Terms & Conditions

Plena Master Services Agreement. Date Last Updated: March 15, 2023. BY INDICATING ACCEPTANCE OF THE AGREEMENT BY SIGNING ANY ORDER REFERENCING THIS MSA OR USING THE Plena SERVICES, CUSTOMER ACCEPTS ALL OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO SUCH TERMS AND CONDITIONS, YOU MAY NOT USE ANY Plena SERVICE. This Master Services Agreement (“MSA”) is made by and between Plena Data, Inc. dba Plena and the Customer listed in the Order (as defined below) referencing this MSA. The terms and conditions of this MSA will govern the use and provision of any Service (as defined below) purchased by Customer as described in any Order. Any terms not defined herein have the meaning given to them in the applicable Order. Plena and Customer may each be referred to herein as a “Party” and collectively as the “Parties.” The Parties enter into this MSA as of the effective date set forth in the Order (the “Effective Date”). From time to time, Plena may modify this MSA. Unless otherwise specified by Plena, changes become effective upon renewal of the then-current Subscription Term or upon the effective date of a new Order after the updated version of this MSA goes into effect. Plena will use reasonable efforts to notify Customer of the changes via email or otherwise through the Customer’s account. Customers may be required to click to accept or otherwise agree to the modified MSA, but in any event continued use of any Plena services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.1. DEFINITIONS “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party. For purposes of this MSA, “control” means owning or otherwise controlling more than 50% of the voting interests of an entity. “Agreement” means this MSA, together with all Orders or SOWs issued hereunder. “Ancillary Services” means any professional or technical services provided by or on behalf of Plena to Customer as described in an Order or SOW, including mutually agreed-to implementation, training, or consulting services. “Plena Platform” means Plena’s software-as-a-service offering(s) identified in the applicable Order. “Plena Technology” means the Service, Documentation, Service Data, Plena’s Business Contact Information, Deliverables (excluding Customer Data or any Confidential Information therein or any Customer materials provided to Plena to perform the Ancillary Services), and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated. “Barred Data'' means personally-identifiable information (other than Business Contact Information) that consists of: (i) government issued identification number of any kind; (ii) health, genetic, biometric record or data of any kind; (iii) personal financial or bank account number, credit or debit card number, with or without any required security code, access code or any personal identification number or password that would permit access to the individual's financial account; (iv) any employee or human resources records; and/or (v) any consumer or household data of any kind. “Business Contact Information” means the business contact information of employee or contractor of Plena or Customer or their respective Affiliates, provided by a Party to the other Party, which may include, in the providing Party’s sole discretion, name, business title, business phone number, business email address, and business office address. “Confidential Information” means all non-public information disclosed by a Party (“Disclosure'') to the other Party (“Recipient”), whether disclosed orally or in writing, that is designated confidential or should be reasonably known by the Recipient to be confidential given the nature of the information or the circumstances of the disclosure. Customer’s Confidential Information shall include all Customer Data and Business Contact Information provided by Customer to Plena. Plena’s Confidential Information shall include all Plena Technology. Confidential Information does not include any information that: (i) was rightfully known to Recipient prior to disclosure by Disclosure without breach of any obligation owed to Disclosure; (ii) is or becomes public knowledge without breach of any obligation owed to Disclosure; (iii) is lawfully received from a third party without breach of any obligation owed to Disclosure; or (iv) is independently developed by the Recipient without use of or reference to the Disclosure’s Confidential Information. “Customer Data” means all data and information submitted by or on behalf of Customer into the Services, and any modifications made thereto in the course of the operation of the Services as provided to Plena. Customer Data may not include any Barred Data. “Deliverables” means any work product(s) created by or on behalf of Plena in connection with the provision of the Ancillary Services. “Documentation” means Plena’s then-current technical documentation, specifications, and user manuals for the Services, as made available by Plena. “Fees” means the fees payable by Customer for the Service or Ancillary Services, as set forth in an Order. “Order” means the Plena ordering document executed by both Parties which references this MSA and specifies the Services to be made available and the Fees to be paid. “Security Policy” means Plena’s technical, administrative, and physical safeguards for the Service that Plena and its hosting providers implement, consistent with at least SSAE 16 SOC 2 Type I standards. “Service” means the Plena Platform, Ancillary Services, Plena Source Available Software (as defined below), and any other services and activities related to providing the foregoing. “Service Data” means any data or logs relating to the operation, performance, environment, vulnerabilities, integrity, security, support and/or usage of the Service. For clarity, Service Data does not include any Customer Data. “SOW” means a statement of work or other Plena ordering document executed by both Parties which references this MSA and specifies the Ancillary Services ordered pursuant to Section 10 (Ancillary Services) and the Fees to be paid. “Subscription Term” means the set term of access and use of the Plena Platform specified on an Order. “Third-Party Applications” means any applications, products, services, or content that interoperate with the Service or can be used in connection with the Service and that are provided by Customer or a third-party. “Use Limits” means any numerical limits on units of measure referenced in the Order, including but not limited to the number of authorized Users or certain traffic (operations) processed by the Service or any other Plena Technology in use by Customer (whether procured hereunder or any other agreement with Plena or as an open-source component). “User” means any Customer employee or contractor or authorized agent designated and granted access to the Service by Customer. 2. USE OF SERVICE 2.1. Provision and Access. Subject to the terms and conditions of this Agreement and during the Subscription Term, Plena grants Customer a non-exclusive, non-transferrable, and non-sublicensable right for Users to access and use the Plena Platform solely for Customer’s internal business operations in accordance with the Documentation and any restrictions set forth on the Order (including any restrictions on number of Users or Use Limits). Customers shall be fully responsible for each User’s compliance with this Agreement. Customer acknowledges that the Plena Platform is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying software code. 2.2. Affiliates. Customer’s Affiliates may enter into Orders directly with Plena referencing the MSA. By such Affiliate entering into an Order, the Affiliate agrees to be bound by the terms of the MSA as if it were an original party hereto, and, for purposes of such Order, shall be deemed “Customer” hereunder. 2.3. Third-Party Applications. The Service is designed to collect and analyze Customer Data that resides in Third-Party Applications. Customer is solely responsible for obtaining and maintaining access to such Third-Party Applications from the applicable providers. Plena is not liable to Customer and shall not provide Customer with any refund, credit, or other compensation for any errors, delays, downtime, or nonperformance of the Service caused by the unavailability of the Third-Party Application, or if Customer terminates its subscription or license to the Third-Party Application. If Customer establishes an integration between any Third-Party Application and the Service, Customer hereby authorizes Plena to access and transmit Customer Data to and/or from the Third-Party Application during the Subscription Term as part of the provision of the Service, subject to Plena’s other obligations under this Agreement incident to such transfer. Customer acknowledges that Third-Party Application providers may have access to Customer Data in connection with the interoperation and further acknowledges that Plena is not liable or responsible for any use, disclosure, modification, or deletion of such Customer Data. 2.4. General Restrictions. Customer will not: (a) sell, rent, lease, license, distribute, provide direct access to, sublicense, or otherwise make available the Service (or any Deliverables, if applicable) to a third-party (except as set forth in the Documentation for Service features expressly intended to enable Customer to provide third-parties with access to Customer Data, or as set forth in an SOW, as applicable), or in a service bureau or outsourcing offering; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service (except to the extent that applicable law prohibits or limits reverse engineering restrictions, in which case Customer must first notify Plena); (c) remove or obscure any proprietary or other notices contained in the Service; (d) copy, reproduce, or modify the Service; (e) breach, circumvent, disable or tamper with the security of the Service or any API or SDK made available by Plena to facilitate interoperability with a Third-Party Application; (f) access the Service via any automated system, web crawler or non-human user other than through the API or SDK made available by Plena to facilitate interoperability with a Third-Party Application; (g) introduce into the Service any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (h) access or use the Service to monitor the availability, performance or functionality of the Service for any competitive purposes or for the purpose of building a competitive product or service; or (j) use the Service to process Barred Data, or to send spam or engage in other unlawful communications, or to process infringing or otherwise unlawful or unauthorized Customer Data. Customer agrees to use the Service in accordance with laws, rules and regulations directly applicable to Customer and the Customer Data. All rights in the Service not expressly granted herein are reserved. 2.5. Source Available Software. Customer acknowledges that Plena makes available certain software packages under the brand names “Plena RPA Platform”, “Plena Prospector”, and “Plena Harvester” (as hereafter rebranded by Plena in its sole discretion) (“Plena Source Available Software”) under the source-available license located at https://www.elastic.co/licensing/elastic-license (“Elastic License”). To the extent that Customer elects to use the Plena Source Available Software separately from this Agreement, such Source Available Software is and will remain subject solely to the Elastic License and not this Agreement, and nothing in this Agreement is intended to vitiate any rights the Customer may have, independent of this Agreement, under such Elastic license. However, to the extent that Plena uses and delivers the Source Available Software as part of the Plena Platform or otherwise in connection with the Service, such Source Available Software will be subject to the terms of this Agreement and not the Elastic License. The foregoing notwithstanding, Customer acknowledges that any violation of the conditions of the Elastic License for Plena Source Available Software will be considered a material breach of this Agreement. 3. DATA 3.1. Rights in Customer Data. As between the Parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Plena and its Affiliates a non-exclusive, worldwide, royalty-free right to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third-party service providers acting on Plena’s behalf (such as Plena’s hosting services provider), solely to the extent necessary to: (a) provide, maintain, and update the Service for Customer and Users; (b) address technical issues or in connection with support matters; (c) perform Ancillary Services ordered by Customer; (d) comply with applicable law; or (e) as expressly permitted in writing by Customer. 3.2. Uploads of Customer Data. Customer will be responsible for uploading all Customer Data to the Service and will provide such Customer Data in a format consistent with the requirements set forth in the Documentation. Errors in loading Customer Data into the applicable Service due to defective media, erroneous data, erroneous configurations, or failure to meet such requirements may cause Customer Data to be rejected by the Service. 3.3. Customer Obligations. Customer will ensure that its use of the Service and all Customer Data is at all times compliant with this Agreement, Customer’s privacy policies, and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of data. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer will require its Users to keep user ID and password information strictly confidential and not share such information with any unauthorized person. Plena will have no liability for actions taken using Customer’s user IDs and passwords, including any unauthorized use or access caused by breach of the foregoing obligation leading to misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any of its Users who are no longer authorized to access the Service. 3.4. Business Contact Information. To the extent that the Parties share Business Contact Information under this Agreement, such Business Contact Information shall be considered the Disclosure’s Confidential Information and used solely in connection with the business relationship established by this Agreement, and as necessary to comply with applicable law. The Parties hereby acknowledge and agree that the processing of Business Contact Information by the Recipient is incidental. The Parties agree to maintain updated Business Contact Information that is necessary for the continuation of the business relationship (for example, the individual email address to whom invoices are sent). 4. SECURITY. Customer acknowledges and agrees that the Service is not designed to process Barred Data, including but not limited to, any ‘personal data’ as defined by applicable privacy laws or regulations (other than Business Contact Information used for User logins consisting of a User’s business email, which is subject to Section 3.4 above). Plena assumes no duty or liability under this Agreement with respect to any laws or regulations governing the processing of Barred Data. With respect to Customer Data properly submitted to the Service for processing, Plena will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data, in accordance with the Security Policy attached hereto as Schedule 1. 5. INTELLECTUAL PROPERTY 5.1. Plena Technology. Customer agrees that Plena and its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Plena Technology. Except for the express limited rights set forth in this Agreement, no right, title or interest in any Plena Technology is granted to Customer. Notwithstanding anything to the contrary herein, Plena may freely use and incorporate into Plena’s products and services any suggestions or other feedback provided by Customer or Users relating to the features and functions of the Service (“Feedback”). Feedback as used by Plena shall never: (a) identify Customer or its Users or be used in any way that permits such identification, or (b) incorporate or use any Customer Data or Business Contact Information. Feedback is provided at Customer’s sole option on an “AS IS” basis without warranty, indemnity, or liability of any kind. 5.2. Service Data. Notwithstanding anything to the contrary in this Agreement, Plena has the right to collect and use Service Data to develop, improve, support, and operate its products and services during and after the Term. This Section does not give Plena the right to identify Customer as the source of any Service Data without written permission from Customer. Service Data will never incorporate or use any Customer Data or Business Contact Information. 6. CONFIDENTIALITY. 6.1. Confidentiality. The Recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any of the Disclosure’s Confidential Information of the Disclosure for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosure in writing, limit access to Confidential Information of the Disclosure to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations to the Recipient containing protections not materially less protective of the Confidential Information than those herein. If Recipient is required by law or court order to disclose Confidential Information, then Recipient shall, to the extent legally permitted, provide Disclosure with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The provisions of this Section 6 will supersede any non-disclosure agreement by and between the Parties and/or their Affiliates (whether entered into before, on or after the Effective Date) that would purport to address the subject matter of this Agreement. 6.2. Equitable Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient, the Disclosure will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. 7. FEES AND PAYMENT; TAXES; PAYMENT DISPUTES 7.1. Fees and Payment. Fees and payment terms will be specified in the applicable Order. If no payment terms are noted on the Order, payment of undisputed Fees shall be made within thirty (30) days following receipt of Plena’s invoice. Except as expressly stated in this Agreement, all payment obligations are noncancelable, and Fees are non-refundable and payable in United States dollars. 7.2. Taxes. Fees do not include Taxes. For purposes of this Agreement, “Taxes'' means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction. Customer is responsible for paying all Taxes associated with its purchases hereunder other than taxes based on income, property, or employees of Plena. If Plena has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Plena will invoice Customer and Customer will pay that amount unless Customer provides Plena with a valid tax exemption certificate authorized by the appropriate taxing authority. 7.3. Payment Disputes. Plena will not exercise its rights under Section 8.2 (Termination for Cause) or Section 8.5(a) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the Parties are unable to resolve such a dispute within thirty (30) days, Plena may proceed with a suspension under Section 8.5 (a), and each Party shall have the right to exercise termination or any other remedies it may have under this Agreement, at law or in equity. For clarity, any undisputed amounts must be paid in full. 8. TERM AND TERMINATION 8.1. Term of MSA. This MSA will commence on the Effective Date and will remain in effect until terminated in accordance with this Section 8. If no Order, SOW, or Retrieval Right is currently in effect, either Party may terminate this MSA upon written notice to the other Party. 8.2. Order Subscription Terms. The Subscription Term of an Order will be as specified in the Order. 8.3. Termination for Cause. Either Party may terminate this Agreement (including all related Orders or SOWs) for cause upon thirty (30) days’ written notice if the other Party materially breaches this Agreement and fails to correct the breach within 30 days from the date such written notice is deemed given (as set forth in Section 14.5). Additionally, either Party will be entitled to terminate this Agreement (including all related Orders or SOWs) immediately upon written notice if the other Party becomes (or is reasonably likely to become) bankrupt, or files a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of its assets, or if an involuntary petition for any of the foregoing is filed with respect to the other Party and not dismissed within sixty (60) days, or if the business of the other Party shall be placed in the hands of a receiver, assignee or trustee for the benefit of creditors, whether by the voluntary act of the other Party or otherwise. For any termination of this Agreement by Customer for cause in accordance with this Section 8.3, Customer shall be entitled to a pro-rata refund of any unused Fees that Customer has pre-paid for the Service. 8.4. Effect of Termination; Customer Data Retrieval. Upon the expiration or termination of this Agreement (including any related Order or SOW) for any reason: (a) any amounts owed to Plena prior to such termination, and all completed but unpaid Ancillary Services fees will be immediately due and payable; (b) except for any applicable Retrieval Right (defined below), all rights granted to access and use the Service will immediately cease to exist; and (c) except for any applicable Retrieval Right, Customer will immediately discontinue all use of the Service. Upon written notice to Plena and subject to Customer’s compliance with its obligations hereunder, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement (including any applicable Order or SOW) to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, the terms of this Agreement shall continue to be in effect for the duration of the Retrieval Right. After the Retrieval Right, Plena shall have no further obligation to make Customer Data available to Customer (and will promptly delete the Customer Data), and Customer will have no further access to Customer Data or the Service. Upon termination or expiration of this Agreement, each Party as a Recipient will promptly return or destroy any of the Disclosure’s Confidential Information in Recipient’s possession or under its control; provided however, that Recipient may retain copies of the Confidential Information as necessary to comply with an accounting, legal, security, fiscal, privacy or other regulatory or auditing standard or requirement, in which case the confidentiality terms of this Agreement shall continue to apply for the period of retained possession of the relevant item of Confidential Information. 8.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.4 (General Restrictions), 5 (Intellectual Property), 6 (Confidentiality), 7.1 (Fees and Payment), 7.2 (Taxes), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 12 (Indemnification), 13 (Limitation of Remedies and Damages), and 14 (General Terms). 8.6. Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Plena reserves the right to suspend Customer’s or any or all of Users’ access to the Service, in whole or in part, if: (a) Customer is thirty (30) days or more overdue on a payment (excluding amounts disputed in reasonable and good faith), provided Plena has given Customer 10 or more days’ prior notice; (b) Plena, acting reasonably and in good faith, deems such suspension necessary as a result of Customer’s breach of Section 2.4 (General Restrictions), 2.5 (Source Available Software), or Section 3.3 (Customer Obligations); (c) Plena, acting reasonably and in good faith, deems such suspension necessary as a result of Customer substantially exceeding any Use Limits or continuing to exceed Use Limits after Plena has given Customer prior notice of such Use Limits being exceeded; (d) Plena reasonably determines suspension is necessary to avoid material harm to Plena or its other customers, including if the Service is experiencing denial of service attacks, viruses, security issues, mail flooding, or other attacks or disruptions outside of Plena’s control; or (e) as required by law or at the request of governmental entities. To the extent reasonably feasible given the nature of the issue giving rise to the suspension Plena will (i) notify Customer in advance of a suspension, (ii) attempt to limit the suspension to the affected Users or functionality, and (iii) immediately restore access to the Service as soon as the issue giving rise to the suspension has been resolved. Without limiting the generality of this Section, Plena shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Service pursuant to this Section 8.6. 9. WARRANTY 9.1. Service Warranty. Plena warrants that (a) the Service will operate in substantial conformity with the applicable Documentation during the Subscription Term, and (b) all Ancillary Services will be performed in a professional and workmanlike manner in accordance with industry standards and the agreed-to specifications in the Order or SOW. In the event of a breach of this warranty, Plena will use commercially reasonable efforts to correct the reported nonconformity, at no charge to Customer, or if Plena is unable to do so within a reasonable period not to exceed thirty (30) days, either Party may terminate the applicable Order or SOW, and Customer will receive a pro-rata refund of any unused Fees that Customer has pre-paid for the Service or Ancillary Services. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply: (i) unless Customer makes a claim in writing within thirty (30) days of the date on which Customer first notices the non-conformity, or (ii) if the error was caused by misuse, Barred Data, unauthorized modifications, or Third-Party Applications. 9.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE, SUPPORT, AND ALL ANCILLARY SERVICES ARE PROVIDED “AS IS” AND Plena MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. Plena DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERRORFREE, NOR DOES Plena WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. Plena SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRDPARTY PROVIDERS WITH WHOM CUSTOMER SEPARATELY CONTRACTS. Plena DOES NOT MAKE ANY WARRANTIES AND SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THIRD-PARTY APPLICATIONS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. 10. SUPPORT AND AVAILABILITY. During the Subscription Term, Plena agrees to provide Customer with the technical support and service levels (collectively, “Support”) for the Plena Platform in accordance with the Plena support policy attached hereto as Schedule 2. 11. ANCILLARY SERVICES. If Ancillary Services are purchased in an Order or SOW, Plena will provide such Ancillary Services to Customer, which may be performed by Plena and/or Plena’s approved subcontractors. The scope of Ancillary Services will be set forth in the Order or SOW, and unless expressly stated otherwise in the Order or SOW, any timelines provided are good faith projections and not guarantees. Customer may use any Deliverables in support of authorized use of the Service, but Plena will retain all right, title, and interest in and to any such Deliverables, including any derivative, enhancement or modification thereof created by or on behalf of Plena, but excluding any Customer Data or Customer’s Confidential Information which may be incorporated into or displayed in such Deliverables. 12. INDEMNIFICATION 12.1. Indemnification by Plena. Plena will defend Customer from and against any claim brought by a third-party to the extent alleging that Customer’s use of the Plena Platform as permitted hereunder infringes or misappropriates such third-party’s intellectual property rights, and Plena will indemnify Customer for any damages and costs finally awarded against Customer or agreed in settlement by Plena (including reasonable attorneys’ fees) arising from such claim; provided however, that Plena will have no liability under this Section to the extent any such claim arises from: (a) the modification of the Service by any party other than Plena; (b) the combination of the Service with products, data, or processes licensed or procured from a party other than Plena; (c) Customer’s or any of its Affiliates’ or Users’ unlawful acts, negligence, misconduct, or breach of this Agreement; or (d) any action arising as a result of Customer Data, Barred Data, ThirdParty Applications or any deliverables or components not provided by Plena. If Customer’s use of the Plena Platform is (or in Plena’s opinion is likely to be) enjoined, if required by settlement or if Plena determines such actions are reasonably necessary to avoid material liability, Plena may, in its sole discretion, either: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Plena Platform; or if (i) and (ii) are not commercially reasonable, (iii) terminate this Agreement and provide Customer with a pro-rata refund. 12.2. Indemnification by Customer. Customer will defend Plena from and against any claim by a third-party arising from or relating to any Customer Data, Barred Data, or any product or service offered by Customer that is managed, monitored or developed by use of the Service, and will indemnify and hold harmless Plena from and against any damages and costs awarded against Plena or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim. 12.3. Procedures. In the event of a potential indemnity obligation under this Section 12, the indemnified Party will: (a) promptly notify the indemnifying Party in writing of the claim, (b) allow the indemnifying Party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying Party’s sole cost and expense, and (c) upon request of the indemnifying Party, provide all necessary cooperation at the indemnifying Party’s expense. Failure by the indemnified Party to notify the indemnifying Party of a claim under this Section 12 shall not relieve the indemnifying Party of its obligations under this Section 12, however the indemnifying Party shall not be liable for any litigation expenses that the indemnified Party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying Party in accordance with this Section. The indemnifying Party may not settle any claim in any matter that would require obligation on the part of the indemnified Party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified Party, without the indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 12 will not apply if the indemnified Party settles or makes any admission with respect to a claim without the indemnifying Party’s prior written consent. 12.4. Exclusive Remedy. This Section 12 states the indemnifying Party’s sole liability, and the indemnified Party’s exclusive remedy, for any type of claim described in this Section 12. 13. LIMITATION OF REMEDIES AND DAMAGES. 13.1. EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. 13.2. LIABILITY CAP. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S (I) BREACH OF CONFIDENTIALITY, (II) INDEMNIFICATION OBLIGATIONS, (III) BREACH OF OBLIGATIONS PERTAINING TO CUSTOMER DATA (INCLUDING BUT NOT LIMITED TO, AS A RESULT OF ANY BREACH OF THE SECURITY POLICY OR VIOLATION OF ANY PRIVACY OR SECURITY LAW), (IV) MISAPPROPRIATION, INFRINGEMENT, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (V) FRAUD OR WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER AND ITS AFFILIATES TO Plena HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE (THE “GENERAL LIABILITY CAP”). 13.3. EXCLUDED CLAIMS. EXCEPT AS PROVIDED IN THIS SECTION 13.3, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ALL EXCLUDED CLAIMS EXCEED THREE TIMES (3X) THE GENERAL LIABILITY CAP. NOTWITHSTANDING THE FOREGOING, LIABILITY ARISING FROM EITHER PARTY’S (I) FRAUD OR WILLFUL MISCONDUCT OR (II) MISAPPROPRIATION, INFRINGEMENT, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, WILL NOT BE LIMITED BY THIS SECTION 13. 13.4. LIMITATION SCOPE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 13 WILL APPLY WITH RESPECT TO ALL LEGAL THEORIES OF LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 13 ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT THEY HAVE RELIED ON THESE EXCLUSIONS AND LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. 14. GENERAL TERMS 14.1. Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Each Party may assign this Agreement to an Affiliate, or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such Party’s assets or voting securities. Each Party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void. 14.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such 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 full force and effect. 14.3. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. 14.4. Dispute Resolution; Governing Law; Jurisdiction and Venue. Each Party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other Party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the Parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The Parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 12 (Indemnification) or prior to a Party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information. This Agreement will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in San Francisco, California and both Parties hereby submit to the personal jurisdiction of such courts. 14.5. Notice. All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service. Email notifications to Plena shall be to legal@Plena.com. Email notifications to Customer shall be to the email address or addresses specified on the Order and as Customer may provide to Plena. 14.6. Third-party Beneficiaries. There are no third-party beneficiaries under this Agreement. 14.7. Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such Party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. In the event either Party experiences a force majeure condition as described herein and cannot solve the same within thirty (30) days, then the other Party shall have the right to terminate this Agreement and all affected Orders on written notice to the non-performing Party. If Customer terminates this Agreement and affected Orders as a result of a force majeure condition experienced by Plena that Plena is unable to cure within the foregoing period (including by implementation of a business continuity or disaster recovery plan), then Plena shall provide Customer with a pro-rata refund of unused Fees. 14.8. Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. 14.9. Export Control. Each Party will comply with all applicable export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) each Party represents and warrants to the other that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Customer will not (and will not permit any third-parties to) access or use any Service in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer will not submit to the Service any information or data that is controlled under the U.S. International Traffic in Arms Regulations. 14.10. Federal Government End Use Provisions. Plena provides the Service, including all related software and, to the extent applicable the Plena Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Plena to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. 14.11. Electronic Signature, Counterparts. This Agreement, including all Orders and SOWs, may be executed electronically and in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. 14.12. Entire Agreement. This Agreement, including all Orders and SOWs, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all prior and contemporaneous agreements, proposals, or representations, written or oral, relating to the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order, the terms of such Order will prevail. No terms or conditions stated in any Plena document not referenced herein, or any Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.

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