Visier Master Software as a Service Agreement (Embedded)

The Agreement is entered into by and between Visier, Inc., a Delaware corporation with its address at 548 Market Street, #62284, San Francisco, CA 94104-5401 USA (“Visier”) and the Customer entity identified on the applicable Order (“Customer“) as of the Effective Date. The Agreement sets forth the terms and conditions under which Visier will provide Authorized Users with access to and use of the SaaS Services. Each Order is subject to the terms and conditions of the Agreement. All updates, modifications, and enhancements to the SaaS Services and all SaaS Services subsequently purchased by Customer under an Order are subject to the terms and conditions of the Agreement. Visier and Customer agree to be bound by the Agreement. Capitalized terms not otherwise defined herein have the meanings given to them in Section 17 (Definitions) below.

1. Access and Use

Subject to the terms of the Agreement and payment of all applicable fees, Visier will make the SaaS Services available to the Authorized Users, solely for access and use by such Authorized Users during the term of the applicable Order for the internal business purposes of Participants. As part of the SaaS Services, Visier will provide to Customer: (i) Documentation and other online resources to assist with the use of the SaaS Services; and (ii) User Materials for distribution to Participants. Customer is authorized to share User Materials with Participants.

2. Customer Data

To use the SaaS Services, Customer must transfer Customer Data to Visier for processing. Customer determines and controls in its sole discretion the selection of Customer Data for transfer to Visier. Customer is solely responsible for the authority, quality, accuracy, integrity, transfer, and completeness of the Customer Data. Visier will store, process and transfer Customer Data for the sole purpose of providing, maintaining, and supporting the SaaS Services as contemplated under the Agreement. Visier is not obligated to accept and may freely delete any data received from Participants or any source other than Customer unless pre-approved by Visier in writing as an authorized third-party data source.

3. Application Content, Benchmarks, Aggregate Data

3.1. Application Content. The SaaS Services allow Authorized Users to represent information and insights using a variety of prebuilt and preformed visualizations. The complete set of visualizations that the SaaS Services can theoretically produce is called the Application Content. Specific availability of Application Content will vary for each Participant because Customer Data is unique to each Participant. Accordingly, Visier cannot and does not guarantee the availability of any specific Application Content. Additionally, all requests for customizations to the SaaS Services are subject to Visier’s prior approval and will be declined where substantially similar Application Content exists in Visier’s product or service offerings.

3.2. Benchmarks. The SaaS Services provides for Benchmarks as may be identified on the applicable Order. Benchmarks are proprietary to Visier and provided in a form and frequency determined by Visier in its sole discretion from time to time. Benchmarks may be provided in combination with third-party content sourced from relevant industry contributors. As Benchmarks are dependent on adequate data input in any individual query, Visier does not guarantee the accuracy, completeness, timeliness, or availability of Benchmarks, as the same may be modified from time to time.

3.3. Aggregate Data. As part of the SaaS Services, Visier may produce Aggregate Data. Visier will: (i) ensure that, through anonymization, de-identification, and other effective methods, the Aggregate Data (a) will not contain any data relating to a natural person, consumer, or household, that can be identified, directly or indirectly, from the Aggregate Data and (b) will not contain any data relating to a specific device that can be identified, directly or indirectly, from the Aggregate Data; and (ii) maintain appropriate technical and organizational safeguards intended to prevent the re-identification of any natural person, consumer, household, or specific device, that was the subject of data used to produce Aggregate Data. Furthermore, Aggregate Data will not be published, displayed, or transmitted to a third party in any form, in whole or in part, where Customer, its Affiliates or Participants could be identified as the source of such data.

4. Incorporated Documents and Supplemental Addendums

The incorporated documents set out in the table below are hereby made part of the Agreement. Supplemental Addendums set out in the table below may be made part of the Agreement upon mutual execution of the parties or attachment to this MSA as exhibits.

5. Support

As part of the SaaS Services, Visier will provide Customer with Tier 2 Support, which Tier 2 Support may be engaged solely by Customer. Customer will serve as Participants’ primary support in Participants' use of the SaaS Services and will (i) make a mechanism available to Participants for accepting support requests related to the SaaS Services; and (ii) make commercially reasonable efforts to resolve each such support request in a timely manner without engaging Tier 2 Support. If, after Customer makes a determination in good faith that a Participant’s support request cannot reasonably be resolved by Customer without engaging Tier 2 Support, then Customer will: (a) be the sole contact with Visier for communication to and from Participants related to all Tier 2 Support; (b) make commercially reasonable efforts to classify the incoming support request according to the Severity Level definitions provided in the Tier 2 Support Policy; and (c) promptly forward the request and classification to Visier for Tier 2 Support. Except where required to comply with applicable law, Visier will not have any responsibility to provide Tier 2 Support or otherwise provide support to a Participant in response to a request that Visier receives other than from Customer in accordance with this Section. Visier will not be responsible for downtime of the SaaS Services caused by Customer’s formatting of the Customer Data that was not in compliance with the Documentation.

6. Responsibilities and Restrictions

6.1. Responsibilities. The SaaS Services are provided to the Customer, who in turn provides services to Participants. Visier does not engage directly with Participants. Customer will be responsible to direct, make, and receive all communication on behalf of Participants. Customer must ensure it enters into or has entered into an agreement directly with each Participant that contains terms applicable to each Participant that are consistent with, and no less restrictive than, the terms of the Agreement. Customer is responsible for the compliance of Authorized Users, Affiliates, and Participants with the terms and conditions of the Agreement, and will be liable to Visier for breach of any term or condition of the Agreement by any Authorized User, Affiliate, or Participant, including any act or omission that, if committed by Customer, would be a breach of the Agreement, as if such breach is Customer’s own. Customer is responsible for (i) maintaining the confidentiality of User IDs and associated passwords, and (ii) any and all activities that occur while operating under each such User ID. Customer agrees to immediately notify Visier of any unauthorized use of a User ID of which Customer becomes aware and to require Participants to immediately notify Customer of same. Customer and Participants are responsible for procuring and maintaining the networks, software and equipment necessary to connect to the Internet and to access the SaaS Services, as set out in the Documentation.

6.2. Restrictions. Customer, its Affiliates, Participants, and Authorized Users, may not and may not permit any person or entity to: (i) resell, transfer, make available, or allow the use of or access to the SaaS Services, or any part thereof, directly or indirectly, to or by any person who is not an Authorized User or for the benefit of any third party other than a Participant, without the prior written approval of Visier; (ii) copy, reverse engineer or otherwise attempt to obtain the source code for any component of the software used to provide the SaaS Services, except and only to the extent these restrictions are expressly prohibited by applicable statutory law; (iii) alter, modify or adapt any component of the SaaS Services or any software used to provide the SaaS Services, including without limitation, translating or creating derivative works; (iv) introduce into or transmit through the SaaS Services any virus, worm, trap door, back door, or other harmful or malicious code, files, scripts, agents, or programs; (v) transmit or store infringing material in the SaaS Services; (vi) assign or permit a Participant to assign a User ID, or make the SaaS Services available, to any person who is less than 13 years old; (vii) use or permit, except with the express prior authorization of Visier and under supervision by Visier, the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the SaaS Services; (viii) except as expressly permitted herein, make any component of the SaaS Services available by loan, rental, service bureau, external time sharing or similar arrangement; (ix) access, attempt to access, or use the SaaS Services other than through a validly assigned User ID; (x) share a User ID with anyone other than the designated Authorized User; (xi) export or re-export the SaaS Services, Documentation, or any component or direct product thereof, except in compliance with all applicable export laws, restrictions, and regulations; or (xii) remove, overprint, deface, obfuscate, or change any notice of confidentiality, copyright, trademark, logo, legend, or other notices of ownership or other rights from the SaaS Services or Documentation.

7. Term, Suspension and Termination

7.1. Agreement Term. The Agreement will commence on the Effective Date and continue until all Orders have expired or are otherwise terminated in accordance with the Agreement. Each Order will specify the duration of the term for each purchase of SaaS Services made in that Order. Unless otherwise specified in the applicable Order, upon expiration of the initial term or any subsequent renewal term, all Services will automatically renew for additional successive renewal terms, each with a duration equal to the duration of the expiring term, except that either party may prevent a renewal by giving the other party notice of non-renewal at least sixty (60) days prior to the end of the expiring term.

7.2. Suspension. Visier may suspend access to and use of the SaaS Services: (i) for an individual Participant, where Visier reasonably believes that Participant is in breach of any obligation or restriction under the Agreement and/or an Order; (ii) for Customer and all Participants, if any payment other than an amount subject to good faith dispute is due but unpaid and Customer has not corrected the delinquency within ten (10) days after Visier has provided Customer written notice of such delinquency; and (iii) in the case of any of Customer, an individual Participant, or a group of Participants, a breach of any term or condition of the Agreement or an Order that, in Visier’s reasonably belief, obliges Visier to suspend the SaaS Services to Customer or to any individual or group of Participants. SaaS Services will resume within a reasonable time after the breach or delinquency has been corrected. Visier will not be liable to Customer, an Affiliate of Customer, a Participant, or any third party for any suspension of the SaaS Services pursuant to this Section.

7.3. Termination for Cause. In the event that a party breaches, or a Participant causes the breach of, any material provision of the Agreement and such breach is not cured within thirty (30) days after receiving written notice of such breach from the other party, such other party will have the right to either terminate the Agreement or terminate the Order that was the subject of such breach. The Agreement may also be terminated upon written notice by a party if the other party (i) terminates or suspends its business activities; (ii) liquidates all or a substantial portion of its assets for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets. Termination of the Agreement immediately terminates all Orders. In the event Customer terminates an Order (including by termination of the Agreement) for cause pursuant to this Section 7.3, Customer will receive a pro-rata refund of the pre-paid fees corresponding to the terminated portion of the affected term. In the event Visier terminates an Order (including by termination of the Agreement) for cause pursuant to this Section 7.3, the payment obligation for all fees and charges corresponding to the terminated portion of the affected term will accelerate and become due and payable immediately.

8. Fees

8.1. Payment and Late Fees. Upon execution of an Order, Customer thereby commits to pay all fees and charges in the Order for the full duration of the term of the Order. All fees and charges are payable in accordance with the payment terms specified on that Order, or within thirty (30) days of the invoice date if no payment terms are so specified. Payment amounts that are overdue, other than an amount subject to good faith dispute, will incur interest in an amount equal to one percent (1%) per month or the maximum allowed by law, whichever is less. Subject to the mandatory provisions of local law, all fees and charges are non-cancelable and non-refundable except as expressly provided in the Agreement. Unless otherwise specified in the applicable Order, all fees and charges under the Agreement will be in United States dollars and all references to “dollars,” and “$” will mean United States dollars. Customer is responsible for providing complete and accurate billing and contact information and must provide Visier prompt notice of any changes to such information.

8.2. Taxes. All fees and charges set forth in an Order are exclusive of any Taxes. Customer is responsible for paying all Taxes arising out of the Orders or other transactions contemplated by the Agreement, excluding only taxes based on Visier’s net income. If Visier has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.

8.3. Invoicing. Unless otherwise specified in the applicable Order, (i) the first year amount of all annually recurring fees, and all one-time fees are invoiced upon receipt of the applicable Order, (ii) subsequent year annually recurring fees are invoiced no earlier than thirty (30) days prior to the start of each annual period of the applicable term, (iii) time and materials fees are invoiced monthly on delivery, and (iv) expenses are invoiced monthly as incurred by Visier.

9. Confidentiality

9.1. Nondisclosure and Permitted Use. Each party agrees that Confidential Information will be maintained in confidence and not disclosed, used or duplicated, except as permitted in the Agreement. Recipient will not copy or disclose Discloser’s Confidential Information except to its Representatives who need to know the Confidential Information in order to perform under the Agreement. Recipient and its Representatives may use Confidential Information only in connection with performance under the Agreement. Recipient will protect Discloser’s Confidential Information with the same, but not less than reasonable, standard of care it uses to protect its own Confidential Information. Each party will promptly inform the other party of any unauthorized disclosure of, or access to, the other party’s Confidential Information.

9.2. Deletion and Retention. No more than thirty (30) days after expiration or termination of the Agreement, Recipient will cease use of and return or destroy all copies or extracts of Discloser’s Confidential Information except that Recipient may retain portions of Confidential Information in accordance with its procedures implemented to comply with applicable law or regulation, litigation hold or audit logging requirements, provided that such Confidential Information remains subject to the terms of the Agreement and may not be used except for such compliance purposes. Customer Data will be destroyed according to the terms of the Safeguards Policy. Backups may be retained by Visier for up to ninety (90) days following termination or expiration of the Agreement. At the request of Discloser, Recipient will provide a certificate, signed by its authorized representative, acknowledging that Discloser’s Confidential Information has been returned or destroyed in accordance with these terms.

9.3. Exclusions. The foregoing limitations on the disclosure and use of Confidential Information will not apply if the Confidential Information: (i) was already known to Recipient, other than under an obligation of confidentiality, at the time of disclosure by Discloser; (ii) was or becomes generally available to the public or otherwise part of the public domain, through no fault of Recipient or its Representatives; (iii) was lawfully received from a third party who rightfully acquired it and did not obtain or disclose it in violation of any confidentiality agreement or obligation; or (iv) was independently developed by Recipient without the use of, or reference to, the Confidential Information of Discloser.

9.4. Relief. A party’s breach of its confidentiality obligations hereunder may cause the aggrieved party to suffer irreparable harm in an amount not easily ascertained. The parties agree that, upon any actual or threatened breach of a party’s confidentiality obligations hereunder, the aggrieved party will be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.

9.5. Lawful Disclosure. If Recipient is required by law to disclose Discloser’s Confidential Information, Recipient may do so, but will first, if legally permissible, provide Discloser with prompt notice of such pending disclosure so that Discloser may seek to contest or limit such disclosure and Recipient will provide reasonable assistance to Discloser at Discloser’s expense.

10. Intellectual Property Rights

10.1. No Implied Grant. Except as expressly set forth herein, the Agreement does not grant either party any rights, implied or otherwise, to the other party’s content or the other party’s intellectual property.

10.2. Intellectual Property Ownership. As between the parties, Customer owns Intellectual Property Rights in and to the Customer Data As between the parties, Visier owns all Intellectual Property Rights in and to the SaaS Services, Documentation, User Materials, and Visier Proprietary Works. Without limiting the foregoing, the parties agree that Visier will be considered the author of all Visier Proprietary Works for purposes of copyright, and no Visier Proprietary Works will be considered a "work made for hire."

10.3. Feedback. If Customer provides Feedback to Visier, Customer hereby grants to Visier a royalty-free, worldwide, transferable, no-charge, sub-licensable, irrevocable, and perpetual license to use, disclose, reproduce, license, distribute and exploit the Feedback entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

10.4. Marks. Each party hereby grants the other party a nonexclusive, nontransferable, non-sublicensable, royalty-free license to use, in Customer's case, the “Visier” name and associated logos and, in Visier’s case, Customer’s company name and associated logos (collectively, “Marks”) (i) solely in connection with the other party’s marketing, sales, and services activities for the products and services that are the subject of the Agreement; and (ii) in Visier’s case, during the term to describe Customer as a partner, to include Customer in partner lists, and to use Customer’s Marks to identify Customer as a partner in proposals and presentations to prospective clients and investors and on its website. Any other use of Marks, including without limitation in press releases, requires the prior written consent of the other party. All use must comply with the owner's trademark policies, and neither party shall tarnish, dilute, or disparage the other's Marks. The Customer agrees not to remove or obscure any "powered by" branding specified by Visier.

11. Indemnification

11.1. Visier’s Intellectual Property Indemnity. Visier, at its expense, will defend and indemnify Customer from and against all costs, liabilities and expenses (including reasonable attorney fees) arising from a Claim against Customer and/or its Affiliates alleging that the SaaS Services infringe or misappropriate a patent, trademark, trade secret, or copyright, including, but not limited to, all damages assessed, awarded, and/or fined by a court of competent jurisdiction or agreed to in settlement; provided that Visier has no obligation or liability under this Section for any Claim under this Section arising from: (i) any modification to the SaaS Services unless such modification was made by Visier or at the express direction or with the express written approval of Visier; (ii) use of the SaaS Services not in accordance with the Agreement or the Documentation; (iii) the combination of the SaaS Services with other products or services not supplied by Visier, its subcontractors or its suppliers, unless such combination is expressly contemplated by the Documentation; or (iv) the continued use by Customer of the SaaS Services after Customer has been notified by Visier that such SaaS Services may be infringing. Should the SaaS Services become, or in Visier’s opinion be likely to become, the subject of a Claim under this Section, at Visier’s option and expense: (a) Visier will procure for Customer the right to make continued use thereof; (b) Visier will replace or modify the SaaS Services such that it becomes non-infringing; or (c) if in Visier’s sole discretion it determines that (a) and (b) are not available to Visier on commercially reasonable terms, the affected Order(s) will be terminated on notice to Customer and Customer must cease using the SaaS Services, in which case, Customer will receive a pro-rata refund of the pre-paid fees corresponding to the terminated portion of each affected term. This Section will be Customer’s sole and exclusive remedy and Visier’s entire liability for any Claim under this Section 11.1.

11.2. Customer’s Intellectual Property Indemnity. Customer, at its expense, will defend and indemnify Visier from and against all costs, liabilities, and expenses (including reasonable attorney fees) arising from a Claim against Visier and/or its Affiliates alleging that Customer Data infringes or misappropriates a patent, trademark, trade secret or copyright, including, but not limited to, damages assessed, awarded, and/or fined by a court of competent jurisdiction or agreed to in settlement. This Section will be Visier’s sole and exclusive remedy and Customer’s entire liability for any Claim covered under this Section 11.2.

11.3. Customer’s Participant Indemnity. Customer, at its expense, will defend and indemnify Visier and its Affiliates from and against all costs, liabilities and expenses (including reasonable attorney fees) resulting from or incurred as a result of any claim, suit, or action by a Participant against Visier and/or its Affiliates concerning obligations between Customer and a Participant, including, but not limited to, damages assessed, awarded, and/or fined by a court or supervisory authority of competent jurisdiction or agreed to in settlement. This Section will be Visier’s sole and exclusive remedy and Customer’s entire liability for any claim, suit, or action covered under this Section 11.3.

11.4. Indemnification Procedure. The parties’ indemnity obligations are contingent on the indemnified party giving the indemnifying party prompt written notice of a claim, provided, however, that failure of a party to give prompt notice will not relieve the indemnifying party from its obligations under the Agreement unless the indemnifying party’s ability to defend or the defense is materially prejudiced by such failure. Upon receipt of notice of a claim from an indemnified party, the indemnifying party will, at its sole cost and expense, assume the defense thereof by representatives chosen by it. The indemnified party will be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. The indemnifying party will have the right to assert any defenses, causes of action or counterclaims arising from the subject of the claim available to the indemnified party and will also have the right to negotiate a settlement of the claim, subject only to the indemnified party’s prior written consent to the extent such settlement does not fully release the indemnified party. The indemnified party will provide the indemnifying party with reasonable assistance, at the indemnifying party’s expense.

12. Warranties

12.1. General Warranties. Each of Visier and Customer represents and warrants to the other that (i) it has the full power and authority to enter into and perform the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and (ii) it will comply with all laws applicable to the performance of its obligations hereunder.

12.2. Customer Warranties. Customer represents and warrants that, during the Term, (i) it has all necessary rights and licenses to the Customer Data to meet its obligations under the Agreement, and (ii) such necessary consents, permissions, and assurances from Participants to provide the Customer Data to Visier and permit the transfer to and processing of Customer Data by Visier for the purposes contemplated under the Agreement.

12.3. Visier Warranties. Visier represents and warrants that (i) the SaaS Services (a) will perform materially in accordance with the Documentation, (b) will be free of viruses, trojan horses, worms, time bombs and other malicious programming routines designed to disable, damage, erase or corrupt software, hardware or data, and (c) will not be materially degraded during the applicable term; and (ii) the support provided hereunder will be performed in a professional and workmanlike manner consistent with generally accepted industry standards reasonably applicable to the provision of such support. Customer’s sole and exclusive remedy for breach of any warranty in this Section is the prompt repair, replacement or re-performance of the defective or non-conforming SaaS Services or support. If Visier notifies Customer that such prompt repair, replacement or re-performance is not commercially reasonable, then within thirty (30) days of receipt of such notice, Customer may (a) grant an extension of time for Visier to correct the non-conformity or (b) terminate the affected Order upon notice to Visier and receive a pro-rata refund of the pre-paid fees corresponding to the terminated portion of the affected Order term. Visier will have no liability with respect to any representation or warranty made under this Section unless Customer provides Visier with written notice of its claim with respect thereto no later than ninety (90) days after the defect or non-conformity that is the subject of the claim occurs or is introduced. Such notice must specify the factual basis of Customer’s claim in reasonable detail, to the extent then known by Customer.

13. Limitations of Liability

13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR LOST REVENUES, LOST GOODWILL, LOSS OF USE, LOST OR INACCURATE DATA, OR INTERRUPTION OF BUSINESS, WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

13.2. General Liability Cap. EXCEPT FOR EXCLUDED CLAIMS AND DAMAGES IDENTIFIED IN SECTION 13.3 BELOW, EITHER PARTY’S LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO VISIER FOR THE SAAS SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH LIABILITY.

13.3. Super Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EITHER PARTY’S LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO A BREACH OF CONFIDENTIALITY (ARISING FROM BREACH OF SECURITY OBLIGATIONS, BREACH OF PRIVACY OBLIGATIONS, OR OTHERWISE), WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED TWO (2) TIMES THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO VISIER FOR THE SAAS SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH LIABILITY.

13.4. Excluded Claims. “Excluded Claims” means: (i) either party’s indemnification obligations under Section 11; (ii) damages resulting from a party’s gross negligence, willful misconduct or fraud; (iii) Customer’s or a Participant’s breach of Section 6.2; or (iv) Customer’s payment obligations under Section 8.

13.5. Failure of Essential Purpose. The waivers and limitations in this Section 13 will survive and apply notwithstanding any finding of a failure of the essential purpose of any limited remedy.

14. Disclaimers

14.1. Use. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SAAS SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, THE RISK OF ANY USE CUSTOMER MAKES OF THE SAAS SERVICES IS CUSTOMER’S OWN, AND NEITHER VISIER, NOR ITS AFFILIATES, EMPLOYEES, AGENTS, OR LICENSORS MAKE, AND VISIER, ITS AFFILIATES, EMPLOYEES, AGENTS, AND LICENSORS HEREBY SPECIFICALLY DISCLAIM, ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, TIMELINESS, QUALITY, ACCURACY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. CUSTOMER’S DECISIONS BASED ON THE SAAS SERVICES ARE ENTIRELY CUSTOMER’S OWN AND VISIER ASSUMES NO RESPONSIBILITY FOR THE CONSEQUENCES RESULTING FROM CUSTOMER’S USE OF THE SAAS SERVICES, INCLUDING BUT NOT LIMITED TO, CONSEQUENCES BASED ON ERRORS OR OMISSIONS, THE ACCURACY OR REASONABLENESS OF SCIENTIFIC ASSUMPTIONS, STUDIES, OR CONCLUSIONS, OR THE PRESENCE OF BIAS.

14.2. Third-Party Systems. VISIER ASSUMES NO RESPONSIBILITY FOR: (I) THE RELIABILITY OR PERFORMANCE OF ANY SOURCE SYSTEM; (II) THE PROVISION BY CUSTOMER OF VALID, UP-TO-DATE, API KEYS FOR SOURCE SYSTEMS; (III) CUSTOMER’S CONFIGURATION OF VISIER’S ACCESS TO SOURCE SYSTEMS; (IV) FEES ASSOCIATED WITH ENABLING OR SUPPORTING API ACCESS TO SOURCE SYSTEMS CHARGED BY THE PROVIDERS AND/OR LICENSORS OF THE SOURCE SYSTEMS AND ANY RELATED COSTS INCURRED BY CUSTOMER; OR (V) ANY COMPUTER NETWORKS, CONNECTIONS, OR OTHER SYSTEMS NOT OWNED OR OPERATED BY VISIER. IF THE SAAS SERVICES INCLUDE OR PERMIT THE INCLUSION OF THIRD-PARTY WEBSITES, VISIER ASSUMES NO RESPONSIBILITY FOR SUCH WEBSITES AND ANY USE MADE OF SUCH WEBSITES ARE AT CUSTOMER’S (AND THE PARTICIPANTS’ AND AUTHORIZED USERS’) OWN RISK, SUBJECT TO THE TERMS OF SUCH THIRD-PARTY WEBSITE.

14.3. Specific Compliance. CUSTOMER’S OR PARTICIPANTS’ BUSINESS MAY REQUIRE CUSTOMER TO COMPLY WITH INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS THAT ARE SPECIALIZED AND WITH WHICH THE SAAS SERVICES ARE NOT DESIGNED OR INTENDED TO COMPLY WITH, INCLUDING BUT NOT LIMITED TO THE U.S. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) OR ANY EQUIVALENT OR SUCCESSOR LEGISLATION, FEDERAL INFORMATION SECURITY MANAGEMENT ACT (FISMA), GRAMM-LEACH-BLILEY ACT (GLBA), EUROPEAN BANKING AUTHORITY OUTSOURCING GUIDELINES, PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS (PCI DSS), VARIOUS INTERNATIONAL ORGANIZATION FOR STANDARDIZATION (ISO) STANDARDS, OR SUCH SIMILAR INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR STANDARDS. EXCEPT FOR COMPLIANCE WITH AI LAWS AND DATA PROTECTION LAWS APPLICABLE TO VISIER’S PROCESSING UNDER THE AGREEMENT, THE SAAS SERVICES ARE NOT DESIGNED, RATED, VALIDATED, AUDITED, APPROVED OR OTHERWISE INTENDED TO COMPLY WITH INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS AND VISIER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO COMPLIANCE WITH INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS IN THE PROCESSING OF ANY DATA THAT IS SUBJECT TO SUCH LAWS, REGULATIONS, OR SECURITY STANDARDS. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING WHICH OF ITS DATA IS PROVIDED TO VISIER FOR PROCESSING AND FOR ENSURING THAT SUCH DATA IS NOT SUBJECT TO INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS IN ADVANCE OF TRANSFER TO VISIER.

14.4. Safety-Critical Applications. THE SAAS SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN ANY SAFETY-CRITICAL APPLICATION INCLUDING BUT NOT LIMITED TO: (I) THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY; (II) NAVIGATING OR OPERATING AIRCRAFT; (III) ANY LIFE-SAVING, LIFE-SUPPORT OR LIFE-CRITICAL MEDICAL EQUIPMENT; OR (IV) ANY OTHER SAFETY-CRITICAL OR LIFE-CRITICAL SITUATION. VISIER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE USE OF THE SAAS SERVICES IN ANY SAFETY-CRITICAL APPLICATION WHERE THE FAILURE OF THE SAAS SERVICES COULD CAUSE A LIFE-THREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, OR MILITARY APPLICATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING WHICH OF ITS DATA IS PROVIDED TO VISIER TO PROCESS.

15. Notices

Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given: (i) when verified by written receipt if sent by personal courier or overnight courier or mail with verification of receipt; (ii) when received if sent by mail without verification of receipt; or (iii) when verified by automated receipt or electronic logs if sent by email, provided e-mail will not be sufficient for notice of breach, termination or indemnifiable claim. Notices to Customer will be addressed to the contact designated in the relevant Order and Visier will be entitled to rely on that address until Customer gives Visier notice that such address is no longer valid. Notices required under the Tier 2 Support Policy will be provided as specified therein. Notices to Visier will be addressed: by courier or by postal mail to Visier, Inc., 548 Market Street, #62284, San Francisco, CA 94104-5401 USA, ATTN Legal Department; or by e-mail (where permissible) to legal@visier.com.

16. General Provisions

16.1. Entire Agreement. The Agreement supersedes all prior oral or written negotiations and discussions of the parties and constitutes the entire agreement between the parties with respect to the subject matter hereof. No modification, amendment, supplement, or waiver of any of the provisions hereof will be binding upon any party hereto unless made in writing and signed by a duly authorized representative of each party hereto. The Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any provision. Notwithstanding any language to the contrary therein nor any requirement of affirmative acceptance, no term, condition or provision of any purchase order, invoice, registration portal, ‘click-through’ form, or other administrative document or procedure issued by Customer or any third party to Visier in connection to the Agreement will be deemed to affect, modify, alter or expand the rights, duties or obligations of the parties hereunder, or otherwise modify the Agreement, regardless of any failure of Visier to refute or object to such term, condition or provision.

16.2. Binding Nature, Third Parties, Independent Contractors. The Agreement is binding on the parties hereto and their respective successors and permitted assigns, is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity. The parties agree that there are no third-party beneficiaries to the Agreement. The relationship established between the parties by the Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to: (i) give either party the power to direct and/or control the day-to-day activities of the other; (ii) constitute the parties as partners, joint venture partners, co-owners or otherwise as participants in a joint or common undertaking; or (iii) allow a party to create or assume any obligation on behalf of the other party for any purpose whatsoever, except as contemplated by the Agreement.

16.3. Assignment. A party may not, without the prior written consent of the other party, assign, make assignable, or otherwise transfer the Agreement or any portion thereof, nor any of its rights or obligations thereunder, by operation of law or otherwise, and any attempt to do so will be null and void. Notwithstanding the foregoing, a party may assign the Agreement to its successor-in-interest without obtaining the other party’s consent in connection with a merger, reorganization or sale of substantially all of the assets of such party. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

16.4. Governing Law and Forum. The validity, interpretation and enforceability of the Agreement will be governed by the laws of the State of California, USA without regard to its conflict of laws principles. The parties hereby submit to the nonexclusive, personal jurisdiction of the state and federal courts located in the County of Santa Clara, California.

16.5. UCITA. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are expressly excluded. If any provision hereof will for any reason be declared to be void or illegal, the enforceability of the Agreement or any other provision hereof will not be affected. In addition, the parties agree that such void or illegal provision will be construed in a manner designed to effectuate its purpose to the fullest extent enforceable under applicable law.

16.6. Headings. The headings in the Agreement are for reference purposes only and will not affect the meaning or construction of the terms and conditions.

16.7. U.S. Federal Department. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, Visier provides the SaaS Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the SaaS Services include only those rights customarily provided to the public as defined in the Agreement and any use, modification, reproduction, license to, display, or disclosure of the SaaS Services by a U.S. federal government department or agency will be governed solely by the terms and conditions of the 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). The SaaS Services and Documentation are deemed to be ‘commercial computer software’ and ‘commercial computer software documentation’ respectively. If a government agency has a need for rights not conveyed under the Agreement, it must negotiate with Visier to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

16.8. Cumulative Remedies, Litigation Costs. Except where expressly stated otherwise, all remedies are cumulative and in addition to and not in lieu of any other remedy the party may have at law or in equity. In the event of any litigation of any controversy or dispute arising out of or in connection with the Agreement, its interpretations, its performance, or the like, the prevailing party will be awarded reasonable attorneys’ fees and/or costs.

16.9. Force Majeure. Neither party will be responsible for any delay or failure in performance resulting from acts beyond its reasonable control to the extent that such acts could not have been prevented or avoided by the exercise of reasonable diligence by the affected party, including, without limitation, act of God, act of war or terrorism, riot, epidemic, fire, flood, or act of government.

16.10. No Waiver. No failure or delay on the part of any party in exercising any right hereunder, irrespective of the length of time for which such failure or delay will continue, will operate as a waiver of, or impair, any such right. No single or partial exercise of any right hereunder will preclude any other or further exercise thereof or the exercise of any other right. No waiver of any right hereunder will be effective unless given in writing.

16.11. Survival. Notwithstanding any expiration or termination of the Agreement, Sections 6 through 11 (inclusive) of this MSA will survive such termination or expiration and remain in full force and effect.

16.12. Counterparts. A Contract Document may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered will be deemed an original and all such counterparts will together constitute one and the same agreement. Any executed signature page of a Contract Document may be transmitted by e-mail or other electronic transmission to the other party. Execution of a Contract Document by exchanging portable document format (PDF), or e-Signature signatures will have the same legal force and effect as the exchange of original signatures. If an e-Signature is affixed through the use of an e-signature application, it will be deemed to be an original signature as if handwritten and no certification authority or other third party verification will be necessary to validate the e-Signature of any party or any agreement between the parties resulting from an e-Signature.

17. Definitions

“Acceptable Use Policy” means the means the Visier Acceptable Use Policy available at Visier’s Trust Site.

“Affiliate” means, with respect to a party, an entity under its direct or indirect Control or under common Control; but in any such case, such entity will be deemed to be an Affiliate only so long as such Control exists.

“Aggregate Data” means the data and information generated by Visier through the aggregation and transformation of certain values calculated from, isolated from, or inferred from Customer Data in combination with other information from other sources, including from publicly available sources. For the avoidance of doubt, Aggregate Data is neither Personal Data nor Customer Data and is proprietary to Visier.

“Agreement” means collectively the MSA, the Order(s), and all exhibits, amendments, addendums, and supplements thereto.

“AI Law” means that legislation that regulates artificial intelligence and is applicable to Visier’s provision of the SaaS Services to Customer pursuant to the Agreement.

“API” means application programming interface or such similarly credentialled automated data connection workflow configured by Customer.

“API Key” means the credentials, generally provided through a digital key, that provides authentication to a Source System.

“Application Content” means the prebuilt visual representations, metrics, and overlays made available through the SaaS Services, whether such representations are in graphic, written, or any other visual form. Customer Data informs, but does not create, Application Content.

“Artificial Intelligence Addendum” means the Visier Artificial Intelligence Addendum executed between Visier and Customer, if any, pertaining to the utilization of artificial intelligence technologies within the SaaS Services.

“Authorized User” means a director, officer, employee, subcontractor, agent, or advisor of a Participant who has been issued a valid User ID.

“Benchmarks” means Visier’s proprietary benchmark and standardized information informed by Aggregate Data and made available through the SaaS Services.

“Claim” means any claim, suit, or action filed by a third party.

“Confidential Information” means any business or technical information of Discloser or its Affiliates, whether provided in written, electronic, oral or any other form, that: (i) is clearly marked or identified as “confidential” or “proprietary” at the time of disclosure; (ii) Recipient knows or should reasonably understand is the confidential or proprietary information of Discloser or its Affiliates; or (iii) belongs to one of the following categories: Customer Data, Personal Data, Benchmarks, financial data, customer information, technical schematics, technical data, technical algorithms, product pricing, product roadmaps, product documentation, product software in source code, object code, or any other form, information about pending mergers or acquisitions, security procedures, and the terms of the Agreement.

“Contract Document” means individually the MSA, any Order, or any amendment, addendum or supplement.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a legally recognizable entity, whether through the ownership of more than fifty percent (50%) of the voting shares, by contract, or otherwise.

“Customer Data” means the electronic data transferred to Visier by Customer (or on Customer’s behalf) for use with the SaaS Services, in accordance with the requirements for submission of Customer Data set forth in the Safeguards Policy, which may include Participant Data.

“Data Privacy Addendum” means the Visier Data Privacy Addendum executed between Visier and Customer pertaining to the processing of Personal Data under the Agreement, if any.

“Data Protection Law” means that legislation protecting the right to privacy of natural persons (including consumers and households) that is applicable to the Processing of Personal Data under the Agreement, but excluding industry-specific laws, regulations or security standards.

“Discloser” means the party disclosing, or on whose behalf its Representatives are disclosing, Confidential Information.

“Documentation” means specifications, technical information, user instructions and administrative manuals for the SaaS Services published by Visier and made available to Customer, which may be updated from time to time by Visier, but excluding User Materials, any sales or marketing materials, and user forums.

“Effective Date” means the Order Date of the initial Order placed under the Agreement.

“Employee” means any non-terminated personnel of a Participant, including without limitation full-time, part-time, casual, fixed-term, commission, trainee and probationary employees and contractors, whether active or inactive.

“e-Signature” means a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to, or associated with an electronic document that is adopted or performed by the signer with the present intent to authenticate, manifest acceptance of, or assent to such electronic document.

“Feedback” means all suggestions, recommendations, enhancement requests and other feedback related to the design, function, or operation of Visier’s products and/or services.

“Incorporated Documents” means those mandatory policies and schedules made part of the Agreement.

“Insurance Schedule” means the Visier Insurance Schedule available at Visier’s Trust Site.

“Intellectual Property Rights” means all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and all similar rights.

“MSA” means this Master Software as a Service Agreement (Embedded), including (i) all schedules and exhibits expressly referenced herein and (ii) all addendums and amendments that expressly amend or are incorporated into this MSA and are properly executed by the parties hereto (or their permitted successors).

“Order” means an executed ordering document in the form provided by Visier that incorporates an express reference to this MSA.

“Order Date” means the date of signature of the last party to sign an Order.

“Participant” means a client of Customer’s services provided with access to the SaaS Services by Customer under the terms of a legal agreement that are consistent with and no less restrictive of the client than the terms of the Agreement.

“Participant Data” means, with respect to a certain Participant, the portion of Customer Data relating to that certain Participant’s business.

“Personal Data” means any information that is subject to applicable data protection laws and relates to an identified or identifiable natural person (data subject, consumer or household); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Process” means (and its variants “Processes” and “Processing” similarly refer to) any operation or set of operations performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Recipient” means the party receiving, or on whose behalf its Representatives are receiving, Confidential Information.

“Representatives” means, with respect to a party, the directors, officers, employees, subcontractors, and agents (including, without limitation, attorneys, accountants, and auditors) of the party and its Affiliates.

“Safeguards Policy” means the Customer Data Safeguards Policy available at Visier’s Trust Site.

“SaaS Services” means those certain software-as-a-service offerings identified in the applicable Order, and includes without limitation supporting functionality such as Aggregate Data, Application Content and Benchmarking and Standardizations..

“Source System” means a third-party system configured by Customer to transfer data to Visier for use with the SaaS Services.

“Supplemental Addendums” means those optional supplements to the Agreement available for incorporation at Customer’s election.

“Taxes” means all taxes, duties, VAT or similar charges imposed by any government or other authority, including without limitation federal, state, provincial, dominion, foreign, and local sales, use, withholding, and excise taxes.

“Tier 2 Support” means support provided by Visier to Customer as described in the Tier 2 Support Policy.

“Tier 2 Support Policy” means the Visier Services Tier 2 Support Policy available at Visier’s Trust Site.

“User ID” means a unique user login identifier for access to the SaaS Services.

“User Materials” means the reference, administrative, and user manuals published by Visier and made available to Customer for distribution to Participants, which may be updated by Visier from time to time, but excluding any sales or marketing materials.

“Visier Proprietary Works” means all software, technology, processes, documentation, deliverables and materials created, developed, or provided by Visier, including without limitation, all materials created in the performance of professional services.

“Visier’s Trust Site” means https://www.visier.com/trust/ with such included navigation as may be required in context.