECTION 7, ONCLUSIVE DOES NOT REPRESENT THAT (I) CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (II) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, (III) ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR (IV) THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING THE INTERNET, OTHER TRANSMISSION NETWORKS AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ONCLUSIVE EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION. THE WARRANTIES STATED IN SECTION 8 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ONCLUSIVE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS SET FORTH IN THIS SECTION 8, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND IS FOR COMMERCIAL USE ONLY.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ONCLUSIVE will NOT BE LIABLE for the unavailability OR INOPERABILITY of the SERVICE caused by THE acts or omissions OF ONCLUSIVE, CUSTOMER, ANY USER OR ANY OTHER THIRD PARTY, NOR WILL ONCLUSIVE BE LIABLE IN ANY WAY FOR any loss of data suffered BY CUSTOMER, ANY UsER OR any OTHER party, WHETHER resulting from delays, non-deliveries, mis-deliveries or service interruptions caused by ANY PARTY.

7.4   Onclusive Support. As part of the Service, Onclusive will provide Customer with online support to assist Customer in its use of the Service as set forth in the SOW.

7.5   Enhancements; Third Party Data. Subject to the terms of this Section 7.5, Onclusive may modify or enhance the Service or particular components thereof at any time and will notify Customer of all such enhancements in accordance with its standard notification process for all customers. However, if a particular modification or enhancement constitutes, at Onclusive’s sole and absolute discretion, a new functionality and/or new and unique Service or Feature, Onclusive reserves the right to offer such enhancement to Customer and its other customers for an additional fee.

On Customer’s request and at Customer’s expense, Onclusive may incorporate third party data into the Service on terms to be set forth in a separate SOW under this Agreement. Onclusive will not be responsible or liable for the quality, accuracy, integrity, reliability, legality or any other aspect of any such third party data that Customer may purchase from Onclusive and/or receive via the Service.

8.   Limitation of Liability.

8.1  EXCEPT FOR DAMAGES ARISING OUT OF: (i) A PARTY’S WILLFUL OR NEGLIGENT BREACH OF SECTION 5 (CONFIDENTIALITY; PROPRIETARY RIGHTS); (ii) A PARTY’S WILLFUL OR NEGLIGENT INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (iii) ANY THIRD PARTY CLAIM SUBJECT TO INDEMNIFICATION BY A PARTY UNDER SECTION 10 BELOW; AND/OR (iv) PAYMENTS DUE IN THE ORDINARY COURSE UNDER THE SOW, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA OR COST OF PROCUREMENT OF A SUBSTITUTE SERVICE, ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY SOW AND (B) EACH PARTY’S LIABILITY IN CONNECTION WITH ANY CLAIM UNDER THIS AGREEMENT OR ANY SOW, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE SUBSCRIPTION FEES PAID AND/OR DUE AND OWING TO ONCLUSIVE BY CUSTOMER AS OF THE DATE SUCH CLAIM ACCRUED.

9.   Indemnification.

9.1  Onclusive’s Indemnity. Onclusive will defend, indemnify and hold harmless Customer and its directors, officers, employees and agents from and against any claims, suits, damages, liabilities and costs finally awarded against Customer or entered into in settlement (including reasonable attorneys’ fees incurred by Onclusive arising out of a claim or action brought by a third party (each, a “Third Party Claim”) to the extent that the action is based upon or related to (i) a claim that the Service infringes or violates the trademark, copyright, patent or other intellectual property rights or right of privacy or publicity of any third party and/or (ii) Onclusive’s negligence or willful misconduct.

If any portion of the Service becomes, or in Onclusive’s opinion is likely to become, the subject of a Third Party Claim of infringement, Onclusive, at Onclusive’s sole and absolute option, may: (i) procure for Customer the right to continue using its Subscription; (ii) replace the Service with a non-infringing equivalent; (iii) modify the Service so that it becomes non-infringing; or (iv) terminate the Subscription.  Notwithstanding the foregoing, Onclusive will have no obligation under this Section or otherwise with respect to any Third Party Claim of infringement to the extent arising out of Customer’s negligence or misconduct, including its unauthorized use of the Service. This Section 9.1 states Onclusive’s entire liability and Customer’s sole and exclusive remedy for Third Party Claims of infringement.

9.2  Customer’s Indemnity. Customer will defend, indemnify and hold harmless Onclusive and its directors, officers, employees and agents from and against any Third Party Claim to the extent arising out of Customer’s negligence or willful misconduct. This Section 9.2 states Customer’s entire liability and Onclusive’s sole and exclusive remedy for Third Party Claims of infringement.

9.3  Indemnification Procedures. Each party’s indemnification obligations under this Section 9 are subject to the following: the indemnified party will: (i) promptly notify the indemnifying party in writing of such Third Party Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, in the investigation and defense of such Third Party Claim and any appeal arising therefrom. The indemnifying party will not be responsible for any costs incurred or compromise made by the indemnified party without the indemnifying party’s prior written consent. The indemnifying party may not enter into any settlement that imposes a financial obligation on or otherwise adversely impacts the indemnified party without the indemnified party’s prior written consent.

10.   General.

10.1  Subject to the terms set forth in this Section 10.1, this Agreement will inure to the benefit of and bind each of the parties hereto and their respective successors and assigns. Excluding any assignment by Customer to a competitor of Onclusive, either party may assign this Agreement in its entirety without written consent of the other party to a related entity and/or the successor of all or substantially all of the assignor’s business operations or assets to which this Agreement relates. Any other assignment of this Agreement, including to a competitor of Onclusive, requires the non-assigning party’s prior written consent. There are no third party beneficiaries to this Agreement.

10.2 This Agreement, including the SOW, and any amended or supplemental SOW to be attached and incorporated to the Agreement, : (i) embodies the final, complete exclusive and entire agreement between the parties with respect to Customer’s subscription to Onclusive; (ii) replaces and supersedes all previous oral or written agreements, understandings or arrangements between the parties with respect thereto; (iii) may be signed in counterparts, each of which will be an original and both of which will constitute one and the same document; and (iv) may only be amended in a writing signed by each party to this Agreement.  The failure of either party to enforce a provision of this Agreement will not be deemed a waiver of such provision or of the right of such party thereafter to enforce such provision.  If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect and the parties will negotiate in good faith a substitute valid and enforceable provision that most nearly gives effect to the parties’ intent in entering into this Agreement. The parties are entering into this Agreement as independent parties and nothing herein will be deemed to create a joint venture, agency or employment relationship between the parties. Neither party is an agent of the other party and neither party may make any representation or commitment on behalf of the other party.

10.3 For use in any such agreed press releases and other public announcements hereunder as well as in either party’s marketing materials or on either party’s Website, on the reasonable request of a party hereto, subject to applicable laws and regulations, the other party will provide the requesting party with quotes from its senior executives, addressing the mutually beneficial nature of the parties’ commercial relationship hereunder.

Onclusive, at its option, may display Customer’s logo on its Website and use Customer’s name in describing or promoting the Service in Onclusive’s marketing materials.  Finally, as and when reasonably requested by Onclusive, Customer is willing to act as a reference customer of the Service and discuss its use of the Service and/or otherwise participate in Service-related case studies, webinars and webcasts and other Service-related media presentations and public forums.

10.4  This Agreement will be governed by and construed in accordance with the laws of the State of California and any controlling federal law, without reference to principles of conflict of laws, excluding the Uniform Computer Information Transactions Act. Each party consents to the exclusive jurisdiction of the state and federal courts in San Francisco, California in connection with any claim or action under this Agreement. In the event of any proceeding arising out of this Agreement, the prevailing party will be awarded its reasonable attorneys’ fees and/or costs.

10.5  Each party acknowledges that the other party may suffer irreparable harm on any unauthorized disclosure of such other party’s Confidential Information or misuse or misappropriation of such other party’s intellectual property.  On any such breach hereunder, the injured party may immediately seek equitable relief, including injunctive relief, in addition to any other remedies it may have at law or in equity.

10.6  Neither party will be liable for any failure to perform its obligations hereunder due to any force majeure event, including acts of God, governmental actions, fire, shortages, civil disturbances, transportation problems, terrorism, Internet service provider failures or delays, interruptions of power or communications, unauthorized network intrusions or denial of service attacks. If any force majeure event affects one party for more than 60 consecutive days, the other party may terminate the Agreement and SOW in accordance with Section 6.4 above.

10.7 Sections 5, 6.4, and 9 through 10 will survive the termination or expiration of this Agreement in accordance with their respective terms as will any outstanding payment or tax obligations or any cause of action or claim of either party, whether in law or in equity, accrued or to accrue because of any breach or default. IN WITNESS WHEREOF, each party has executed this Agreement, effective as of the Effective Date.