Master Subscription and Services Agreement

This Master Subscription and Services Agreement (“Agreement”) is made on the date set forth in the PayPal or Credit Card Payment (the “Effective Date”) by and between Conatus3, Inc., a Florida corporation, headquartered at 11509 Schirra Street, Papillion, NE 68046 on behalf of itself and any of its Affiliates (collectively, “Conatus3”), and the entity identified in the PayPal or Credit Card Payment (“Customer”), individually a “Party” and collectively the “Parties”. 


The Parties agree as follows: 

1. DEFINITIONS Capitalized terms shall have the meanings provided in this section or as specified in the body of the Agreement. 


“Agreement” means this Master Subscription and Services Agreement, and unless the context requires otherwise, includes all PayPal or Credit Card Payments, and any addendums, exhibits or attachments to any of the foregoing. 


"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. 


"Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Affiliates of Conatus3, Inc. include any of its corporate Affiliates which may be specified or otherwise assigned rights or obligations under this Agreement or any PayPal or Credit Card Payment, addendum, exhibit, attachment or any amendment. 


“API” means application programming interface. 


"Customer Data" means all electronic data or information submitted by Customer to the Talent Management Services. 


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


“Documentation” means any proprietary information or documentation made available to Customer by Conatus3 for use with the Talent Management Services, including any documentation available online through the Talent Management Services dashboard or otherwise. 


"PayPal or Credit Card Payment" means each Conatus3 ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the Services ordered by Customer from Conatus3, sets forth the prices for the Services, and contains other applicable information terms and conditions. 


“Professional Services” means consulting, training, configuration and such other Talent Management Services described on the Conatus3 Inc Website.  


“Registered Representative(s)” means up to two employees of Customer who are authorized to use the Talent Management Services or platform. 


“Services” means, collectively, the provision of the Talent Management Services and the Professional Services specified as “Professional Services” or listed in an order form.  


“SLA” means Conatus3’s Service Level Agreement attached to this Agreement. 


“Social Media Network” means websites such as Twitter, Facebook, Google, or other websites that solicit content from users and makes such content available for re-syndication and/or publication via an API and are utilized by Customer via the Talent Management Services platform. 


“Social Media Network Content” means any and all content originally posted by third parties to a Social Media Network. 


“Social Media Network TOS” means the terms of service, rules, guidelines, and any applicable requirements or terms and conditions of any Social Media Network with respect to access and use of, or other rights with respect to, a Social Media Network or Social Media Network Content. 


"Talent Management Services" means, collectively, the online, web-based applications and platforms provided by Conatus3 and ordered by Customer pursuant to this Agreement and accepted by Customer in one or more PayPal or Credit Card Payment(s). 


“Term” means the time period for the provision of the Services, as specified in an PayPal or Credit Card Payment. This Agreement will terminate as specified below. 


"User" means an individual who is authorized by Customer to use the Talent Management Services in accordance with the Agreement. The rights of any User to use the Talent Management Services may be shared or used by no more than two registered representatives (unless such right is reassigned in its entirety to another authorized User). 


2. SERVICES 

2.1. Provision of Services. Conatus3 will provide to Customer the Services pursuant to this Agreement and the relevant PayPal or Credit Card Payment during the applicable Term. Services will be provided pursuant to this Agreement and the specifications set forth in the applicable PayPal or Credit Card Payment, and substantially in accordance with the specifications set forth in the SLA. 


2.2 Third Party Applications. Conatus3 may offer Customer the ability to use third-party applications in combination with the Talent Management Services. Any such third party application will be subject to acceptance by Customer. In connection with any such third-party application agreed to by Customer, Customer acknowledges and agrees that Conatus3 may allow the third-party providers access to Customer Data as required for the interoperation of such third-party application with the Talent Management Services. The use of a third party application with the Talent Management Services may also require Customer to agree to a separate agreement or terms and conditions with the provider of the third party application, which will govern Customer’s use of such third-party application. 


3. RESPONSIBILITIES AND RESTRICTIONS 

3.1 Conatus3 Responsibilities. Conatus3 will provide the Talent Management Services to Customer during the Term in accordance with this Agreement. 


3.2. Customer Responsibilities. Customer is responsible for all activity that occurs under Customer’s accounts by or on behalf of Customer. Customer agrees to (a) be solely responsible for all User activity, which must be in accordance with this Agreement and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the Conatus3 obligations set forth in the Agreement) (c) obtain and maintain during the Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify Conatus3 promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations. 


3.3 Restrictions. Customer will not (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the Talent Management Services or any third-party application or third-party data or content contained therein, or (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation. 


3.4 Privacy and Data Protection. In the event Customer or any Customer Data is sourced from the European Union (“EU”) or the Services otherwise involve special privacy or data protection provisions (whether applicable in the EU or otherwise), the parties may agree to a Data Processing Addendum with additional provisions relating to privacy and data protection, which shall be attached to this Agreement or PayPal or Credit Card Payment and become a part of this Agreement. 


4. SOCIAL MEDIA NETWORKS 

4.1 Social Media Network Terms of Service. Customer understands and agrees that upon authentication of a Social Media Network account through the Talent Management Services, Customer is subject to compliance with the applicable Social Media Network TOS. Customer acknowledges that the Social Media Network TOS govern the collection and use of information submitted by individuals through Social Media Networks and Customer shall comply with all Social Media Network TOS. The Social Media Network TOS may change or include new terms and conditions from time to time and Customer shall be bound by any such changes or new terms and conditions. 


4.2 No Liability for Social Media Networks or Content. Conatus3 does not control the Social Media Networks and Social Media Network Content is not created or edited by Conatus3 (unless done on behalf of Customer as a part of negotiated Professional Conatus3 Confidential Last Updated September 2017 3 of 8 Services). As such, Conatus3 expressly disclaims and has no responsibility or liability for Social Media Network or Social Media Network Content (provided that, if applicable. Conatus3 will have the responsibility that Conatus3 agrees to for any Professional Services which involve the creation of such content). 


5. FEES AND PAYMENT 

5.1. Fees. Customer shall pay all fees specified in all PayPal or Credit Card Payments hereunder (“Fees”) for the Services. Customer shall also reimburse Conatus3 for all reasonable travel and living expenses incurred in the performance of Professional Services, provided that any material expenses shall be subject to approval in advance by Customer. Except as otherwise specified herein or in an PayPal or Credit Card Payment, (a) Fees will be quoted and paid in United States dollars and (b) payment obligations are non-cancelable and Fees paid are nonrefundable. 


5.2. Invoicing and Payment. If a purchase order is required by Customer, Customer will provide Conatus3 with a valid purchase order within five (5) days from the execution of the applicable PayPal or Credit Card Payment. Any terms and conditions on any purchase order shall not be deemed a part of this Agreement or otherwise binding on Conatus3. Conatus3 will invoice Customer in accordance with the relevant PayPal or Credit Card Payment. Unless otherwise stated in the PayPal or Credit Card Payment, Fees are due net thirty (30) days from Customer’s receipt of the invoice. Customer is responsible for providing Conatus3 with complete, accurate and up to date billing and contact information. 


5.3. Overdue Fees. If any Fees are not received from Customer by the due date, then at Conatus3’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. 


5.4. Suspension of Services. Except with respect to any Fees disputed in good faith by Customer, if any Fees for the Talent Management Services or Professional Services are thirty (30) or more days overdue, Conatus3 may, without limiting Conatus3’s other rights and remedies, suspend Professional Services and Customer’s use of the Talent Management Services until such amounts are paid in full. 


5.5. Payment Disputes. If an invoiced amount is disputed in good faith by Customer, Customer must notify Conatus3 in writing and provide sufficiently detailed support of any invoice dispute within ten (10) business days of Customer’s receipt of invoice. If Customer fails to do so, Customer is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid. Nothing in this section shall be deemed to waive Customer’s obligation to pay any undisputed amounts in accordance with Section 5.2 (Invoicing and Payment). 


5.6. Taxes. The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on Conatus3’s net income, property, or employee withholdings. Taxes shall not be deducted from the payments to Conatus3, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, Conatus3 receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. 


5.7. Audit Rights. Conatus3 shall have the right to audit Customer’s compliance with this Agreement at any time during the Term. Customer shall cooperate following any reasonable request by Conatus3 in connection with such audit. If Conatus3 determines that Customer has allowed access to the Services other than as permitted under this Agreement or any PayPal or Credit Card Payment or has otherwise violated any applicable terms hereof or thereof, and as a result additional Fees are owed to Conatus3, Conatus3 shall invoice Customer for such discrepancies and such Fees shall be payable pursuant to the terms of this Agreement. The results of any audit shall not limit any other rights or remedies of Conatus3. 


6. PROPRIETARY RIGHTS 

6.1. Conatus3 Ownership. Subject to any rights expressly granted to Customer in the Agreement, Conatus3 and its licensors, as applicable, reserve all right, title and interest in and to the Services, including information presented in any form and intellectual property rights (“Conatus3 Intellectual Property”). 


6.2. Customer Ownership and Licenses. As between Conatus3 and Customer, Customer owns all rights, title and interest in and to (a) all Customer Data and (b) any information supplied by Customer to Conatus3 as may be specified in any PayPal or Credit Card Payment (collectively, “Customer Materials”). Customer grants Conatus3 a non-exclusive, non-transferable, royalty free, non-sublicenseable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to Customer at Customer’s request. No other rights or implied licenses in Customer Materials are granted to Conatus3 other than as expressly set forth herein. 


6.3. Feedback and Derivative Works. Customer is not required to provide (a) any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works or other intellectual property (“Derivative Works”) related to the Services or any test features, services or products to which Customer is given access. If Customer does so, Customer grants Conatus3 a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, or incorporate into any of its services, any Feedback or Derivative Works. Customer may only create Derivative Works relating to the Services or any test features, services or products to which Customer is given access, with prior written consent from Conatus3. 


7. CONFIDENTIALITY 

7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Discloser") to the other Party ("Recipient"), 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. Customer Confidential Information will include, but is not limited to, Customer Data; Conatus3 Confidential Information includes, but is not limited to, the Talent Management Services, information or technology used in connection with the Services, this Agreement and all PayPal or Credit Card Payments; and Confidential Information of each Discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information. 


7.2. Protection of Confidential Information. Except as otherwise permitted in writing by Discloser, Recipient will (a) 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) and use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein. 


7.3. Protection of Customer Data. Without limiting the above, Conatus3 will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except (a) in order to provide the Services, (b) to prevent or address service or technical problems in connection with support matters, or (c) as expressly permitted in writing by Customer, Conatus3 will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Section 7.4 (Compelled Disclosure). 


7.4. Compelled Disclosure. Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser's cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information. 

8. WARRANTIES AND DISCLAIMERS 

8.1. Conatus3 Warranties. Conatus3 warrants that (a) the Talent Management Services will perform substantially in accordance with the Documentation made available to Customer, (b) subject to Section 4 (Social Media Networks), the functionality of the Talent Management Services will not be materially decreased during the Term and (c) the Professional Services will be performed in a professional and workmanlike manner. For any breach of the foregoing warranties, Customer’s exclusive remedy will be as provided in Section 11.3 (Termination for Cause) and Section 11.5 (Refund or Payment upon Termination). Notwithstanding the foregoing, if any PayPal or Credit Card Payment has a Term of more than twelve (12) months, in the event Conatus3 or any of its licensors determine to materially change or cease offering any material element of the Services, Conatus3 may effect such change or cessation following reasonable notice thereof to Customer and the relevant PayPal or Credit Card Payment shall be amended to reflect such change. 


8.2. Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and (c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement. 


8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CONATUS3 MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT SERVICE FEATURES THAT INTEROPERATE WITH SOCIAL MEDIA NETWORKS DEPEND ON THE CONTINUING AVAILABILITY OF THOSE SOCIAL MEDIA NETWORKS’ API AND PROGRAM FOR USE WITH THE TALENT MANAGEMENT SERVICES. SERVICES MAY BE IMPACTED, INTERRUPTED OR MAY CEASE IF ANY SOCIAL MEDIA NETWORK CEASES TO MAKE ITS API OR PROGRAM AVAILABLE AT ALL OR ON REASONABLE TERMS OR IF ANY SOCIAL MEDIA NETWORK EXPERIENCES AN OUTAGE, ANY MALFUNCTIONS OR ANY CHANGE IN THEIR SERVICES, PRACTICES OR FUNCTIONALITY. 


9. INDEMNIFICATION 

9.1. Indemnification by Conatus3. Conatus3 will defend, indemnify and hold harmless Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the provision of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party; provided that Customer (a) promptly gives Conatus3 written notice of the Claim; (b) gives Conatus3 sole control of the defense and settlement of the Claim (provided that Conatus3 may not settle any Claim without Customer’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Customer of all liability); and (c) provides to Conatus3 all reasonable assistance, at Conatus3’s expense. Conatus3 has no obligation to indemnify a Claim if it arises from: (i) Customer Data or Customer Materials; or (ii) unauthorized modification or use of the Services; or otherwise relating to Customer’s acts or omissions not in accordance with, or in breach of, the terms of this Agreement. 


9.2. Indemnification by Customer. Customer will defend, indemnify and hold harmless Conatus3 against any Claim made or brought against Conatus3 by a third party (a) relating to or arising from Customer’s use of the Services in violation of this Agreement, or (b) relating to or arising from Conatus3’s permitted use of Customer Data, Customer Materials, or Customer’s breach of any Social Media Network Terms of Service or any other terms and conditions of a third party agreed to by Customer in connection with, or relating to, the Services; provided that Conatus3 (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Conatus3’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases Conatus3 of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s expense. 


9.3. Exclusive Remedy. This Section 9 (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. 


10. LIMITATION OF LIABILITY 

10.1. Limitation of Liability. EXCEPT FOR (A) DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. 


10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL 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 WILL NOT APPLY (A) TO A VIOLATION OF CONFIDENTIALITY OBLIGATIONS OR (B) TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 


11. TERM AND TERMINATION 

11.1. Term of Agreement. This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all PayPal or Credit Card Payments under this Agreement or (b) the termination of this Agreement in accordance with this Section. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all PayPal or Credit Card Payments will immediately terminate and Customer will cease using the Services. For avoidance of doubt, upon termination of any PayPal or Credit Card Payment, the Services provided pursuant to such PayPal or Credit Card Payment shall cease and Customer shall stop using such Services. 


11.2. Automatic Renewal. Subscriptions for the Talent Management Services commence on the Order Date specified in the applicable PayPal or Credit Card Payment and continue for the subscription Term specified therein, unless otherwise terminated. Except as otherwise specified herein or in the applicable PayPal or Credit Card Payment, all subscriptions will automatically renew for additional periods of one year (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term. 


11.3. Termination for Cause. A Party may terminate this Agreement or any applicable PayPal or Credit Card Payment: (a) upon 30 days’ written notice to the other Party.


11.4. Survival. Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect. 


11.5. Refund or Payment upon Termination. Upon any termination for cause by Customer, Conatus3 will refund Customer a pro-rata portion of any prepaid Talent Management Services Fees that cover the remainder of the Term after the effective date of termination and a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination. Upon any termination for cause by Conatus3, Customer will pay any unpaid Fees covering the remainder of the Term of all subscriptions under the applicable PayPal or Credit Card Payments after the effective date of termination and for any Professional Services provided up to the date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Conatus3 for the period prior to the effective date of termination. 


11.6. Downloading of Customer Data. During any Term under an PayPal or Credit Card Payment, on a rolling 24-month basis (unless otherwise provided in any PayPal or Credit Card Payment) and for the period 30 days after termination or expiration of the Agreement or the applicable PayPal or Credit Card Payment, Customer may download Customer Data used in connection with such PayPal or Credit Card Payment, in comma separated value (.csv) format, using the tools of the Talent Management Services. After expiration of the applicable rolling 24 month or 30-day period, Conatus3 will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in Conatus3 systems or otherwise in Conatus3 possession or under Conatus3 control. 


12. PROFESSIONAL SERVICES 

12.1 Availability of Customer Resources. Customer will make available to Conatus3 certain of Customer personnel, business information and other relevant information as reasonably required by Conatus3 in the performance of any Professional Services hereunder or as specified in any applicable PayPal or Credit Card Payment. Customer will ensure that competent personnel are available during normal working hours to provide information and other support to Conatus3 while providing Professional Services. Customer acknowledges that the timeliness or provision of Professional Services may be dependent on such Customer’s personnel availability and cooperation. 


12.2 Compliance with Customer or Conatus3 Rules. If applicable, while on the premises of the other Party for training or other services, each Party will take reasonable measures to have its personnel comply with the other Party’s reasonable rules and policies regarding safety, security, and conduct made known to such Party, and will at Customer’s request promptly remove from the project any of its personnel not following such rules and regulations. 


13. DISPUTE RESOLUTION, GOVERNING LAW & NOTICES 

13.1 Dispute Resolution, Governing Law. The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to this Agreement will be brought in the state or federal courts located in Omaha, Nebraska and the Parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement will be governed by the laws of the State of Nebraska, excluding choice of law principles. Notwithstanding the above, for Customers headquartered in the European Union Economic Area, as set forth in the PayPal or Credit Card Payment, claims or causes of action relating to this Agreement will be brought in the courts of England and Wales and the Parties agree to submit to the exclusive personal jurisdiction of such courts. For such Customers, this Agreement will be governed by the English law, excluding choice of law principles. 


13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) delivery by traceable courier, (b) upon delivery via mailing (confirmed receipt signature/return receipt requested), or (c) the second business day after sending by confirmed facsimile. Notices to Conatus3 will be addressed to the CEO at 11509 Schirra Street, Papillion, NE 68046, or in the case of Customer, sent to the address and contact set forth on the PayPal or Credit Card Payment, or as designated from time to time in writing by the Parties. Billing-related notices will be addressed to the relevant billing contact designated by Customer on the PayPal or Credit Card Payment. 


13.3. 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. 


14. GENERAL PROVISIONS 

14.1. No Dependence on Future Functionality. Customer agrees that Customer is not entering into this Agreement or any PayPal or Credit Card Payment contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any PayPal or Credit Card Payment and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in an PayPal or Credit Card Payment. 


14.2 Export Compliance. Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports or otherwise restricted from doing business with any U.S. company, and Customer will not access or use the Services in violation of any U.S. or international export embargo, prohibition or restriction. 


14.3. Force Majeure. Neither Party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labor disputes or governmental demands or restrictions. 


14.4. 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. 


14.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise. 


14.6. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will 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. 


14.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect. 


14.8. 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 or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all PayPal or Credit Card Payments), 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. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. 


14.9. General. This Agreement, including all exhibits and addenda hereto and all PayPal or Credit Card Payments, 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 or any PayPal or Credit Card Payment will be effective unless in writing and signed by each Party. 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 PayPal or Credit Card Payment, the terms of such exhibit, addendum or PayPal or Credit Card Payment will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding PayPal or Credit Card Payments) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. This Agreement may be executed in counterparts, each of which, when so executed and delivered (including by electronic transmission), shall be deemed an original, and both of which shall constitute one and the same agreement. 


The Parties agree to the terms and conditions of this Agreement by their signature on the PayPal or Credit Card Payment. 

EXHIBIT A

Standard Service Level Agreement


This SLA is an exhibit to the Master Subscription and Services Agreement between Conatus3 and Customer. 


Product support is provided by the Conatus3 Talent Management Support Team (“TMST”). Support encompasses technical troubleshooting, functional expertise and instruction on the configuration and use of Conatus3 products, as well as general customer service. Conatus3 recommends that Customer leverage internal support mechanisms and/or the self-service content in the Conatus3 Community (at the link provided below) in addition to the TMST members for the best experience possible. 


Capitalized terms have the meanings given to them herein or in the MSA. The term “Talent Management Services” means all software-as-a-service products subscribed to by Customer. The term “Month” means calendar month. 


The terms of the Service Level Agreement (“SLA”) are as follows. 

  • Uptime – Uptime is the time during any Month that the Talent Management Services is available within reasonable response times. Conatus3 has an Uptime guarantee of 99.5% except for Scheduled Maintenance (as defined below). The calculation used to arrive at the Uptime result is: 


            (# of Minutes Per Month*) x (99.50%) =#Uptime Minutes Per Month 


  • Uptime Measurement & Exclusions – Uptime is measured by our external monitoring system through API access and HTTP screen loads. Uptime excludes Scheduled Maintenance and any downtime or service interruptions caused by any third-party network or application (ex. downtime of a Social Media Network, the LMS provider, or Bellevue University’s IT maintenance schedule). 
  • Customer Support Hours – Standard Conatus3 Customer Support hours are 24x7 
  • Customer Support Contact Options – Customer can reach the Conatus3 TMST through the following channels: 
  • Email: helpline@Conatus3.com
  • Phone Line: USA (402) 909-5599 or Text


Service Level Commitments - Conatus3 will acknowledge and respond to all inbound requests as specified in the Priority Support Table below. Resolution times will vary depending on the complexity of the reported problem and/or the nature of the required solution. In some cases, resolution may take longer if:

 

  • A significant product change is required. 
  • A third-party application or network (ex. a Social Media Network) or other condition outside our control is responsible for the underlying problem.


Conatus3’s standard framework for problem resolution is to categorize and prioritize problem reports in a typical manner, such as “Priority 1”, “Priority 2”, and “Priority 3”. Any production system outage is automatically treated as a high/critical “Priority 1” issue and triggers a 24x7 development and support commitment until resolved. Lower priority issues are ranked based on impact to Customer and issue complexity. 


Initial Response: Acknowledgment of receipt of problem reported and assignment of support incident number with estimated time for resolution.