Introduction

This Elevate Master License Agreement (this “Agreement”), effective as of (the “Effective Date”) sets forth the Terms and Conditions under which Cadmium, LLC (“Cadmium”) will provide the Services described herein (“Services”) to (“Customer”) to allow for the provision and management of such Services for Customer’s members, customers, and stakeholders (collectively, the “Users”).

WHEREAS, Cadmium delivers eLearning solutions for professional education, development, and continuing education programs to corporate customers, trade and professional associations and other credentialing institutions.

WHEREAS, Cadmium’ service offerings enable its customers to utilize Cadmium’ Learning Management Software called ELEVATE (“ELEVATE”) to engage their constituents with live and on-demand webinars, video, audio, SCORM, documents, testing, surveys, certificate programs, and other educational materials; and

NOW THEREFORE, for the consideration set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, Cadmium and Customer (the “Party” or “Parties”) agree as follows:

I. ELEVATE

1. Access to ELEVATE

Cadmium agrees to provide Customer and its Users with access to ELEVATE.

2. License Grant

Cadmium hereby grants to Customer and to each User who accesses ELEVATE by means of Customer’s account with an authorized password, a non-exclusive, non-transferable , non-sub-licensable license to access and use the ELEVATE services via the Internet.

3. License Restrictions

Customer shall not: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of ELEVATE (ii) modify, translate, or create derivative works based on the ELEVATE; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to ELEVATE; (iv) use ELEVATE for timesharing or service bureau purposes or otherwise for the benefit of a third party (except Customer Users, as expressly permitted in this Agreement); or (v) remove any proprietary notices from ELEVATE.

4. Passwords/Security

4.1 Passwords. Cadmium shall issue to Customer, or shall authorize a Customer administrator to issue, a single password for each User. Alternatively, if Customer so requests, for an additional fee as set forth in Exhibit C, Cadmium will enable ELEVATE to interface with Customer’s network such that ELEVATE can be accessed by Users via “single sign-on” (SSO) functionality or a mutually agreeable, alternative authentication process. Customer is responsible for maintaining the confidentiality of all of its issued passwords. Customer is responsible for all charges incurred from use of ELEVATE accessed with the Customer’s issued passwords to the extent that the person accessing ELEVATE obtained the passwords from Customer. Customer agrees to promptly notify Cadmium if Customer becomes aware of any unauthorized use of the Customer’s account which are the subject of such unauthorized use or breach. Cadmium shall have no liability for any loss or damage arising from Customer’s failure to comply with this requirement.

4.2 Security. Cadmium may host ELEVATE at a reputable third party Internet service provider and hosting facility so long as Cadmium remains responsible for ensuring that such service provider and hosting facility comply with the terms of this Agreement, including but not limited to II.13 below. Cadmium will remain responsible for the acts and omissions of such service provider and hosting facility, and any other subcontractor, to the same extent as if Cadmium had committed such acts or omissions itself.

5. Ownership of Prepared Materials

Except for those items described below, all materials, including custom graphics, prepared by Cadmium for Customer (the “Prepared Materials”) shall be considered the exclusive property of the Customer, and all right, title and interests, including all copyrights, in and to the Prepared Materials shall vest solely in Customer. Customer is assigned rights to use the materials, design, graphics, and text used on the ELEVATE site. The Prepared Materials do not, however, include any Cadmium Materials, as defined in Section II.8 below. Cadmium hereby gives Customer a nonexclusive, worldwide, royalty-free license to use, execute, and display the Cadmium Materials. Upon Customers written consent, Cadmium may include any of the Prepared Materials in Cadmium marketing portfolio, provided that all references to Customer’s names, logos, trademarks, or services marks, or any divisions or business units of any of them, are removed from the Prepared Materials.

6. Integration with Authorize.net, BluePay and PayFlowPro

Cadmium will integrate, or has integrated, the ELEVATE platform with Authorize.net, BluePay and PayFlowPro merchant platforms for purposes of processing payments from Users. Cadmium acknowledges and agrees that its provision of the Services hereunder may affect Customer’s ability to comply with the Authorize.net, BluePay and PayFlowPro agreements. Cadmium will defend, indemnify, and hold harmless Customer from and against any claim by Authorize.net, BluePay or PayFlowPro resulting from Cadmium's provision of the Services, except to the extent arising from Customer’s breach of this Agreement.

II. GENERAL TERMS

1. Customer Support

Cadmium will provide Customer and Users with support described in Exhibit B. Unless otherwise set forth herein (including but not limited to Exhibit B), Customer will be responsible for providing “Tier 1” support to its Users. “Tier 1” issues are defined as only those issues that are not specifically Cadmium technical issues but are related to the User’s ability to access and use ELEVATE and include issues related to Customer’s infrastructure, including Customer-provided equipment, internet connections and or database issues or content-specific issues related to products developed by Customer or by a publisher on behalf of the Customer or licensed by the Customer. In these situations, Cadmium support will refer issues to Customer designated contacts following a mutually agreeable procedure. Each customer service department will have a specific email address provided by Cadmium that Users can directly email for support. In other situations, Cadmium will provide services and support for ELEVATE as further described in Exhibit B.

2. Customer Content

2.1 Customer Content. As between Cadmium and Customer, Customer shall own all data, graphics, text, information, or material that Customer provides to Cadmium, including content uploaded through ELEVATE or provided or made available to Cadmium to upload to or use in connection with ELEVATE, and any modifications or additions to such content made by Customer or Cadmium (“Customer Content”). Except as set forth herein, nothing in this Agreement shall be construed to convey to Cadmium (or its agents or contractors) any rights in any material of Customer, including without limitation, any Customer Content, recordings of any event(s), or any derivative(s) thereof. Cadmium may access Customer’s Services account and access, use, transmit, modify, copy and distribute Customer Content from time to time as Cadmium deems necessary so long as solely for purposes of providing ELEVATE, support, administration and invoicing related to Customer’s use of ELEVATE in each case as set forth in this Agreement. Except as expressly stated herein, this Agreement does not transfer any right, title or interest in the Customer Content, Customer User Data or any component thereof to Cadmium. Customer reserves all rights in and to the Customer Content.

2.2 Restrictions. Cadmium will not edit, delete or disclose the contents of Customer Content unless authorized by the Customer or unless Cadmium is required to do so by law or in the good faith belief that such action is necessary to conform with applicable laws or comply with legal processes served on Cadmium in which case Cadmium shall (a) promptly inform the party or entity issuing such subpoena or other government process of the existence of this Agreement, (b) promptly inform Customer of the receipt of such subpoena or other government process and (c) not oppose any effort by Customer to quash or limit any such subpoena or other government process. In addition Cadmium may also disclose edit or delete the contents of Customer Content in the good faith belief that such action is necessary to (i) protect and defend the rights or property of Cadmium solely in connection with this Agreement; or (ii) enforce this Agreement. In any event, Cadmium will provide Customer with advance written notice before editing or deleting, such Customer Content.

2.3 Responsibility. Customer is solely responsible for the accuracy, quality, integrity, legality, and reliability of all Customer Content uploaded or provided by Customer and for obtaining and maintaining all copyrights and other rights necessary to enable Cadmium to host and manage the Customer Content in accordance with this Agreement.

2.4 User Data. To the extent that Customer’s use of ELEVATE requires Cadmium to host or maintain personally identifiable information or data relating to specific Customer Users and their use of ELEVATE (collectively, “Customer User Data”), as between the parties, Customer shall retain the sole ownership rights in and to such Customer User Data. Cadmium may use the Customer User Data only as necessary to maintain, operate and provide ELEVATE, as set forth in this Section and for no other purpose. Cadmium represents and warrants that it does not store or have access to User’s credit card information.

3. Trademark License

3.1 License. Customer authorizes Cadmium to use Customer’s trademarks, service marks and trade names (the “Customer Marks”) during the term of this Agreement and solely in connection with the development and provision of the Services to Customer pursuant to this Agreement. Cadmium shall use the Customer Marks in the form and format provided by Customer and shall include with the Customer Marks any designations (e.g., ® or ™) provided by Customer.

3.2 Ownership of the Customer Marks. All goodwill associated with Cadmium’ use of the Customer Marks hereunder shall automatically vest in the Customer. Cadmium shall not undertake any act that would impair the Customer Marks or the goodwill associated therewith. Cadmium shall not contest the validity of or Customer’s ownership rights in the Customer Marks.

4. Customer Obligations

4.1 Conduct. Customer shall be solely responsible for its actions and the actions of its employees while using ELEVATE with Customer’s account and Customer’s issued passwords. Customer shall not make any representations or warranties to third parties regarding ELEVATE that in any way exceed the representations and warranties made to Customer by Cadmium hereunder.

4.2 Law. Customer is solely responsible for the Customer Content. Customer shall comply with all laws applicable to Customer in its use of the Services. Customer shall (i) not knowingly upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of ELEVATE or another’s computer; (ii) obtain and maintain all appropriate and necessary licenses or permissions with respect to the Customer Content, including, without limitation, any required third-party content licenses that cover all necessary rights to publish, display, transmit, sell or otherwise use the Customer Content as set forth in this Agreement; and (iii) promptly remove from ELEVATE (or notify Cadmium of the need to remove) any Customer Content that misappropriates or infringes upon a third party’s rights. Use of conference recording or taping by Customer may subject Customer to privacy laws or regulations and Customer is solely responsible for and obligated to provide any required notification to participants prior to commencement of said electronic recording or taping. Customer acknowledges and agrees that Cadmium has not and is not expected to provide Customer with any analysis, interpretation or advice regarding Customer's compliance with the above.

5. Fees and Taxes

5.1 Fees and Expenses. The Fees for Elevate shall be as set forth in each Elevate Service Order. Unless otherwise stated in the Elevate Service Order, Cadmium may increase such Fees up to five percent (5%) annually from the prior Fees upon written notice to Customer given at least thirty (30) days before each Effective Date anniversary. All Fees are quoted in the United States currency. In addition to such Fees, Customer shall pay all applicable sales, use and other taxes or duties applicable to Customer’s receipt of ELEVATE (excluding taxes based on Cadmium’ income) to the extent that they are properly calculated by Cadmium and identified on the applicable invoice. Cadmium shall remit all such taxes or duties to the appropriate authorities. Customer agrees to reimburse Cadmium for all reasonable expenses incurred in connection with Implementation and Customization Services that are authorized in advance by Customer in writing and incurred in connection with this Agreement including, but not limited to, special graphics, special photography, special fonts, external hard drives, travel and lodging.

5.2 Payments. Fees will be invoiced monthly or in accordance with payment frequency and other terms set forth in the applicable Exhibits. Unless otherwise stated in this Agreement, Fees not disputed by Customers in good faith are due within Thirty (30) days from the invoice date. Any undisputed payment not received from the Customer by the due date shall accrue (except with respect to charges then under good faith dispute), at the lower of 1% of the outstanding balance per month (being 12% per annum), or the maximum rate permitted by Maryland law, from the date such payment is due until the date paid.

6. Term

The Initial Term of this Agreement (“Term”), which is stated in each Elevate Service Order, shall commence upon the signature date (“Effective Date”). A Continuation of Terms may be defined in the Elevate Service Order. If no Continuation of Terms is defined in the Elevate Service Order, then this Agreement shall thereafter continue in one (1) year increments, unless earlier terminated as provided in Section II.7, at the conclusion of the Initial Term.

7. Termination

7.1 Breach. Except as provided in Section II.7.3 below with regards to non-payment, either Party may terminate this Agreement upon written notice if the other Party has breached a material term of this Agreement and, for breaches that are capable of being cured, the breaching party has not cured such breach within fifteen (15) days of receipt of notice from the non-breaching Party specifying the breach. Without limitation, Customer may consider Cadmium to be in breach: (i) if Cadmium breaches any warranties provided for in Section II.10.3; (ii) should Customer’s use of ELEVATE in accordance with the terms of this Agreement infringe, violate, or misappropriate any third party patents, copyrights, trade secrets, or other intellectual property or proprietary rights; (iii) Failure to meet the Service Levels set forth on Exhibit B; or (iv) the Services do not materially conform satisfactorily or perform the tasks and feature functionalities as specified in Exhibit A.

7.2 Insolvency. Either Party may terminate this Agreement if (i) the other Party has a receiver appointed for it or its property; (ii) the other Party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other Party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other Party is liquidated or dissolved.

7.3 Failure to Pay/Customer Conduct. Cadmium may suspend or terminate ELEVATE, at its sole option, upon written notice, if (i) Customer is delinquent on payment of any undisputed amount by more than thirty (30) days after receiving written notice from Cadmium of such delinquency and (ii) Customer has not communicated with Cadmium regarding such late payment. Such notice shall be in delivered in writing (not including email). Cadmium may not suspend access to ELEVATE for any other reason.

7.4 Termination for Convenience. Customer may, upon thirty (30) days written notice to Cadmium, terminate this Agreement in whole or in part. To the extent that Customer terminates the entire Agreement during the Term, the following termination fees will apply: Termination during the Initial or Continuance Term shall be 100% of the sum of the remaining annualized monthly license fees.

7.5 Effect of Early Termination. If Customer terminates without cause or Cadmium terminates this Agreement for a material breach by Customer in accordance with this Section II.7.1 or II.7.3, then upon such termination (i) Cadmium may terminate access to ELEVATE and shall not be liable to Customer or any third party for such termination of access to ELEVATE and (ii) Customer will pay undisputed amounts for Services performed through the date of termination. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Customer or Cadmium, Customer’s right to use ELEVATE shall immediately cease. Sections II.2, II3.2, II.5 (to the extent that there are unpaid fees outstanding as of the date of termination), II.7-9, II.11-14 of this Agreement shall survive its expiration or termination for any reason. Upon termination, Cadmium shall delete all Customer Content and Customer User Data within sixty (60) days after expiration or termination of this Agreement without notice or further liability to Customer. Prior to termination, Customer may download Customer’s data at any time.

8. Proprietary Rights

As between the parties, Customer acknowledges that Cadmium owns and will continue to own all rights, title and interest in and to ELEVATE and all content elements, templates, work-flows, software, features, modifications, improvements, upgrades and derivative works incorporated into or related to ELEVATE (excluding the Customer Content and the Customer User Data and Customer Marks) (the “Cadmium Materials”). As between the parties, Cadmium retains exclusive ownership of the same throughout the world, including all related copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights thereto. Except as expressly stated herein, this Agreement does not transfer any right, title or interest in the Cadmium Materials to Customer. Customer agrees that it or its employees, contractors or agents may provide or create certain feedback regarding the attributes, performance or features of ELEVATE (collectively, “Feedback”). Customer hereby grants and agrees to grant to Cadmium a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to embed such feedback into ELEVATE and otherwise use, reproduce, disclose, sublicense, distribute, modify and exploit such Feedback without restriction.

9. Confidentiality

9.1 Obligations. Each of the parties agrees to maintain in confidence any non-public or personally identifiable information of the other Party, whether written or otherwise, disclosed by the other Party in the course of performance of this Agreement that a Party knows or reasonably should know is considered sensitive, proprietary, or confidential by the disclosing Party and which with respect to Customer at all times shall include Customer Content and Customer User Data (“Confidential Information”). The parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto. The receiving Party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the Parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each Party agrees to restrict access to the Confidential Information of the other Party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither Party shall make Confidential Information available to any other person or entity without the prior written consent of the other Party.

9.2 Exclusions. Confidential Information shall not include any information that the receiving party can reasonably establish as (i) already known to the receiving Party at the time of the disclosure (except for personally identifiable information provided or made available by or generated for Customer); (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving Party; (iii) subsequently disclosed to the receiving Party on a non-confidential basis by a third party not having a confidential relationship with the other Party hereto that rightfully acquired such information; or (iv) independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving Party provides prompt notice of any such subpoena, order, or the like to the other Party (to the extent permitted by law) so that such Party will have the opportunity to obtain a protective order or otherwise oppose the disclosure. In the event that the Disclosing Party fails to intervene to quash such subpoena or other government process after being given notice and a reasonable opportunity to do so or such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced, notwithstanding anything in this Agreement to the contrary. Subject to the exclusions in this Section, in the event that any Confidential Information is ordered produced in an action or proceeding, such Confidential Information shall not lose its confidential status through such use, and the receiving Party shall take all reasonable and necessary steps to protect the confidentiality of such Confidential Information during such use.

9.3 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason with regards to Customer Content and Customer User Data, each Party shall promptly return to the other Party, or destroy, as the Parties agree in writing, all copies of the other Party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving Party in any form or for any reason.

10. Representations and Warranties

10.1 Due Organization. Each Party represents that it is a business entity duly organized, validly existing, and in good standing in the jurisdiction in which it is incorporated, and that it has the full power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement.

10.2 Conflicting Agreements. Each Party represents and warrants that it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.

10.3 Warranties. Cadmium represents and warrants: (i) that its Services will be performed in a timely, professional, diligent, and workmanlike manner and in accordance with highest applicable industry standards; (ii) to Cadmium‘ knowledge, Customer’s use of ELEVATE in accordance with the terms of this Agreement shall not infringe, violate, or misappropriate any third party patents, copyrights, trade secrets, or other intellectual property or proprietary rights, (iii) ELEVATE will perform in accordance with this Agreement and all feature functions as set forth in Exhibit A. Exhibit A may change from time to time as new features are added to the Service.

10.4 Disclaimer. Except as otherwise specified herein, neither Party makes any other warranties, express or implied, and expressly disclaims any warranties of merchantability, fitness for a particular purpose, accuracy of data, or non-interference. Cadmium does not warrant that the services or any other deliverables or services provided hereunder will be uninterrupted or error-free.

10.5. Service Levels. The Services shall comply with the service levels set forth in the applicable Exhibits (“Service Levels”).

11. Indemnification

11.1 By Cadmium. Cadmium shall indemnify, defend, and hold harmless Customer, Customer Users and their respective directors, officers, employees, and agents against all claims, costs, damages, losses, and expenses (including reasonable attorneys’ fees) arising from or related to third party lawsuits arising out of (i) any breach of this Agreement by Cadmium, its contractors, employees, agents, successors and assigns; (ii) that ELEVATE or any deliverable provided hereunder infringes, violates or misappropriates any patent, copyright, trademark, trade secret or other intellectual property or proprietary rights; (iii) a breach of Cadmium’ obligations of confidentiality set forth in Section II.9 of this Agreement or its obligations regarding Information Security as set forth in Section II.13 of this Agreement. Customer will promptly notify Cadmium in writing of such claim or suit. Cadmium or its designee will have sole control of such defense and/or settlement. Customer will give all reasonable information and assistance requested by Cadmium or such designee at Cadmium's expense. To the extent that use of ELEVATE is enjoined, Cadmium may at its option and in addition to the obligations set forth above either (1) procure for Customer the right to use ELEVATE, (2) replace ELEVATE with other suitable products, or (3) refund any prepaid portion of the Fee(s) paid by Customer for ELEVATE or the affected part thereof. Cadmium shall have no liability under this Section or otherwise to the extent a claim or suit is based upon (I) use of ELEVATE in combination with software or hardware not provided by Cadmium if infringement would have been avoided in the absence of such combination, (II) modifications to, or combinations with, ELEVATE not made by or on behalf of Cadmium or reasonably necessary to use ELEVATE, if infringement would have been avoided by the absence of such modifications or combinations, or (III) any action or omission of Customer for which Customer is obligated to indemnify Cadmium under Section II.11.2 below.

11.2 By Customer. Customer shall indemnify, defend, and hold harmless Cadmium and its directors, officers, employees, and agents against all third party lawsuits seeking financial damages from Cadmium (including reasonable attorneys’ fees) arising out of a third party claim that the Customer Content (as provided by Customer) or Cadmium’ use of such Customer Content in accordance with this Agreement infringes or violates any third party rights, constitutes defamation or slander or unfair competition or violates any law, regulation or industry credentialing standard. Customer shall pay any final judgment entered against Cadmium in any such proceeding or agreed to in settlement of any claim covered by Customer’s indemnification obligation in this Section; provided (a) Customer is promptly notified in writing of such claim or suit, (b) Customer or its designee has sole control of such defense and/or settlement, and (c) Cadmium gives all information and reasonable assistance requested by Customer or such designee. Customer shall have no liability to under this Section or otherwise to the extent that a claim or suit is based upon any action or omission for which Cadmium is obligated to indemnify Customer based on Cadmium’ indemnification obligations set forth in Section II.11.1 above.

12. Limitation of Liability

12.1 Limitation on Damages. Except for liability resulting from (i) the Party’s indemnification obligations as set forth in this Agreement, (ii) claims arising from a breach of its obligations of confidentiality set forth in this Agreement, (iii) claims arising from a Party’s gross negligence or willful misconduct, or (iv) Cadmium’ obligations set forth in Section II.13, in no event shall either Party’s aggregate liability, if any, arising out of or in any way related to this agreement exceed the Fees paid by Customer under this Agreement, without regard to whether such claim is based in contract or tort, including negligence.

12.2 Disclaimer of Consequential Damages. Except with regards to (i) a Party’s breach of its obligations of confidentiality or information security set forth in this Agreement and (ii) claims arising from a Party’s gross negligence or willful misconduct, in no event shall Cadmium or Customer be liable for any indirect, special, punitive or consequential damages. In addition, damages asserted by a third party against a Party hereunder and for which such Party is entitled to indemnification pursuant to Section II.11 shall be considered direct damages as between the Parties and so not disclaimed by this Section.

12.3 Essential Purpose. The essential purpose of this Section is to limit the potential liability of the Parties arising under this Agreement. The Parties acknowledge that the limitations set forth in this Section are intrinsic to the amount of consideration levied in connection with the license of the Services and that, were Cadmium to assume any further liability, such consideration would out of necessity, been set much higher.

13. Information Security and Backup

13.1 Information Security. Notwithstanding any other confidentiality obligations, Cadmium agrees that it will maintain appropriate technical and organizational measures to comply with industry best practices and all applicable laws, rules, and regulations with respect to its use, handling, security, storage, disclosure (only as permitted by this Agreement), and retention of any Customer User Data in connection with ELEVATE that pertains to or identifies an individual, including without limitation name, postal address, e-mail or IP address, facsimile or phone number, mother’s maiden name, social security or identification number, transactional, employment, or financial data, medical or health records, personal, political, or philosophical preferences, and profile, account, and password information (“Customer PII”). By default, the Software does not require the storage of sensitive Customer User Data (“Customer PII”) such as; mother’s maiden name, social security or identification number, credit card numbers, passwords, employment, or financial data, medical or health records, personal, political, or philosophical preferences . In the course of using the Software, Customer and Users may have the opportunity to store information and material provided by Customer and Users (“Customer Data”) with the Software. Customer agrees that it will not use the Software to store sensitive Customer User Data. Customer accepts any and all liability for claims arising out of or related to stored sensitive Customer User Data. Cadmium will comply with all applicable personal data protection and privacy laws and industry standards, including but not limited to the Payment Card Industry - Data Security Standards, GDPR and Privacy Shield guidelines, as well as California Consumer Privacy Act . Cadmium shall have no right to use Customer PII received or made available or accessible by Customer or any Customer User for any reason not expressly permitted by Customer in this Agreement and shall immediately return to Customer any such information in its possession upon request by Customer or termination or expiration of this Agreement. Cadmium shall immediately (and in any event, within twenty-four (24) hours after Cadmium becomes aware that any Customer PII has been disclosed or revealed to, or accessed by, any unauthorized person, whether inadvertently or intentionally) provide Customer with notice of any security breach and for any Customer PII in its possession or control and at its own expense, investigate and take all steps to identify, prevent, and mitigate the effects of such security breach. Further, Cadmium shall promptly provide to Customer a detailed description of the incident, the data accessed, the identity of affected individuals, and such other information as Customer may reasonably request concerning the security breach and conduct any recovery necessary to remediate the impact, and bear any cost or loss Customer may incur as a result of such security breach to the extent such data was under Cadmium’ control or in Cadmium’ possession, including the cost of any notification of any affected consumers required of or undertaken by Customer.
In addition, Cadmium shall process any Customer PII only in accordance with Customer’s instructions (which may at any time be made available to Cadmium) and only to the extent necessary to carry out the purposes of this Agreement and provide Customer with access to ELEVATE.

13.2 Backup. All of Customer’s data, including Customer Content and Customer User Data, shall be backed up offsite in accordance with the following. In addition, Cadmium shall provide Customer with a copy of any such data at no additional charge upon request by Customer.

14. Miscellaneous

14.1 Notices. All notices to a Party shall be in writing (not including email) and sent to the addresses specified in this Agreement and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

14.2 Assignment. Neither this Agreement nor the ELEVATE license may be assigned or transferred by either Party, without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to (i) its successor in interest as a result of a merger, acquisition or sale of all or substantially all of its business.

14.3 Entire Agreement. This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements and understandings between the Parties relating to the subject matter hereof. This Agreement may be amended or superseded only by a written instrument signed by both Parties. In the event of any conflict between this Agreement and any Exhibit, Service Addenda, or Statement of Work, this Agreement shall govern.

14.4 Injunctive Relief. The Parties agree that any breach of the license or confidential information sections of this Agreement would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of the license or confidential information sections of this Agreement, the aggrieved Party will be entitled to seek equitable relief, without the need to post a bond, in addition to its other available legal remedies, in a court of competent jurisdiction.

14.5 Governing Law. This Agreement shall be governed by the laws of the State of Maryland, excluding its conflict of laws rules. Should either Party wish to initiate litigation related to this Agreement against the other Party, such action shall take place exclusively in the state or federal courts located in Maryland.

14.6 Independent Contractors. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the Parties hereto. No Party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. No Party shall have the power to control the activities and operations of any other and their status is, and at all times, will continue to be, that of independent contractors with respect to each other. No Party shall have any power or authority to bind or commit any other. No Party shall hold itself out as having any authority or relationship in contravention of this Section.

14.7 Severability. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement.

14.8 Force Majeure. Neither Party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that Party’s reasonable control - provided that such party has taken reasonable steps to mitigate such risks where possible (for example, implementing fire suppression systems to mitigate the effect of a fire and implementing security procedures to protect against hacking) including but not limited to complying with all provisions of this Agreement - in the nature of acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns (excluding Cadmium ISP), vandalism or “hacker” attacks, disease epidemics or pandemics, acts of terrorism or governmental demands or requirements; provided that should a Party’s fail to perform any obligation due to a force majeure event continue for fifteen (15) consecutive or non-consecutive days, the other Party may terminate this Agreement.

14.9 Publicity. Cadmium shall not use Customer’s name, logos, trademarks, or services marks, or any divisions or business units of any of them, in connection with any marketing, advertising, or other publicity without Customer’s express prior written consent, which Customer may provide or withhold in its sole discretion.

14.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission or other electronic means shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or other electronic means shall be deemed to be their original signatures.

14.11 Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.

14.12 Waivers. No purported waiver by any Party of any default by any other party of any term or provision contained herein (whether by omission, delay or otherwise) shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving Party. No such waiver in any event shall be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.

14.13 No remedy set forth in this Agreement (except to the extent specifically stated herein) is intended to be exclusive of any other remedy, and each remedy shall be in addition to every other remedy given hereunder, or now or hereafter existing at law, in equity, by statute, or otherwise.

Exhibit A – Versions, Features and Integrations

"Integration" with Elevate means one or more of the following:

1) User Login Integration. When a User logs in to Elevate, Customer’s database is called and confirms the username and password, and updates the user's record on Elevate. The User data is limited to:

• Basic demographics such as name, email, company title, member ID, etc.
• User Type (a user must have one and only one member type)
• User Roles (a user can have any number of member roles or none)

UserType and User Role can be used to control both access to, and pricing for, products on Elevate. If a User has more than one role, then the most favorable Type/Role combination will be used.

2) Single Sign On (SSO). In combination with User Login Integration, this allows Users who are currently logged in on a site belonging to Customer to be logged in automatically logged on to Elevate, and to have their user information updated, just as in #1 above.

3) Data Reporting API. The Data Reporting API allows Customer’s programmer to access a wide variety of data fields related to users, products, registrations, and user access permissions to products. Cadmium can advise the Customer’s programmers on how to write API queries to view/transfer the data that they need, but it is up to Customer’s programmers to format and import that data into their database, and/or to automate the pulling and importing of that data.

The types of data resources and specific fields within those resources which are currently available via the API can be seen at: https://demo.elevate.commpartners.com/api/reports. Additional data resources and fields can be custom-programmed for a cost to be determined after detailed discussions between Customer’s programmers and Cadmium’ programmers.

4) Registration API. Instead of using Elevate as a "storefront" where users search, browse and buy products, the Registration API allows Customer to handle all of the product descriptions, prices, recommendations, and ecommerce aspects of selling registrations on Customer’s web site or Database. Customer’s programmers must then use the Registration API to push order information (what product was purchased and the user who bought it) to Elevate, and then the User accesses the content on Elevate.

Exhibit B – Software Support and Maintenance

Unless expressly provided for in this Exhibit, in the event of a conflict between the provisions contained in the Agreement and those contained in this Exhibit, the provisions contained in the Agreement shall prevail.

Hosted Services Details

Service Levels

• Availability is a number expressed as a percentage which is calculated by subtracting Unexcused Downtime from Maximum Uptime and dividing that number by the Maximum Uptime in that month.
• Maximum Uptime means the applicable calendar month in its entirety (i.e., 24 hours per day, seven days per week), minus Excused Downtime.
• Excused Downtime means:
  (i) any Downtime for scheduled maintenance outside of standard business hours
  (ii) any Downtime excused in accordance with Section 15.8 (Force Majeure).
• Unexcused Downtime means Downtime minus Excused Downtime.
• Downtime means that the applicable ELEVATE Services are not accessible by Customer and Users or not performing in accordance with the warranty set forth in Section II.10.3(iii).