MASTER SUBSCRIPTION AGREEMENT

Effective Jan 1 2021

THIS Master Subscription Agreement (the “Agreement”) is effective as of the date of signature below, (the “Effective Date”), and is between the Company (“MentorCloud” or "We") and the Customer (""You"). The Company and the Customer are hereinafter sometimes referred to collectively as the “Parties” and singly as a “Party.”

WHEREAS, Company has developed a state of the art platform and service (collectively the “Platform and Services” and individually the “Platform” and the “Services”), which is more fully described in Exhibit B,

WHEREAS, Customer desires to use such Platform and Services for its core business purposes.


1. DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity, and to whom You wish to grant access to the Services. "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. Any Affiliates who will never be provided access to the Services by You are not included in this definition. 

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


"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms will specifically refer to this Agreement and shall be deemed incorporated herein by reference.


"Purchased Services" means the Services that You or Your Affiliates purchase under an Order Form.


Platform” means the MentorCloud cloud-based platform, servers, systems, and integrated software over which Company provides the Services to Customer and its Users. 


"Services" means the online, Web-based or mobile-based applications and services provided by Us via our Platform at mentorcloud.com and/or other designated websites that are configured and secured for you by Us, that are ordered by You under one or more Order Forms, including associated offline components, if any, but excluding third party applications.


"Third-Party Products and Services" means online, Web-based applications and/or services and offline products and/or services that are provided by third parties, may interoperate with the Services, and are identified as third-party products and services by Us.


"Users" means individuals who are authorized by You to access the Platform and to use the Services, for whom You have bought access to the Platform and the Services (or whom have paid You for such access) and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your Affiliates, employees, consultants, contractors, association members, and agents; or third parties (e.g. resellers, suppliers, vendors, third-parties and industry thought leaders) with whom You transact business.


"Customer Data" or “Your Data” means all electronic data or information submitted by You or your Users to access the Platform and to use the Services.


2. PURCHASED SERVICES


2.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during the Term. You agree that Your purchases hereunder are neither contingent on the delivery of any new functionality or features nor dependent on any oral or written public comments made by Us regarding new functionality or features.


2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form,

(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 subscription Term at the pricing listed in the Order Form, and

(iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users 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 Services. 


3. USE OF THE SERVICES


3.1 Our Responsibilities. We shall:

(i) provide to You basic support for the Purchased Services at no additional charge as specified in the relevant Order Forms,

(ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for:

  1.  planned downtime (of which We shall give at least 72 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. US Pacific time Friday to 3:00 a.m. U.S. Pacific time Monday), provided, however, that in no event will any planned downtime exceed ten (10) hours in any calendar month or
  2. any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and

(iii) provide the Purchased Services only in accordance with applicable laws and government regulations. We shall be solely responsible for the information technology infrastructure, including all computers, software, databases, electronic systems and networks used by or for Us in connection with the Platform and Services (“MentorCloud Systems”) and shall prevent unauthorized access to the Platform and Services through the MentorCloud Systems. 


3.2. Your Responsibilities. You shall

(i) be responsible for Users’ material compliance with this Agreement,

(ii) as between You and Us, be responsible for the accuracy, quality, and integrity of Your Data that is submitted and of the means by which You acquired Your Data, 

(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and

(iv) use the Services only in accordance with applicable laws and government regulations. You shall not

  1. make the Services available to anyone other than Users, 
  2. sell, resell, rent or lease the Services provided, however, you may charge your Users to access the Platform and use the Services, 
  3. use the Services 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, 
  4. use the Services to store or transmit Malicious Code, 
  5. interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or 
  6. attempt to gain unauthorized access to the Services or their related systems or networks. 

3.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations will be specified in the Order Form. 


4. THIRD-PARTY PROVIDERS


4.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Products and Services for sale or included in the Services purchased under Order Forms or directly on the Web. Any acquisition by You of third-party products or services, including but not limited to Third-Party Products and Services, any implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.


4.2. Interoperability with Third-Party Products and Services. Service features that interoperate with Third-Party Products and Services depend on the continuing availability of relevant API and programs for use with the Services.  If the providers of Third-Party Products and Services cease to make the relevant API or program available on reasonable terms for the Services, We may cease providing such Service features with 30 day prior notification to You. If the cessation of such Service features result in a reduction of overall functionality without a comparable replacement, at  Customer’s option,

(i) Company will refund Customer a pro-rata portion of prepaid fees associated with the discontinued features for which no comparable replacement was provided, or

(ii) Customer shall have the right to terminate this Agreement by providing Company written notice of termination and receive a pro-rated refund of prepaid fees covering the remainder of the Term of all subscriptions after the effective date of termination.


5. FEES AND PAYMENT FOR PURCHASED SERVICES


5.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form,

(i) fees are quoted and payable in United States dollars

(ii) fees are based on Services purchased and not actual usage, whether higher or lower,

(iii) payment obligations are non-cancelable and fees paid are non-refundable, and

(iv) the number of User subscriptions purchased cannot be changed during the relevant subscription Term stated on the Order Form unless agreed to in writing by the Parties. 


5.2. Invoicing and Payment.  We will invoice You in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due Net 30 days from the date of receipt of invoice. Our invoices will contain relevant instructions and information for You to make payments to Us. 


5.3. 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 1.0% of the outstanding balance per month, or the maximum rate permitted by U.S. law, whichever is lower, from the date such payment was due until the date paid.  Payment terms for existing orders cannot be changed.  


5.4. Suspension of Service. If any amount owed by You under this or any other agreement for Our services is more than 60 days overdue We may suspend Our services to You until such amounts are paid in full.  MentorCloud will provide written notification to the concerned signatory prior to suspending services.


5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.


5.6. Taxes. Unless otherwise stated, Our 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 We have 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 Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.


6. PROPRIETARY RIGHTS


6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Nothing herein grants to You any rights, title, or interest in the Platform or the Services, or the intellectual property associated therewith. 


6.2. Restrictions. You shall not

(i) permit any third party to access the Services except as permitted herein,

(ii) create derivate works based on the Services,

(iii) copy, frame or mirror any part or content of the Services,

(iv) reverse engineer the Services, or

(v) access the Platform Services in order to

  1. build a competitive product or service, or 
  2. copy any features, functions or graphics of the Services. As between You and We, You are fully responsible and liable for any damage resulting from or relating to the use (or misuse) of the Platform and the Services by your Users or others, who obtained the user name and password from a User (collectively “Visitors”). You agree to defend, indemnify, and hold Us and our Company Indemnitees harmless from any Claims made or brought against Us by a third party resulting from or relating to such use or misuse by your User of such user name or password. 

6.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data, Your Confidential Information and Your pre-existing intellectual property. You warrant and represent that you have permission of your Users for Us to process such Data for the purposes of providing access to the Platform and use of our Services. You agree to defend, indemnify, and hold Us harmless, from any Claims made or brought against Us by a third party resulting from or relating to your breach of this warranty and representation. 


6.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.


7. CONFIDENTIALITY


7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all 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 including any personal data pertaining to Your employees, agents, other third parties and any information input by You or Your Users into the Services environment, whether marked confidential or not; Our Confidential Information shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, 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 (other than Your Data) 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 without use of the Confidential Information.


7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party,

(i) the Receiving Party 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and

(ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have confidentiality obligations or signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.


7.3. Protection of Your Data.  Company shall process and hold personal data, including, but not limited to, any personal data that is associated with or could be reasonably connected to a particular consumer or household, in the strictest of confidence and shall only use such personal data for the performance of its Services under this Agreement and for no other purposes without the prior written consent of Customer.  Company shall comply with applicable data protection laws in connection with the processing of personal data and with the Payment Card Industry Data Security Standards, if applicable. Company shall provide reasonable assistance to Customer in connection with any data subject requests, subpoenas or other governmental, legal or regulatory inquiries or investigations.  If Company discovers or is notified of an actual, probable or reasonably suspected breach of security or any unauthorized access to or acquisition, use, loss, destruction, compromise, alteration or disclosure of any personal data processed by Company pursuant to this Agreement (“Data Breach”), Company shall notify Customer within 24 hours of such discovery or notification and investigate and mitigate, or if possible remediate, the effects of the Data Breach.  Company shall complete a privacy and security risk assessment as reasonably requested by Customer, which shall be updated annually or whenever significant changes are made to Company’s security controls.  Company will maintain logs, system records, and test plans and results related to Company’s compliance with this Section for an agreed-upon time for review by Customer. 


7.4. 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 if the Disclosing Party wishes to contest the disclosure. 


7.5. Privacy and GDPR.  We and You agree to comply with all applicable state, federal, and other country’s privacy laws and regulations, including the European Union’s (the “EU”) GDPR and the terms and conditions set forth in the DPA, attached hereto. 


8. WARRANTIES AND DISCLAIMERS


8.1. Our Warranties. We warrant that all Services will be performed by Us in a professional manner, consistent with the standard of skill and care exercised by the best professionals within our industry on projects of comparable scope and complexity, in a similar location, and in conformance with the requirements of this Agreement. We warrant that We are sufficiently experienced, properly qualified, registered, licensed, equipped, organized, and financed to perform the Services in compliance with the terms of this Agreement. We warrant that the security, performance, access and functionality of the Platform and Services will not be materially decreased during a subscription Term. For any breach of such warranty, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.5 (Refund or Payment upon Termination) below.


8.2. Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other Party any Malicious Code.


8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 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.


9. MUTUAL INDEMNIFICATION


9.1. Indemnification by Us. We shall defend, indemnify, and hold You and your Affiliates and your and their employees, officers, directors, agents, and contractors (collectively “Customer Indemnitees”)  against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the Platform and Services infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall defend, indemnify, and hold You harmless for any damages, fines, penalties, losses, liabilities, and other expenses finally awarded against, and for reasonable attorneys’ fees incurred by, You in connection with any such Claim; provided, that You

(a) promptly give Us written notice of the Claim;

(b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and

(c) provide to Us all reasonable assistance, at Our expense.


9.2. Indemnification by You. You shall defend, indemnify, and hold Us and Our employees, officers,  directors, agents, and contractors (collectively “Company Indemnitees”) harmless against any Claim made or brought against Us by a third party alleging that Your Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify the Company Indemnitees for any damages, fines, penalties, losses, liabilities, and other expenses finally awarded against, and for reasonable attorneys’ fees incurred by, Us  in connection with any such Claim; provided, that We

(a) promptly give You written notice of the Claim;

(b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and

(c) provide to You all reasonable assistance, at Our expense.


9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section. A party's failure to give prompt written notice of a Claim will not relieve such party of its obligations under this Section 9 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure.


10. LIMITATION OF LIABILITY


10.1. Limitation of Liability. EXCEPT FOR FRAUD, GROSS NEGLIGENCE, WILFUL MISCONDUCT OR WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 AND ANY BREACH OF A PARTY’S CONFIDENTIALITY OR PRIVACY OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY YOU HEREUNDERIN THE 12  MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).


10.2. Exclusion of Consequential and Related Damages. EXCEPT FOR FRAUD, GROSS NEGLIGENCE, WILFUL MISCONDUCT OR WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 AND ANY BREACH OF A PARTY’S CONFIDENTIALITY OR PRIVACY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.    


11. TERM AND TERMINATION


11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement and Order Forms referencing this Agreement have expired or been terminated (the “Initial Term”). The Term may be extended upon request by You for additional one year terms as documented in a signed agreement between the Parties (each an “Extended Term” and, with the Initial Term, collectively the “Term”).


11.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the effective date specified in the applicable Order Form and continue for the subscription Term specified therein. All User subscriptions shall renew for an Extended Term upon request by You and as documented in a signed agreement between the Parties. The pricing during any such renewal Term shall be the same as that during the prior Term unless We have given You written notice of a pricing increase at least 90 days before the end of such prior Term, in which case the pricing increase shall be effective upon renewal and thereafter, provided that such increases will not exceed 5% per annum.


11.3. Termination for Cause. Either Party may terminate this Agreement for cause:

(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) immediately upon written notice to the other Party 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. If the Agreement is terminated for cause by Customer, MentorCloud will return a prorated sum of any unused fees and charges paid in advance. MentorCloud will not refund any prepaid fees if it terminates the Agreement for cause.


11.4 Termination for Convenience.  Either Party may terminate this Agreement without cause upon 90 days written notice to the other Party.


11.5. Refund or Payment upon Termination. Upon any termination for cause by You or termination for convenience by either Party, We shall refund You any prepaid fees covering the remainder of the Term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the Term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. We will not refund any prepaid fees if We terminate the Agreement for cause or non-payment of additional applicable fees. 


11.6. Return of Your Data. Upon request by You made within 60 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format, at no charge to You. After such 60-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control and, upon Customer’s request, Company shall certify to such destruction in writing.


12. GENERAL PROVISIONS


12.1. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), Section 6 (Proprietary Rights), Section 7 (Confidentiality), Section 8.3 (Disclaimer), Section 9 (Mutual Indemnification), Section 10 (Limitation of Liability), Section 11.5 (Refund or Payment upon Termination), Section 11.6 (Return of Your Data), Section 12 (General Provisions) and any other section, which by its context and intent is intended to survive, shall survive any termination or expiration of this Agreement.


12.2. 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 given upon:

(i) personal delivery,

(ii) the tenth business day after mailing,

(iii) the second business day after sending by confirmed facsimile or overnight mail, or

(iv) the second business day after sending by email (provided email shall not be sufficient for notices of Termination, notices of disclosures under Section 7.4 or an indemnifiable claim).

Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.


12.3. 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.


12.4. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing,

(i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and

(ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.


12.5. 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.


12.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.


12.7. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.


12.8. Governing Law.  This Agreement will be governed by and interpreted in accordance with the laws of the state of Delaware without giving effect to its conflicts of law rules.  Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from and will not apply to this Agreement.


12.9. Dispute Resolution.  

(a)Dispute Resolution.  Without impairing a Party's rights to terminate this Agreement as provided herein, the Parties shall first attempt to resolve any disputes, claims or controversies (collectively “Dispute”) arising out of or related to this Agreement, including any claim under applicable law other than to seek equitable relief for breaches relating to confidentiality. Prior to the filing of a claim with respect to such a Dispute, the Party believing itself aggrieved (the "Invoking Party") will call for progressive management involvement in the Dispute negotiation by giving written notice to the other Party.  Such a notice will be without prejudice to the Invoking Party's right to any other remedy at law, in equity or as permitted by this Agreement.  The Parties will use best efforts to arrange personal meetings and/or telephone conferences as needed, at mutually convenient times and places, between their negotiators at the following successive management levels, each of which will have a period of allotted time as specified below in which to attempt to resolve the Dispute.


(b)Mandatory and Binding Arbitration. If the Parties are unable to resolve the Dispute under subsection 12.9 above, the Parties agree to settle the Dispute by mandatory and binding arbitration administered by one arbitrator, mutually acceptable to each of the Parties, under the commercial arbitration rules of the American Arbitration Association then in effect and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.


12.10. 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.


12.11. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), upon written notice to but 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. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the Term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.


12.12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. 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 Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.


12.13. Electronic Signatures and Counterparts. This Agreement, and any statement of works, purchase orders, amendments hereto or thereto, and any waiver hereof, may be signed electronically or by facsimile and executed in counterparts, all of which taken together shall constitute one single agreement between the Parties.  If electronic signatures are used for this purpose, either Party may print out the faxed or imaged version of this Agreement signed by the other Party and then sign in the designated space.


12.14. Insurance. Company agrees to maintain, at its own expense, insurance in the minimum amounts and coverage as follows:

a) Workers' Compensation – in amounts required by statute(s) in those states in which the Services will be required;

b)  Employers Liability Insurance - $1,000,000 per occurrence, $2,000,000 aggregate;

c) Commercial General Liability - $1,000,000 per occurrence, $2,000,000 aggregate;

d) Umbrella/Excess Liability - $5,000,000 per occurrence;

e) Errors & Omissions insurance - $2,000,000 per claim.

In addition:

a) Company shall add Customer as an additional insured on the commercial general liability policy;

b) Upon execution of this Agreement, Company and/or insurance agent will provide Customer with a certificate of insurance that details Company's insurance coverage.  Company shall provide 30 days’ written notification of any material changes or cancellation of coverage;

c) The commercial general liability policy must be on an occurrence form;

d) All insurance shall be primary and does not limit the liability of Company;

e) The errors and omissions liability policy shall include privacy and network security coverage;

f) The insurance company should have a Best's rating of no less than A-VII.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by persons duly authorized as of the Effective Date.

MENTORCLOUD, INC.THE CUSTOMER

 

EXHIBIT A

MentorCloud provides a cloud-based online platform for customers to run large scale global mentoring / coaching programs. The platform allows customers’ authorized Users to create profiles as mentors/coaches and mentees/coachees, and helps them to schedule mentoring / coaching sessions for sharing knowledge with each other.

MentorCloud platform is offered as a private white-labeled instance to each of its customers, with customer-specific configuration such as the following – 

  • Logo, branding and colors
  • Topics of expertise for mentoring / coaching interactions between users
  • Additional user profile attributes