Master Client Agreement

Q4 INC.

Master Client Agreement

This Master Client Agreement (the “Agreement”) is between Q4 Inc. (“Q4”) and Client as of the Effective Date (as defined in Section 6(a) below), and governs Client’s use of Q4’s Subscription Services and certain One-Time Services, as specified in one or more ordering documents signed by the parties, including any exhibits thereto (each, an "Order Form", which are incorporated by reference herein). Q4 reserves the right, at any time, to update the Agreement, in its sole discretion. If Q4 does so, it will post the modified Agreement at www.q4inc.com/MasterClientAgreement.

Q4’s “Subscription Services” means the services Q4 offers on a subscription basis, including software services through which Q4 hosts and makes available for access and use of its Applications, as well as certain data, communication and intelligence services. Subscription Services may also include the making available of a “Client Website” (i.e., a Client investor relations or corporate website, as specified in an Order Form) for end users to access via the public Internet. “Applications” means Q4’s applications, tools and software, including its website content management software application (“CMS”), and any Updates to such applications, tools and software provided by Q4 as part of the Subscription Services (collectively, “Applications”).

Q4’s “One-Time Services” means certain one-time services as identified in an Order Form, such as implementation, programming, consultation, design, and any other services provided by Q4 (the One-Time Services and the Subscription Services collectively, the “Services”).

In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control. All capitalized terms used but not defined herein shall have the meanings attributed in the Order Form.

1. ONE-TIME SERVICES

Subject to the terms and conditions of this Agreement, from and after the Effective Date, Q4 hereby agrees to perform the One-Time Services as, and to the extent, specified in the Order Form. Q4 represents and warrants that the One-Time Services will be performed in a professional and workmanlike manner.

2. SUBSCRIPTION SERVICES

  1. Subject to the terms and conditions of this Agreement, Q4 will make the Subscription Services specified in an Order Form available to Client during the Subscription Services Term identified in the applicable Order Form. Q4 will make the Client Website available in accordance with the service level schedule attached to this Agreement as Schedule “A” (the “Service Level Provisions”).
  2. During the Subscription Services Term, Q4 will provide, in respect of a Client Website, the support services (“Support”) described in the Service Level Provisions and in accordance with the Service Level Provisions.
  3. To the extent specified in an Order Form, Q4 may issue (i) administrator accounts for the maximum concurrent number of administrative users for the specified Subscription Services (“Admin Users”), and/or (ii) user accounts for specified named users to access and use specified Subscription Services (“Named Users”). Client may make access to and use of the applicable Subscription Services available only to such maximum number of Admin Users and/or only such Named Users. With respect to the CMS, upon Client’s request, Q4 will also issue general user accounts to Client’s employees and contractors that Client wishes to have remote access to and use of the CMS via the Subscription Services (such general CMS users, collectively with the Admin Users and Named Users, the “Permitted Users”). Client is responsible for protecting the security and integrity of all usernames and passwords used to verify a Permitted User’s credentials to access and use the Subscription Services pursuant to this Agreement and an Order Form (“Access Methods”). Client shall hold in strict confidence all Access Methods. Client is responsible for any acts or omissions occurring under any Access Methods.
  4. Client shall access and use the Subscription Services in compliance with Q4’s acceptable use policy attached to this Agreement as Schedule “B” (“AUP”).
  5. Client acknowledges that from time to time Q4 may apply updates to an Application and/or the Subscription Services and that such updates may result in changes in the appearance and/or functionality of the Application and/or the Subscription Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, services and features, Q4 shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to an Application and/or Subscription Services (collectively, the “Updates”).
  6. Client acknowledges that the Applications and the Subscription Services interoperate with several third party tools and content (“Third Party Tools”)”), and that the Applications and/or the Subscription Services may be highly dependent on the availability of such Third Party Tools. If at any time any Third Party Tools cease to be available to Q4 on reasonable terms, Q4 may cease to provide such features to Client (an “API Change”).In the event that any API Change has a material negative impact on Client’s use of an Application, Client shall have the right, exercisable within thirty (30) days of an API Change, to terminate the Order Form for the Application impacted by the API Change, by providing Q4 with not less than ninety (90) days’ notice of its intention to terminate the applicable Subscription Services for use of such Application.

3. CLIENT PROVIDED CONTENT; CLIENT OWNERSHIP

  1. As between Q4 and Client, Client owns all text, images, audiovisual media and other forms of content and intellectual property (collectively, "Client Content") that Client posts, uploads, transmits, or makes available on or through the Subscription Services or otherwise provides to Q4 in connection with the Services.
  2. Client may also post, upload, transmit, or make available through the Subscription Services, or otherwise provide to Q4 in connection with the Services, text, images, audiovisual media and other forms of content and intellectual property from third parties (“Third Party Content” and together with Client Content, “Content”).
  3. Client assumes responsibility for any and all Content that Client posts, uploads, transmits, or makes available through any Subscription Services or otherwise provides to Q4 in connection with the Services.
  4. Notwithstanding Section 3(a) and Section 3(b), Client hereby grants to Q4 a non-exclusive right and license during the Term to use, reproduce, adapt and display Content on and through the Subscription Services, including any Client Website, solely for purposes of performing its obligations under this Agreement.
  5. Client owns any items specifically identified in the Order Form as being owned by Client, as well as any creative content (e.g. icons) commissioned by Client for creation by Q4 specifically for incorporation into a Client Website (as agreed to by the parties in writing) (“Deliverables”).

4. Q4 OWNERSHIP

  1. As between the parties, all right title and interest in and to the Subscription Services, the Q4 Materials (including, without limitation, all intellectual property rights and other proprietary rights therein) and, except for Deliverables, any ideas, inventions, tools, routines, subroutines, processes, methods, designs and know-how, whether or not copyrightable or patentable, created or developed by Q4 in the performance of the One-Time Services (“Work Product”)are and shall remain the sole and exclusive property of Q4 and its affiliates. This Agreement does not grant any intellectual property right or license under any intellectual property right in or to the Subscription Services, Q4 Materials or Work Product except as may be otherwise specifically stated herein. All rights not expressly granted by Q4 to Client under this Agreement are reserved. “Q4 Materials” means the Applications, the information technology infrastructure used by or on behalf of Q4 in performing and/or making available the Subscription Services, and any and all other technology, know-how, information, data, content, materials, and other property pertaining thereto.
  2. To the extent that the Subscription Services include Stock Surveillance Services, Client acknowledges and agrees that the Stock Surveillance Services and any data or reports resultant therefrom shall only be used for the lawful, internal business purposes of Client and Client may not provide the use or benefit of the Stock Surveillance Services for or on behalf of any third party without Q4’s prior written consent.

5. FEES

  1. Client shall pay to Q4 the fees (the “Fees”) plus applicable taxes, as specified, and in accordance with the terms of the applicable Order Form. Unless otherwise specified in the Order Form, in the event that the Services include Stock Surveillance Services, Client shall: (i) reimburse Q4 for all expenses incurred in obtaining custodial bank listings on behalf of Client in connection with the Stock Surveillance Services; and (ii) be responsible for paying to The Depository Trust Corporation (“DTC”), in a timely manner, for all amounts charged by DTC to Client in connection with the Stock Surveillance Services, such payments being a condition precedent to Q4 fulfilling its obligations hereunder.
  2. All amounts owing to Q4 hereunder are due and payable within thirty (30) days of the date of the applicable invoice.
  3. In the event of any failure by Client to make any payment under this Agreement, Client shall be responsible for all reasonable expenses (including legal fees) incurred by Q4 in collecting such amounts. Any late payments shall accrue interest at the rate of one and a half percent (1½%) per month (or the highest rate permitted by law, if less). Client further acknowledges and agrees that notwithstanding anything to the contrary herein or the applicable Order Form, Q4 shall have no obligation to make any final production version of any Subscription Service available for access unless and until Q4 has received any Setup Fees that are due and payable prior to the Subscription Services Commencement Date (for clarity, with respect to a Client Website, the final production version means the version of the Client Website made available via the CMS to the public). Q4 reserves the right to terminate this Agreement or cease providing any Services hereunder in the event Client fails to pay any fees when due.
  4. Any Fees that are recurring subscription fees shall automatically increase by five percent (5%) at the start of each Renewal Term (as defined below).
  5. Client shall pay all applicable taxes and assessments arising on or in connection with the provision of the Services under this Agreement (other than taxes based upon the net income of Q4).

6. TERM AND TERMINATION; SUSPENSION

  1. The term of this Agreement (the “Term”) will commence on the Effective Date indicated above and shall continue until the earlier of: (i) the expiration or termination of the last remaining Order Form; and (ii) termination of this Agreement in accordance with the terms hereof. The issuance and acceptance of an Order Form after the completion of a prior Order Form shall reinstate this Agreement.
  2. The Subscription Services shall commence on the earlier of: (i) the Start Date (as such term is defined in the applicable Order Form) for such Subscription Services; and (ii) the date that Client is first granted access to the final production version of such Subscription Service (the date the Subscription Services commence is the “Subscription Services Commencement Date”), and shall be valid thereafter for the period specified in the Order Form (or, if no period is specified in the Order Form, for a period of two (2) years) (the “Initial Subscription Services Term”), unless earlier terminated in accordance with this Agreement.
  3. Following the Initial Subscription Services Term, the applicable Order Form(s) shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party delivers at least ninety (90) days written notice, prior to the expiration of the Initial Subscription Services Term (or the applicable Renewal Term), to the other party of its intent to not renew the applicable Order Form.
  4. Either party may terminate this Agreement or any Order Form immediately upon written notice if any of the following events occur:
    1. the other party materially breaches or materially fails to perform any of its obligations under this Agreement, and such breach or failure to perform remains unremedied (if capable of being remedied) for a period of thirty (30) days after the other party has been given written notice thereof; or
    2. the other party becomes bankrupt, insolvent, makes a composition or arrangement with its creditors, has a receiver, administrator, administrative receiver or other encumbrancer take possession of or control over any substantial part of its assets, or otherwise undergoes any event analogous to any event referred to above in any jurisdiction.
  5. Upon termination or expiration of:
    1. any Order Form for Subscription Services, Client shall have thirty (30) days from the effective date of termination or expiration to cease accessing and using the terminated or expired Subscription Services and any Q4 Materials (the “Wind Down Period”). To the extent that Client accesses and uses the Subscription Services or any Q4 Materials during the Wind Down Period as permitted herein, all obligations and responsibilities of Client in this Agreement shall continue in full force and effect during the Wind Down Period. Client specifically acknowledges and agrees that Q4 will permanently and securely delete and destroy all Content remaining in the Subscription Services after the Wind Down Period;
    2. any One-Time Services, and/or expiration of the Wind Down Period for Subscription Services, then Client will (A) no longer have any rights to access or use any terminated or expired Services or Q4 Materials; and (B) pay all unpaid Fees and expenses incurred for Services received or used prior to termination/expiration, and any applicable taxes, and, other than in the event of termination by Client pursuant to Section 6(d) above (insolvency or material breach), Client will pay all Fees that would have become payable during the remainder of the term in which the termination takes effect; and
    3. this Agreement, then (A) Client shall, at Q4’s option, promptly return to Q4 all copies of any tangible and intangible materials reflecting or constituting the Q4 Confidential Information and any Q4 Materials, or destroy all copies in its possession. Upon request, Client shall certify to Q4 in writing that it has complied with the foregoing; and (B) Q4 will destroy all copies of the Content and Client Confidential Information in Q4’s possession pursuant to Q4’s standard destruction processes. Upon request, Q4 shall certify to Client in writing that it has complied with the foregoing. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control, a party may retain the other party’s Confidential Information (a) in tangible form, in its then current state solely to the extent and for so long as required by applicable law, rule or regulation; and (b) in electronic form, in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course. All such retained information and materials will remain subject to all confidentiality requirements of this Agreement.
  6. If at any time Q4 determines that: (i) provision of any aspect of any Services or Q4 Materials, or any equipment or facilities necessary to provide same will contravene any local, state, national or international law or regulation or major carrier use policies; (ii) action is necessary to prevent or protect against fraud, or otherwise protect the Services or Q4 Materials or any of its equipment or facilities from abuse or degradation or to protect its personnel or other Clients (including, without limitation, in the event that Client is being investigated or prosecuted by a government or regulatory agency); (iii) Q4 is unable to secure the necessary services, equipment or facilities to provide Client with the Services or Q4 Materials; or (iv) Client is in breach of Section 2(c), 2(d) or 5; then Q4 may immediately and without notice or liability to Client terminate this Agreement, or the applicable Order Form or the applicable Service, or suspend or disable Client’s (and its users’) access to and receipt of the Services. Except with respect to termination for any of the reasons specified in Section 6(f)(iv), if Client has pre-paid any Fees for the period following the effective date of such termination, Q4 shall, without further liability to Client, refund to Client on a pro rata basis the unearned/unamortized Fees allocable to such Service or Q4 Materials so terminated.
  7. The provisions of Sections 2(d), 3(a), 3(c), 3(e), 4, 5, 6(e), 6(f), 6(g), 7, 8, 9 and 10 shall survive the termination of this Agreement. In addition, the provisions of this Agreement that, either expressly or by their nature, are intended to remain in effect beyond the termination of this Agreement, shall survive its termination.

7. CONFIDENTIALITY AND NON-DISCLOSURE TERMS

  1. Each Party (the “Receiving Party”) agrees that it shall not, at any time during or after the Term, disclose or disseminate to any other person or entity, or use except as permitted by this Agreement, any information regarding the business, data, processes, technology, software or products of the other party (the “Disclosing Party”) obtained during the course of performance under this Agreement (the “Confidential Information”). Confidential Information shall not include information which: (i) is, or has become, publicly available without breach of this Agreement or any other confidentiality obligation; (ii) has been given to the Receiving Party by a third party with a legal right to so disclose; (iii) was known to the Receiving Party at the time of disclosure as evidenced by its written records; or (iv) was independently developed by the Receiving Party without reference to or use of the Confidential Information. The parties hereto acknowledge that (A) the Confidential Information of Q4 shall include, but not be limited to, the Work Product, Q4 Materials and any related materials, the terms, conditions and pricing of this Agreement (including any applicable Order Forms), Q4’s methodologies, technology, infrastructure, security practices, policies, products, test results and reports, Q4’s third party provider certificates and attestations, and Q4’s answers to any Client security questionnaires and assessments, and (ii) the Confidential Information of Client shall include, but not be limited to reports, documents, and any other non-public data provided by Client to Q4 pursuant to the terms of this Agreement.
  2. Each Receiving Party (i) agrees that the Receiving Party has no right to use or retain the Confidential Information for any purpose other than to exercise its rights or carry out its obligations pursuant to this Agreement; (ii) shall safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the procedures that Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care; and (iii) shall ensure that any Confidential Information obtained from the Disclosing Party shall be disclosed only to the Receiving Party's employees, contractors and agents on a "need-to-know" basis, and that such employees, contractors and agents shall be bound by an obligation of confidentiality similar to the obligations of Q4 and Client under this Section 7.
  3. Notwithstanding Section 7(b), Receiving Party may disclose Disclosing Party’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business.

8. DISCLAIMERS OF WARRANTIES; LIMITATIONS AND EXCLUSIONS OF LIABILITY

  • a. DISCLAIMERS
  1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND EXCEPT WITH RESPECT TO THE COVENANTS IN THE SERVICE LEVEL PROVISIONS, THE SERVICES, THE DELIVERABLES, WORK PRODUCT AND THE Q4 MATERIALS ARE FURNISHED TO CLIENT ON AN “AS IS” BASIS WITH ALL FAULTS AND DEFECTS CONTAINED THEREIN AND CLIENT ACCESSES AND USES THE SERVICES, THE DELIVERABLES AND THE Q4 MATERIALS AT ITS OWN RISK.
  2. Q4 HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO ANY ASPECT OF THE SERVICES, THE DELIVERABLES, THE Q4 MATERIALS, THE WORK PRODUCT, AND THE RESULTS THAT MAY BE OBTAINED FROM USE OF ANY OF THEM.
  3. Q4 DOES NOT WARRANT THAT THE SERVICES, THE DELIVERABLES, THE WORK PRODUCT AND/OR THE Q4 MATERIALS, WILL BE ACCURATE, UNINTERRUPTED OR ERROR-FREE, NOR DOES Q4 MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, THE DELIVERABLES, THE WORK PRODUCT AND/OR THE Q4 MATERIALS.
    • b. LIABILITY
    1. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OF ITS OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, DIRECTORS OR CONTRACTORS FOR ANY OF THE FOLLOWING ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES; OR (B) LOSS OF BUSINESS, PROFITS, SAVINGS, USE, GOODWILL, CONTENT, OR DATA.
    2. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF A PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT CLIENT HAS PAID TO Q4 HEREUNDER FOR THE SERVICE(S) WITH RESPECT TO WHICH THE CLAIM IS MADE DURING THE TWENTY-FOUR (24) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. FURTHERMORE, CLIENT AGREES THAT CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR Q4’S FAILURE TO PROVIDE THE SERVICES IN ACCORDANCE WITH THE APPLICABLE SERVICE LEVEL SHALL BE AS SET OUT IN SUCH SERVICE LEVELS.
    3. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SECTION 8(B)(I) AND 8(B)(II) DO NOT APPLY TO A PARTY’S FRAUD OR WILFUL MISCONDUCT OR CLIENT’S PAYMENT OBLIGATIONS HEREUNDER.
    4. THIS SECTION 8(B) APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED OF THE DAMAGES OR LOSSES IN QUESTION OR IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE.
    • c. WITHOUT LIMITING THE GENERALITY OF ANY OTHER PROVISIONS IN THIS AGREEMENT, Q4 SHALL NOT BE LIABLE TO CLIENT, AND ASSUMES NO RESPONSIBILITY, FOR ANY LOSS OR DAMAGE RESULTING FROM: (I) FAILURES OF THIRD PARTY TOOLS, NETWORKS OR SERVICES, OR OF CLIENT’S SYSTEMS OR NETWORKS (INCLUDING, BUT NOT LIMITED TO, ANY FAILURE TO SECURE AND SAFEGUARD CLIENT’S SYSTEMS, IDENTIFICATION CODES OR PASSWORDS); (II) UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, CORRUPTION OR DESTRUCTION OF ANY CLIENT DATA OR CONTENT, OTHER THAN DUE TO THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF Q4 OR BREACH BY Q4 OF THE TERMS OF THIS AGREEMENT; OR (III) ANY MALFEASANT OR WILFUL ACT OR OMISSION BY CLIENT OR OF ANY THIRD PARTY (SUCH AS, WITHOUT LIMITATION, ‘DDOS’ ATTACKS).

    9. INDEMNIFICATION

    1. Q4 hereby agrees to defend, indemnify and hold Client (and Client’s officers, directors, employees and agents) harmless from and against any and all damages, costs, losses, liabilities and expenses (including reasonable outside lawyers’ fees) (“Losses”) resulting from, relating to or arising out of any claim, suit, action, proceeding or demand by a third party (“Claim”) (i) that the Subscription Services (as made available to Client), Q4 Materials, Deliverables or Work Product infringe upon a patent, copyright, trademark or other intellectual property right of a third party under the laws of Canada or the United States; (ii) regarding Q4’s breach of any law, rule or regulation applicable to its provision of the Services or (iii) the gross negligence, fraud or willful misconduct of Q4 or its employees, officers, directors, agents or contractors.
    2. Notwithstanding Section 9(a), Q4 shall have no liability hereunder and will be indemnified by Client for any claim of infringement to the extent based on: (i) the combination, operation or use of the Services, Q4 Materials, Deliverables and/or Work Product with any software, hardware, Content or other materials, systems, services or networks not furnished or certified in writing by Q4; (ii) any Content or any services, Deliverables, Work Product, materials or other work product fulfilled according to the specifications, instructions or requirements supplied by Client; (iii) modification of any Content, Deliverables, Work Product, Q4 Materials or Services other than by Q4 or with Q4’s written approval; or (d) use of the Services in contravention of this Agreement.
    3. If all or a part of the Services, Deliverables, Work Product or Q4 Materials is, in Q4’s opinion, likely to or does become the subject of a claim of infringement of the rights of a third party for which Q4 is liable to indemnify Client under Section 9(a), then Q4, at its option, may: (i) modify or replace the infringing or potentially infringing portion(s) to make it (them) non-infringing; or (ii) procure the right to permit Client’s continued usage of the Services, Deliverables, Work Product and/or Q4 Materials in question. If neither of the foregoing options is reasonably available to Q4, then Q4 may terminate this Agreement upon notice to Client, with a pro rata refund of any unused prepaid Fees for the Services that were to be provided or made available to Client after the effective date of termination.
    4. Sections 9(a) and 9(c) constitute Client’s sole remedy from Q4, and Q4’s sole obligation, in respect of infringement claims.
    5. Client hereby agrees to defend, indemnify and hold Q4 and Q4’s affiliates (and each of their officers, directors, employees and agents) harmless from and against any and all Losses resulting from, relating to or arising out of any Claim: (i) regarding any of Client’s access to or use of the Services in contravention of this Agreement; (ii) breach by Client of any applicable law, rules or regulation, including any applicable securities laws, regulations and instruments; (iii) the Content; or (iv) the gross negligence, fraud or willful misconduct of Client or its employees, officers, directors, agents or contractors.
    6. The indemnification obligations on the part of either party are conditional upon: (i) the indemnifying party being notified in writing promptly of the indemnified party’s receipt of notice of the Claim (provided that any delay in notification shall not limit the indemnifying party’s obligations in this Section 9 unless such delay materially prejudices the indemnifying party’s ability to defend such Claim); (ii) the indemnifying party being given the right to assume sole responsibility for carriage of the Claim, including but not limited to choice of counsel and settlement negotiations/decisions; and (iii) the indemnifying party being given the necessary authorization, information and full co-operation and assistance by the indemnified party for the defense of same; provided in all cases, however, that the indemnifying party may not settle any such Claim in a manner that imposes any on-going monetary obligation or admission of guilt or liability on the indemnified party without the written consent of the indemnified party.

    MISCELLANEOUS

    1. Q4 will not be liable for delays caused by any event or circumstances beyond Q4’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Q4’s employees), Internet service failures or delays, denial of service attack, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
    2. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties irrevocably attorn to the exclusive jurisdiction of the federal courts of the United States located in the Southern District of the State of New York for the purposes of adjudicating any matter arising from or in connection with this Agreement. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Q4 from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
    3. Except to the extent precluded by applicable law: (i) any parties to an action brought hereunder shall be individually named, and Client hereby waives any right it may have to litigate any such matter on a class or consolidated basis, or on bases involving disputes brought on a purported representative capacity; and (ii) the parties hereby irrevocably waive any right they may have to trial by jury.
    4. Client may from time to time provide suggestions, improvements, changes, specifications, test results, comments, or other feedback to Q4 with respect to the Applications or the Services (“Feedback”). Q4 shall be free to use, disclose, reproduce, license or otherwise distribute, make available and exploit the Feedback as it sees fit, entirely without obligation or restriction on account of any intellectual property rights or otherwise. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation on Q4.
    5. Client may not assign this Agreement without the prior written consent of Q4. Q4 may assign this Agreement without obtaining Client’s consent so long as such assignment is to an affiliate of Q4, to a successor entity resulting from the merger or amalgamation of Q4 with one or more third party, or to a purchaser of all of the shares in the capital of Q4 or of all or substantially all of Q4’s assets. This Agreement shall enure to the benefit of and be binding upon each party and their respective successors and permitted assigns.
    6. The parties hereto acknowledge that Q4 and Client are independent contractors and will have no power, nor will either party represent that it is has any power, to bind the other party or to assume or to create any obligation or responsibility, express or implied, on behalf of the other party or in the other party's name. This Agreement will not be construed as constituting Q4 and Client as partners, joint venturers or agents or to create any other form of legal association that would impose liability upon one party for the act or failure to act of the other party.
    7. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Delivery by electronic transmission in portable document format (PDF) or TIF format of this Agreement is as effective as delivery of an original of this Agreement.
    8. All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in US currency.
    9. Any term or provision of this Agreement that is invalid or unenforceable in any situation or in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
    10. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. The Order Form(s), including all approved amendments, are incorporated into and a part of this Agreement.
    11. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The Parties agree that in the event of any breach or threatened breach of Section 2(c), 2(d), 4, or 7, money damages would be an inadequate remedy and the affected party shall be entitled to seek injunctive relief, without the need to post a bond or other security.
    12. This Agreement, any applicable Order Form(s) and any policies or procedures that Q4 may adopt in respect of use of the Services (which may be updated from time to time) constitute the entire agreement and understanding between the parties regarding the subject matter of the Agreement, and supersede all prior agreements, understandings, documents and statements regarding such subject matter, and there are no inconsistent understandings or agreements other than those set out in this Agreement. No amendment or modification of this Agreement will be effective unless it is in writing and is executed by both Q4 and Client. If Client's internal procedures require the issuance of a purchase order, Client will deliver such purchase order to Q4, provided, however, that any standard terms and conditions pre-printed on or referenced in any such purchase order will be superseded and replaced by the terms and conditions of this Agreement.
    13. The parties hereto acknowledge that the entry into and execution of this Agreement by Q4 shall in no way prohibit Q4 from providing or making available any Application, Services, Work Product or Q4 Materials to any other individual or entity (regardless of whether such individual or entity is a competitor of Client).
    14. Any failure of a party to comply with any obligation, covenant, agreement or condition herein may be expressly waived in writing by the other party, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Client acknowledges and agrees that the remedies for any breach of the Service Level Provisions shall be solely as set forth in the Service Level Provisions.

    Any and all notices required to be delivered hereunder shall be sent by email to the email address set forth in the Order Form (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address set forth in the Order Form (“Mail Notification”). Any such notification shall be deemed effective: (i) upon transmission when delivered by Email Notification; or (ii) when delivered by Mail Notification.

    Schedule ‘A’

    Service Level Schedule

    Q4 Inc. (“Q4” or “we”, “us” or “our”)is committed to providing first-rate service and support to its customers to assist resolution of any issues encountered in the use of Q4’s platform and tools (the “Platform”), as set forth in this Service Level Schedule, which is incorporated by reference and forms part of the Master Client Agreement between you and Q4 (the “MCA”). The remedies set forth in this Service Level Schedule are your sole and exclusive remedies for any failure to achieve the service levels set forth herein.

    1. SERVICE LEVELS

    The Platform will be available 99.9% of the time in any given calendar month during the Term. You will be notified of weekly and monthly maintenance outside of the Routine Window in advance.

    Prioritization of Problems

    Problems will be addressed by Priority Levels and will be escalated to a progressively higher management level as required, and depending on those priorities. A description of these Priority Levels is as follows:

    Priority Levels Estimated Time to Fix Description of Problem
    Priority 1 4 hours The highest priority level, this classification indicates a business critical loss of service, or serious impairment to service, which cannot be circumvented. Examples: Outages (Hardware or Platform, Network or Cannot Access Platform or Website)
    Priority 2 48 hours Issue impact business operations but the application is still functional. Example: Slow Response Time
    Priority 3 72 hours Possible business impact, should be fixed at next maintenance release
    Priority 4 TBD Cosmetic issue, no significant business impact, will be addressed at the earliest possible opportunity

    Escalation of Notification

    Management Level Priority 1 Priority 2 Priority 3 Priority 4
    Help Desk Manager Immediate 4 hours 24 hours 48 hours
    Operations Manager Immediate 8 hours 26 hours N/A
    Director 4 hours 12 hours 36 hours N/A
    Vice President 8 hours 16 hours N/A N/A

    2. MAINTENANCE OF PLATFORM

    We will conduct maintenance and upgrades to the Platform, the web server software and operating system during the hours of 10 p.m. and 2 a.m. (Eastern time) (the “Routine Window”) unless deferral of such maintenance or upgrades to the Routine Window would materially and adversely affect performance or security of Q4’s network or data center. Q4 will use commercially reasonable efforts to perform such maintenance or upgrades in such a manner so as to not adversely impact your use of the Platform. To the extent possible, we will notify you as far in advance as practicable of any maintenance or upgrades outside the Routine Window. In addition, we will provide the following services without additional charge to:

    1. Promptly notify you of any defects or malfunctions in the Platform of which we learn from any source, correct any such defects or malfunctions and provide you with corrected copies of same or provide a workaround until corrected within the time frames specified in Section 1 of this Service Level Schedule;
    2. Provide you with copies of Updates to the Platform, including, without limitation, modifications to the Platform which can increase the speed, efficiency or base of operation of the Platform or add additional capabilities to or otherwise improve the functionality of the Platform;
    3. Promptly update the Platform as required to remain compatible with current industry standard operating systems and hardware platforms;
    4. Respond to errors in the Platform identified by you within the time frames specified in Section 1 of this Service Level Schedule; and

    3. BACK-UP

    We will maintain a complete and current copy of the Platform and your specific database on a server located at a remote location, and will conduct backups daily. We will provide you with access to the Platform 24x7 except during periods of maintenance, back-up and upgrade services.

    4. SERVICE LEVEL DEFAULTS

    If we fail to make the Platform available (“Uptime”) at least 99.9% of the time in any given month during the Term (“Uptime Service Level”), it will be deemed a service level default (“Uptime Service Level”), it will be deemed a service level default (“Service Level Default”) and you may request the remedies set forth below.

    For the purposes of this Agreement, “available” means that you and your authorized users are able to access substantially all features and functions of the Platform. In the event two or more Priority 1 issues occur in any thirty (30) day period during the Term, we will promptly investigate the root causes of such support issues and shall provide you an analysis of such root causes and a proposed corrective action plan (the “Corrective Action Plan”). The Corrective Action Plan shall include, at a minimum: (a) a commitment from us to devote the appropriate time, skilled personnel, systems support and equipment, and/or resources to remedy, and prevent any further occurrences of Priority 1 issues; (b) a strategy for developing any programming/software updates, fixes, patches, etc. necessary to remedy, and prevent any further occurrences of such issues; and (c) time frames for implementation of the Corrective Action Plan. There shall be no additional charge (other than those fees set forth in your agreement) for the implementation of such Corrective Action Plan in the time frames and manner set forth in the Corrective Action Plan.

    Service Level (Monthly) Service Level Credit (Prorated Monthly Fees)
    99.9% or Above 0%
    99.89% to 97% 10%
    96.99% to 95% 25%
    94.99% to 93% 50%
    Below 93% 100%, plus termination right

    (For the avoidance of doubt, the Platform shall be considered available for purposes of this Service Level Schedule if the cause of your inability to access substantially all features of the Platform is: (a) failure or degradation of your connectivity to the internet; (b) failures of your hardware or equipment; (c) DNS unavailability, instability or slowness; (d) any events identified in the second paragraph of Section 10(a) of the MCA; or (e) any scheduled maintenance within the Routine Window or emergency maintenance or suspension (in accordance with the MCA.)

    Upon request by us, you shall implement our “CNAME” process and setup for your hosting (“Q4 CNAME”). Q4 CNAME process is an internet traffic (DNS) routing implementation developed by us for proper failover functionality of Client websites made available by us as part of the Subscription Services in the event that we need to activate our disaster recovery solution. You acknowledge that any entitlement to Service Level Credits if you do not, or choose not to do so, will be subject to the following limitations. In the event that you do not, or choose not to, follow the Q4 CNAME process and setup, then, notwithstanding anything to the contrary herein, all calculations of Uptime shall be measured using the average monthly Uptime of the webfarm that is serving such Client’s site(s). In addition, you agree that, in the event that you utilize a Client crawler or bot traffic to test uptime (“crawling”), such crawling shall be limited to one (1) request per minute. In the event that you are crawling the website more than once per minute, then Q4 reserves the right, without limitation, to block webcrawler traffic without notice to you, and disallow any Service Level Credits you may have received to that point.)

    If you are eligible for a 100% Service Level Credit during any given calendar month of the Term, you may, at your option, terminate the applicable Subscription Service to which the credit applies without penalty by providing us with written 90 days notice.

    The Service Level Credits contemplated in the above table shall be your sole and exclusive remedy in the event of Service Level Default. Credits shall be applied against the next invoice. In the event a Service Level Default occurs after either party gives notice of termination under the Agreement or where you have made final payment to us under the MCA and if further invoices are due and payable, we will refund to you the amount of the appropriate Service Level Credit due for the month(s) in which the Service Level Default occurred.

    5. REPORTING

    Upon request, we shall provide you with a written report comparing the actual performance of the Platform with the Service Level standards specified in this Service Level Schedule. If requested, we will meet with you as often as may be reasonably requested by either party, but no more often than once each calendar quarter to review our performance of the Platform and to discuss technical plans, financial matters, systems performance, service levels and other matters relating to the MCA and this Service Level Schedule as may be reasonably requested.

    6. SECURITY

    During the term of the Agreement, we will, at a minimum, implement certain procedures designed to protect the security of your data and confidential information:

    1. User identification and access controls designed to limit access to your data and confidential information to only those with a need to know/access.
    2. External connections to the internet will have appropriate security controls including industry standard intrusion detection and counter-measures that will detect and terminate any unauthorized activity prior to entering the firewall maintained by us.
    3. Industry standard firewalls regulating all data entering our internal data network from any external source which will enforce secure connections between internal and external systems and will permit only specific types of data to pass through.
    4. Industry standard security techniques will be used when your confidential information and data are transmitted.
    5. Physical security measures including securing your data and confidential information on a secure server and locked data cabinets and within a secure facility. Only authorized employees and agents will have physical access to such information.
    6. Regular testing of the systems and procedures outlined in this section; and
    7. Audit controls that record and monitor the Platform activity regularly.

    SCHEDULE “B”

    Acceptable Use Policy

    1. General Restrictions re: Services. Client shall not do or attempt to do, and shall not permit any of its users or any third party to do, any of the following with respect to any or all of the Services, Work Product or Q4 Materials, including any Third Party Tools: (a) commercially exploit them, use them to permit service bureau use or time-sharing, or frame or mirror them; (b) sell, resell, license, sublicense, rent, lend, lease, copy, reproduce, distribute, redistribute, publish, make available, or otherwise transfer or make available any of them or any intellectual property rights therein; (c) access or use them for the purpose of building a competitive product or service; (d) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose; (e) disclose or publish any result of their performance; (f) modify them or create derivative works or make derivative works based on them; (g) perform any vulnerability, penetration or similar testing of them; (h) reverse engineer, decompile or dissemble them; (i) use them in a manner that threatens their security or functionality; (j) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them; (k) remove, modify, deface, destroy or obscure any intellectual property or proprietary notices, labels or marks in or on any or all of them; or (l) use them in violation of any applicable law, rule or regulation (including those regarding privacy, export and securities) or intellectual property right, or for any purpose or in any manner not expressly permitted in this Agreement.
    2. Unauthorized Access or Use. Client shall not gain, or attempt to gain, or permit any third party to gain, unauthorized access to the Subscription Services, including through automated means not provided by Q4 or through means other than Access Methods. No Access Methods may be shared with, or reassigned to (unless reassigned as part of a concurrent Admin User access right to a new individual replacing one who no longer requires ongoing administrative use of the Subscription Services) any other Permitted user.
    3. Content. Client will not, nor will it permit its users or any third party to, upload, input, transmit, activate, provide or make available via the Services to Q4 or any Q4 provider any Content that (a) contains any contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (b) is discriminatory, hateful, threatening, abusive, harassing, defamatory, libelous, obscene, deceptive, or fraudulent; (c) constitutes unsolicited commercial electronic messages, bulk e-mail, junk mail, or spam; (d) Client does not have the lawful right to create, collect, transmit, store, use or process; (e) infringes misappropriates or otherwise violates any intellectual property right, right of confidentiality, right of privacy, right of publicity or other rights of any third party; or (f) violates any applicable law, rule or regulation (including those regarding privacy, export and securities).