Terms Of Service

RECITALS

A.Visto operates the Visto Services and provides access to its customers; and

B.Customer desires to access and use the Visto Services for itself or its clients, and Visto is willing to provide such access, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.DEFINITIONS.

(a)“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Visto Services, including, without limitation, any usage data or trends with respect to the Visto Services.

(b)“Authorized User” means an employee or contractor whom Customer has authorized to Use the Visto Services.

(c)“Visto IP” means the Visto Services, the underlying software provided in conjunction with the Visto Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Visto Services, Documentation, Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(d)“Customer Materials” means all information, data, prompts, content and other materials, in any form or medium, that are submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Visto Services or to Visto in connection with Customer’s Use of the Visto Services (i.e., including Customer’s website content, key words competitors, brands, products, and other topics or information linked to Customer’s dashboard or otherwise provided through Visto questionnaires and also including Customer’s Clients’ information, data, prompts, content and other materials) but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Visto and made available through or in connection with the Visto Services.

(e)“Documentation” means the training materials, specifications, minimum system configuration requirements, compatible device list and other similar materials in hard copy or electronic form if and as provided by Visto to Customer (including any revised versions thereof) relating to the Visto Services, which may be updated from time to time upon notice to Customer.

(f)“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(g)“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Visto Services or other limitations based on Customer’s tier and prompts tracked.

(h)“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Visto in writing; or (iii) quote issued by Visto and accepted by Customer, in each case which references this Agreement and sets forth the applicable Visto Services to be provided by Visto.

(i)“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(j)“Visto Services” means cross-platform monitoring, competitive analysis, sentiment tracking, content audit, and content optimization, and alert services provided by Visto via the Customer dashboard, as more particularly described or identified in the applicable Order Form.

(k)“Use” means to use and/or access the Visto Services in accordance with this Agreement and the Documentation.

2.VISTO SERVICES; ACCESS AND USE.

(a)Visto Services. Subject to the terms and conditions of this Agreement, Visto hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right to Use the Visto Services during the Term, solely for Customer’s and Customer’s clients on whose behalf Customer is accessing and using the Services (“Clients”) business purposes in accordance with, and subject to, the Licensed Volume. Notwithstanding anything to the contrary under this Agreement, Visto has no contractual privity with such Clients.

(b)Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Visto Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Visto Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Visto Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Visto Services to any other Person, or otherwise allow any Person to use the Visto Services for any purpose other than for the benefit of Customer (and Customer’s clients) in accordance with this Agreement; (v) use the Visto Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Visto Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Visto Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Visto Services features provided by Visto for use expressly for such purposes; or (viii) use the Visto Services, Documentation or any other Visto Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Visto Services.

‍(c)Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Visto Services. Customer may permit Authorized Users to Use the Visto Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Visto Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Visto Services in accordance with customary security protocols, and will promptly notify Visto if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Visto Services may only be accessed and used by the specific Authorized User for whom such account is created.

(d) Third-Party Visto Services. Certain features and functionalities within the Visto Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. Visto does not provide any aspect of the Third-Party Visto Services and is not responsible for any compatibility issues, errors or bugs in the Visto Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Visto Services.

(e)Reservation of Rights. Subject to the limited rights expressly granted hereunder, Visto reserves and, as between the Parties will solely own, the Visto IP and all rights, title and interest in and to the Visto IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(f)Feedback. From time to time Customer or its employees, contractors, clients, or representatives may provide Visto with suggestions, comments, feedback or the like with regard to the Visto Services (collectively, “Feedback”). Customer hereby grants Visto a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Visto’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Visto Services.

3.FEES AND PAYMENT.

(a)Fees. Customer will pay Visto the fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”).

(b)Payments. Payments due to Visto under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Visto or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Visto may suspend Visto Services until all payments are made in full. Customer will reimburse Visto for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

(c)Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Visto hereunder, other than any taxes imposed on Visto’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Visto hereunder, Customer will pay an additional amount, so that Visto receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

4.CONFIDENTIAL INFORMATION.

(a)Definitions. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in this Agreement will limit or restrict Visto’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Visto or its personnel acquire or obtain in connection with the performance of Visto’s obligations hereunder.

(b)Obligations and Permitted Disclosures. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Visto may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

‍(c)Duration. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(d)Disclosure for Due Diligence. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

5.SUPPORT.

‍Visto will provide reasonable technical support to Customer by electronic mail and/or phone in connection with its Use of the Visto Services on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Pacific Time, with the exception of U.S. federal holidays.

6.CUSTOMER MATERIALS AND DATA.

(a)Customer Materials. Visto acknowledges that, as between Customer and Visto and except as set forth in Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials or has all applicable rights to the Customer Materials to grant the license to Visto pursuant to Section 6(a).

(b)License. Customer hereby grants Visto a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Visto Services (including developing Output) and Visto’s other related products, Visto Services and technologies during the Term.

(c)Rights and Compliance. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy notice, or the privacy notice of applicable Clients) as contemplated by this Agreement and (ii) Visto’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party, or between applicable Clients and any third party.

(d)Input and Output. Certain features of the Visto Services may generate content, key words, reports, analysis, advice, analytics, documentation through Visto or its third-party licensors’ algorithms or artificial intelligence tools used in connection with providing the Visto Services (each “Output”) in response to (i) Customer’s interaction with the Visto Services; and (ii) Customer Materials uploaded to influence the behavior or Output of the Visto Services (collectively, “Input”). As between the Parties, to the extent permitted by applicable law, Customer owns all Input provided by Customer and, subject to Customer’s rights to any Customer Materials incorporated in any Output, Visto owns the Output generated in response to Customer’s Input. Visto hereby grants Customer and a non-exclusive, worldwide, sub-licensable, royalty-free right and license to use, reproduce, display, and modify such Output for Customer’s and applicable Clients’ business purposes.

‍7.REPRESENTATIONS AND WARRANTIES.

Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

8.INDEMNIFICATION.

(a)Visto Indemnification. Subject to Section 8(b), Visto will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Visto Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Visto (including reasonable attorneys’ fees) resulting from such Claim.

(b)Exclusions. Visto’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials or any Output; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Visto Services that have been provided by Visto; (iv) modifications to the Visto Services by anyone other than Visto; or (v) combinations of the Visto Services with software, data or materials not provided by Visto.

(c)IP Remedies. If Visto reasonably believes the Visto Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Visto may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Visto Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Visto determines that neither alternative is commercially practicable, Visto may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Visto will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Visto Services.

(d)Customer Indemnification. Customer will defend Visto against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s or applicable Clients’ products or services; and (iii) Use of the Visto Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b), and in each case, will indemnify and hold harmless Visto against any damages and costs awarded against Visto or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

(e)Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

9.VISTO SERVICES WARRANTY; DISCLAIMERS.

(a)Visto Services. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE VISTO SERVICES AND OTHER VISTO IP ARE PROVIDED ON AN “AS IS” BASIS, AND VISTO MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE VISTO IP, THE VISTO SERVICES OR ANY OTHER VISTO SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VISTO HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, VISTO HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE VISTO SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

(b)Artificial Intelligence Disclaimer. DUE TO THE NATURE OF MACHINE LEARNING, OUTPUT MAY NOT BE UNIQUE AND THE VISTO SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR CUSTOMER, CLIENT OR A THIRD PARTY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE VISTO SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE, OR IT MAY HALLUCINATE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT MAY BE DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, VISTO WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM INPUT OR THE USE OF OUTPUT.

‍10.LIMITATIONS OF LIABILITY.

(a)Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE VISTO SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE VISTO IP OR THE PROVISION OF THE VISTO SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(b)Total Liability. IN NO EVENT WILL VISTO’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE VISTO IP OR THE PROVISION OF THE VISTO SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO VISTO IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY VISTO TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT VISTO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(c)Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN VISTO AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

11.TERM AND TERMINATION.

(a)Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.

(b)Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

(c)Survival. This Section 11(c) and Sections 1, 2(b), 2(c), 2(f), 3, 4, 6, 7, 8, 9, 10, 11(d) and 13 survive any termination or expiration of this Agreement.

(d)Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Visto’s sole option, all Visto Confidential Information in its possession or control, including permanent removal of such Visto Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Visto’s request, certify in writing to Visto that the Visto Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

12.TRADEMARKS.

Customer hereby grants Visto a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Visto Services; and (ii) Visto’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Visto and in case studies. All goodwill and improved reputation generated by Visto’s use of the Customer Marks inures to the exclusive benefit of Customer. Visto will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

13.GENERAL.

(a)Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

(b)Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth below or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 13(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

(c)Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

‍(d)Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

(e)Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.

(f)Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

(g)Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(h)Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

(i)Subcontracting. Visto may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Visto remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Visto will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Visto.

(j)Export Regulation. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Visto Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.

(k)U.S. Government End Users. The Visto Services, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Visto Services, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Visto Services, software and Documentation.

(l)Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

(m)No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.

(n)Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.