Terms of Service

As of 1 December 2025 (Updated with Security Incident Notification Provisions based on SEC Regulation S-P Requirements)

Article 1. Definitions.

Wherever used in these Terms, the following capitalized terms shall have the following respective meanings:

🔸 “Access” means access to or use of any Service(s) requested by Client and agreed upon by Milemarker™ as outlined in the Services Order, in each case pursuant to the terms and conditions of the Agreement.

🔸 “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to achieve Access.

🔸 “Access Term” means the period during which each Authorized User may have Access, in each case as outlined in the Services Order.

🔸 “Affiliate” means any Person that directly or indirectly controls, is controlled by, or is under common control with, a Party.

🔸 “Agreement” means the Services Order, together with these Terms and the Exhibits and Schedules, in each case as amended or supplemented from time to time in accordance with these Terms.

🔸 “Applicable Law(s)” means any international, national, federal, state or local law (statutory, common, civil or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, judgment, order or similar requirement, now or hereafter in effect, enacted, adopted, promulgated, or applied by any governmental entity or administrative agency.

🔸 “Authorized User(s)” means any employee, agent, representative, consultant, contractor or other designee of Client that is authorized by Client to be permitted Access through the use of Access Credentials. For clarity, an Authorized User shall be one individual Person, utilizing one computer or device to gain Access from a single location.

🔸 “Client” means the Person identified as such in the Services Order, on behalf of which the Services Order has been completed and executed.

🔸 “Confidential Information” shall have the meaning set forth in Section 8.1.

🔸 “Client Data” means any and all data, information and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services (for clarity, excluding System Metrics), any and all such data stored in or retrievable through the Services, any and all data derived from any of the foregoing.

🔸 “Consulting Services” means the consulting services requested by Client and agreed upon by Milemarker™ as outlined in the Services Order.

🔸 “Databases” means any and all databases in which all or any portion of the Client Data or the data of any other Person is stored.

🔸 “Data Cloud Services” means the data cloud services requested by Client and agreed upon by Milemarker™ as outlined in the Services Order.

🔸 “Design, Development and Implementation Services” means the design, development and implementation services requested by Client and agreed upon by Milemarker™ as outlined in the Services Order.

🔸 “Documentation” means all user guides, manuals, training materials, instructions, specifications, standards, requirements and other information (as updated from time to time, and whether in printed, electronic or other form) pertaining to the Services, provided or otherwise made available by Milemarker™ in connection with the Services, including without limitation the System Requirements, Service Security Standards and the Service Support Standards, in each case as may be set forth in Exhibit B attached to the Services Order or otherwise published on and made accessible through any Site(s).

🔸 “Effective Date” shall have the meaning set forth in the Services Order.

🔸 “Exhibits and Schedules” means all Exhibits and Schedules attached to the Services Order (the meaning set forth in the Services Order).

🔸 “Fee(s)” shall have the meaning set forth in Section 5.1.

🔸 “Feedback” shall have the meaning set forth in Section 7.3.

🔸 “Force Majeure” means any cause or circumstance beyond a Party’s reasonable control, including without limitation any act of God, act of government, pandemic, flood, fire, earthquake, riot, insurrection or other civil unrest, casualty or accident, war, act of terror, strike or other labor problem, communication or power line failure, Internet service provider failure or delay, failure of any hardware or third party software or application (including those that may be listed among the System Requirements), denial of service attack, or inability to obtain or retain any requisite government-issued license, permit or authorization.

🔸 “Intellectual Property Rights” means all intellectual property of any nature or kind, whether protected, created, or arising under any Applicable Law, and all right, title and interest therein and thereto, throughout the world, including, without limitation: (a) all inventions and all improvements thereto, and all patents, patent applications, continuations, continuations-in-part, divisionals and patent disclosures therefor, and all reissues, reexaminations and extensions thereof, and all rights thereunder; (b) all trademarks, service marks, trade dress, logos, brand names, trade names, domain names, corporate names and all other indicators of source or origin; (c) all works of authorship and all copyrights; and, (d) all trade secrets and all know-how.

🔸 “Person(s)” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, government or any agency or instrumentality thereof, or other juridical person recognized by Applicable Law.

🔸 “Reports” means all tangible and intangible expressions of Client Data generated, produced or made available through, or otherwise derived from, the Services.

🔸 “Security Incident” means any unauthorized access to, or use of, Client Data, Confidential Information of Client, or other nonpublic personal information of the Client that is reasonably likely to result in substantial harm or inconvenience to a client of Client.

🔸 “Site(s)” shall mean the website(s) through which the Authorized Users are granted Access.

🔸 “Service(s)” means the (i) Consulting Services, (ii) Software Access Services, (iii) Design, Development and Implementation Services, (iv) Support Services, (v) Data Cloud Services, and/or (vi) other Milemarker™ services as outlined in the Services Order.

🔸 “Services Order” means the Milemarker™ Services Order to which these Terms are attached, identifying the Service(s) to be provided by Milemarker™ to Client under the Agreement, together with the Fees payable to Milemarker™ by Client in connection therewith, and certain other information.

🔸 “Service Security Standards” means the security standards implemented by Milemarker™ in connection with the Services, as may be set forth in the Documentation.

🔸 “Software” means the proprietary (i) Milemarker™ Application Programming Interface (or “API”) Software, (ii) Milemarker™ Data Synchronization Software, (iii) any and all additional software requested by Client and agreed upon by Milemarker™ as outlined in the Services Order, and (iv) any and all enhancements and modifications to, and derivatives of, the foregoing.

🔸 “Software Access Services” means the provision of Access to the Software requested by Client and agreed upon by Milemarker™ as outlined in the Services Order, in each case through Milemarker™’s managed, cloud-based software-as-a-service.

🔸 “Support Services” means the support services requested by Client and agreed upon by Milemarker™ as outlined in the Services Order.

🔸 “System Metrics” shall have the meaning set forth in Section 4.4.

🔸 “System Requirements” shall have the meaning set forth in Section 3.1.

🔸 “Terms” shall mean these Milemarker™ Terms and Conditions of Services (the meaning set forth in the Services Order).

🔸 “Term” shall have the meaning set forth in Section 12.1.

🔸 “Milemarker™ Assets” means the Services (including, without limitation, the Software and any and all other software, software platforms, interfaces, code and algorithms), Documentation, Access Credentials, Sites, System Metrics, Reports (for clarity, not inclusive of any Client Data contained therein), Milemarker™ Confidential Information, and Milemarker™ Intellectual Property Rights.

🔸 “Milemarker™ Intellectual Property Rights” means any and all Intellectual Property Rights in and to any and all of the Milemarker™ Assets.

Article 2. Services.

🔸 Section 2.1 Subscriptions and Access Terms for Services.

Unless otherwise provided in the Services Order, each Service shall be obtained in the form of a subscription for a specified Access Term, in each case as set forth in the Services Order. Except as otherwise specified in a Services Order, subscriptions shall automatically renew for additional periods equal in duration to the expiring Access Term or for one (1) year (whichever is shorter), unless either Party provides to the other Party notice of non-renewal at least ninety (90) days prior to the end of the applicable Access Term. The Fees applicable during any automatic renewal Access Term shall be the same as those applicable during the immediately preceding Access Term unless Milemarker™ provides to Client notice of a pricing increase at least ninety (90) days prior to the end of that immediately preceding Access Term, in which case the pricing increase will be effective upon renewal.

🔸 Section 2.2 Limitations on Access.

Access shall be subject to limitations, including the following: (a) Access shall be limited to Authorized Users; (b) an Authorized User’s Access Credentials must be maintained as Confidential Information, and may not be shared with any other Person; and (c) Access Credentials may be reassigned by Client to a new individual Person replacing a then-current Authorized User who no longer requires Access.

Client acknowledges that Milemarker™ uses technical means to monitor Client’s and each Authorized User’s Access via the Access Credentials to ensure compliance with the Agreement, and Client consents to such monitoring.

Article 3. Client Compliance and Restrictions.

🔸 Section 3.1 Client Compliance.

Client shall: (a) be responsible for maintaining throughout the Access Term for each Service the minimum system requirements and security standards (collectively, “System Requirements”) necessary to support Client’s Access thereto (as set forth in the Documentation, and which System Requirements may be updated by Milemarker™ from time to time); (b) be responsible for each Authorized User’s compliance with the terms and conditions of the Agreement, and be liable for the breach by any such Authorized User of the terms and conditions thereof; (c) comply with all Applicable Law in providing Milemarker™ with access to or use of the Client Data; (d) be responsible for securing, through written agreements with Client’s customers or other applicable Persons, all such rights, licenses, consents and authorizations required in connection with the Client Data; (e) be responsible for the accuracy, quality, integrity, reliability, appropriateness and legality of all Client Data transmitted through the Services; (f) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Milemarker™ promptly of any unauthorized access to or use of the Services of which Client becomes aware; (g) maintain all Access Credentials as Confidential Information; (h) use the Services only as permitted by and in accordance with the Agreement and all Applicable Laws; and (i) comply with the terms and conditions of service applicable to all non-Milemarker™ applications, services and products used or accessed by Client in connection with the Services.

🔸 Section 3.2 Client Restrictions.

Client shall not directly or indirectly: (a) make any Service available to, or use any Service for the benefit of, any Person other than Client and its Authorized Users (and, indirectly, Client’s customers); (b) sell, resell, rent, lease, license, sublicense or distribute any Service to any Person; (c) use any Service in any manner in violation of the privacy or other rights of any Person, or for any purpose or in any manner contrary to any Applicable Law; (d) permit access to or use of any Service by Persons other than the Authorized Users; (e) copy any Service, or any portion, feature or function thereof; (f) access or use any Service in aid of any effort to build a competitive product or service; (g) disassemble, decompile, reverse engineer or otherwise attempt to derive any code or any underlying functionality or any trade secrets of or pertaining to any Service; (h) attempt to access or use any Service by any method not compliant with the System Requirements; (i) copy, reproduce, publish, distribute, display, create any derivative works based on, commercially exploit, or otherwise make any use or disclosure of, any Milemarker™ Assets for any purpose not expressly contemplated or permitted under the Agreement; (j) remove, obscure, alter or otherwise modify any copyright, trademark or other proprietary notices placed or appearing on any Milemarker™ Assets; (k) limit, impair or otherwise disrupt the integrity, performance or availability of any Service or of any data utilized in connection therewith; (l) use or interact with any Service in any manner that could limit, impair or otherwise disrupt any other Person’s use thereof; (m) attempt to gain unauthorized access to any Service or its related systems or networks; or, (n) frame or mirror all or any part of any Service.

Article 4. Milemarker™ Standards and Compliance.

🔸 Section 4.1 Availability of Services; Support Standards.

Subject to the terms and conditions of the Agreement, Milemarker™ shall: (a) make available to Client the Services as provided in the Agreement; (b) provide to Client support for the Services in accordance with the Service Support Standards (as may be set forth in the Documentation, and which Service Support Standards may be updated by Milemarker™ from time to time); and (c) use commercially reasonable efforts to make the Services available to Client 24 hours a day, 7 days a week, except for (i) scheduled downtime, for which Milemarker™ shall endeavor to provide Client reasonable advance notice and which, to the extent practicable, Milemarker™ shall endeavor to schedule between 9:00 p.m. Friday and 6:00 a.m. Monday (Eastern Time), (ii) unavailability due to emergency maintenance, for which Milemarker™ shall endeavor to provide Client reasonable advance notice, where practicable, and (iii) unavailability attributable to any Force Majeure event.

🔸 Section 4.2 Service Security Standards.

Milemarker™ has implemented, and shall maintain throughout the Term of the Agreement, administrative, physical, and technical safeguards in an effort to protect the security, confidentiality and integrity of the Services, in accordance with the Service Security Standards (as may be set forth in the Documentation, and which Service Security Standards may be updated by Milemarker™ from time to time).

🔸 Section 4.3 Milemarker™ Compliance.

Milemarker™ shall: (a) provide the Services in accordance with the terms and conditions of the Agreement and all Applicable Laws; and (b) be responsible for the performance of its personnel (including its employees and subcontractors) and their compliance with Milemarker™’s obligations under the Agreement. Notwithstanding Sections 4.1 and 4.2, Milemarker™ shall not be responsible or liable for any failure to meet the Service Support Standards, the Service Security Standards, or any other responsibilities hereunder, caused, in whole or in part, by the (non)performance, (in)adequacy, (in)accuracy, concurrency or failure of, or other issues related to, Client’s systems, system requirements, security standards, data, premises, utilities, facilities, Authorized Users or personnel.

🔸 Section 4.4 System Metrics.

Client agrees and acknowledges that, through Client’s and its Authorized Users’ Access to the Service, Milemarker™ may automatically collect usage and volume statistical information regarding such usage (collectively, “System Metrics”). Milemarker™ may use the System Metrics for any internal purpose, including, among other things, to assist in diagnosing technical problems, administering the Services, and to improve its offerings and marketing of the Services. Client agrees and consents to Milemarker™’s collection and use of the System Metrics.

🔸 Section 4.5 Change, Discontinuance or Modification of Services.

Milemarker™ reserves the right, in its sole discretion, to change, discontinue or modify, in whole or in part, any Services, or any features or functionalities thereof, from time to time, in each case upon notice to Client. If such modifications materially and adversely affect the functionality of any applicable Services, Client’s sole remedy is to terminate its subscription for any applicable Services pursuant to Section 12.3.

🔸 Section 4.6 Security Incident Notification.

Milemarker™ shall notify Client without unreasonable delay, and no later than seventy-two (72) hours after becoming aware of any Security Incident. Such notification must include, to the extent known at the time of notice: (a) a general description of the Security Incident; (b) the categories of information affected; (c) the date or estimated date of the incident; (d) the number of individuals potentially affected (if known); (e) remediation steps taken or planned; and (f) a designated point of contact for further communications. Milemarker™ shall provide supplemental updates as additional information becomes available and shall cooperate fully with Client in the investigation and remediation of any Security Incident.

Article 5. Fees and Payment.

🔸 Section 5.1 Fees.

Client shall pay to Milemarker™ all fees for all Services to which Client has subscribed, in the amounts set forth in the Services Order (collectively, “Fees”). Except as otherwise specified herein or in the Services Order: (a) Fees are based upon the Services subscribed for, and not upon actual Access during the Access Term; (b) Fee payment obligations are non-cancelable and, except as and to the extent expressly provided herein to the contrary, Fees paid are non-refundable; and (c) subscriptions for any Services purchased cannot be changed during the Access Term applicable thereto.

🔸 Section 5.2 Invoicing and Payment.

Milemarker™ shall invoice Client in accordance with the billing, contact and other information set forth in the Services Order. Client shall be responsible for providing complete and accurate billing, contact and other information called for in the Services Order, and for notifying Milemarker™ of any changes to such information. Unless otherwise provided in the Services Order, invoiced Fees shall be due net thirty (30) days from the invoice date, and all Fees shall be paid in United States dollars and made by business check, by wire transfer or ACH to a bank account specified by Milemarker™ on the applicable invoice, or by credit card (subject to an additional convenience fee in an amount equal to three percent (3%) of the invoiced amount).

🔸 Section 5.3 Overdue Fees.

In the event that any invoiced amount is not received by Milemarker™ when due, then without limiting Milemarker™’s rights or remedies: (a) such amounts shall accrue interest at the rate of 1.5% of the outstanding balance per month or, if lower, the maximum rate permitted by law; and (b) Milemarker™ may condition all subsequent subscription renewals on payment terms shorter than those specified in Section 5.2.

🔸 Section 5.4 Suspension of Services for Fees Due; Acceleration of Fees.

If any amount due and owing by Client hereunder is thirty (30) or more days overdue, Milemarker™ may, without limiting its other rights and remedies: (a) accelerate Client’s then-unpaid Fee obligations so that all such obligations become immediately due and payable; and (b) suspend all Services to Client until such amounts are paid in full. Milemarker™ shall give Client at least ten (10) days’ prior notice that its account is overdue, in accordance with Section 13.3, before so suspending Services.

🔸 Section 5.5 Payment Disputes.

Milemarker™ shall not exercise its rights under Sections 5.3 or 5.4 if and to the extent Client is disputing any invoiced amounts reasonably and in good faith, and is cooperating diligently to promptly resolve the dispute.

🔸 Section 5.6 Taxes.

Unless otherwise set forth in the Services Order, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client shall be and remain responsible for paying all Taxes associated with Client’s subscription for and use of the Services hereunder.

Article 6. Licenses.

🔸 Section 6.1 Milemarker™ License Grant.

Subject to the terms and conditions of the Agreement, Milemarker™ hereby grants to Client a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license: (a) to Access the Service(s) during the Access Term, only for Client’s own internal business purposes and for no other purpose; and, (b) upon expiration or termination of the Agreement, to maintain copies of any Reports generated by Client during the Access Term, and to use such Reports solely in accordance with the terms and conditions of the Agreement and only for Client’s own internal business purposes and for no other purpose.

🔸 Section 6.2 Client License Grant.

Subject to the terms and conditions of the Agreement, Client (for itself and on behalf of its Affiliates) hereby grants Milemarker™ a royalty-free, assignable, transferrable, sublicensable, non-exclusive license to receive, store, access, host, transmit, use, copy, reproduce, distribute, display, publish, process, reformat, reconfigure, modify, manipulate, arrange, compile, parse, aggregate, create derivative works of, and otherwise exploit, the Client Data, in each case as part of or otherwise in connection with: (a) the provision of Services to Client hereunder during the Access Term; and, (b) the exercise of its rights or performance of its duties and obligations under the Agreement.

Article 7. Intellectual Property Rights; Reservation of Rights.

🔸 Section 7.1 Milemarker™ Rights.

Client acknowledges and agrees that Milemarker™ is and shall remain the exclusive owner of all worldwide right, title and interest, including, without limitation, any and all Intellectual Property Rights, in and to the Milemarker™ Assets. Subject to the license grant set forth in Section 6.1, and except as otherwise set forth in the Agreement: Milemarker™ reserves all right, title and interest in and to the Milemarker™ Assets; Client shall have no right, title or interest in or to any Milemarker™ Assets or any portion thereof; and, nothing in the Agreement shall operate or be construed as an express or implied grant, transfer, conveyance, assignment or license to the Client of any right, title or interest in and to any Milemarker™ Assets.

🔸 Section 7.2 Client Rights.

Subject to the license grant set forth in Section 6.2, and except as otherwise set forth in the Agreement: (a) Client reserves all right, title and interest in and to the Client Data; and (b) Milemarker™ acknowledges and agrees that, as between Milemarker™ and Client, Client is and shall remain the exclusive owner of all worldwide right, title and interest in and to any and all Client Data.

🔸 Section 7.3 Feedback.

Client or its Authorized Users may, from time to time, provide Milemarker™ with suggestions, enhancement requests, recommendations, corrections or other feedback set forth in Section 6.1, or as expressly set forth in the Services Order.

🔸 Section 7.4 Further Actions.

Each Party shall (and shall cause, as applicable, their respective Affiliates, Authorized Users, employees and agents to) take such actions (including, without limitation, execution of assignments, affidavits or other documents) as the other Party may reasonably request, at its own expense, to effect, perfect, or affirm such other Party’s ownership interests and other rights, titles and interests as set forth in Article 7.

Article 8. Confidentiality.

🔸 Section 8.1 Confidential Information.

The term “Confidential Information” means all confidential and proprietary documents, information, materials and things that a disclosing Party or its Affiliates (collectively, the “Disclosing Party”) will provide or otherwise make accessible to a receiving Party or its Affiliates (collectively, the “Receiving Party”) hereunder, whether tangible or intangible, and in whatever form or medium. Notwithstanding the foregoing, “Confidential Information” shall not include any documents, information, materials and things that: (a) were generally available to the public, or otherwise part of the public domain, when received by the Receiving Party; (b) become generally available to the public, or otherwise part of the public domain, other than through breach of the Agreement by the Receiving Party; (c) can be demonstrated by the Receiving Party to have already been in its possession, or otherwise known by it, prior to the time of receipt from the Disclosing Party; (d) are received by the Receiving Party from a third Person that is in lawful possession thereof and under no confidentiality obligation to the Disclosing Party; or (e) can be demonstrated by the Receiving Party to have been independently developed by or for the Receiving Party without access to or use of the Disclosing Party’s Confidential Information.

🔸 Section 8.2 Permitted Use and Disclosure of Confidential Information.

Except as otherwise set forth in the Agreement, the Receiving Party shall: (a) use the Confidential Information provided or made accessible by the Disclosing Party hereunder solely for the purpose of enabling the Receiving Party to exercise its rights or perform its duties and obligations under the Agreement, and not for any other purpose whatsoever, (b) restrict the use and disclosure of or access to any of the Disclosing Party’s Confidential Information to the Receiving Party’s employees, agents and representatives who have a “need-to-know” the Confidential Information, (c) hold the Disclosing Party’s Confidential Information in the strictest confidence, (d) prevent and protect the Confidential Information from any unauthorized use or disclosure, and (e) implement reasonable internal controls and procedures to prevent any unnecessary or unwarranted duplication or copying of any Confidential Information.

🔸 Section 8.3 Legally Compelled Disclosures.

Notwithstanding Sections 8.1 and 8.2, in the event the Receiving Party is required by Applicable Law, subpoena or court order to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with prompt notice of the disclosure requirement so that the Disclosing Party may seek a protective order or other appropriate remedy.

🔸 Section 8.4 Ownership of Confidential Information.

Subject to the license grants set forth in Sections 6.1 and 6.2, and except as otherwise set forth in the Agreement: (a) all Confidential Information (including any and all Intellectual Property Rights therein) is and shall remain the sole and exclusive property of the Disclosing Party; and, (b) neither the Agreement nor any disclosure of Confidential Information thereunder shall operate or be construed as an express or implied grant, transfer, conveyance, assignment or license to the Receiving Party of any right, title or interest in and to the Confidential Information of the Disclosing Party.

Article 9. Representations, Warranties and Disclaimers.

🔸 Section 9.1 Mutual Representations and Warranties.

Each Party represents and warrants to the other Party that: (a) it has all corporate and other right and authority necessary to execute, deliver and perform the Agreement in accordance with its terms and conditions; (b) the execution, delivery and performance of the Agreement does not and will not violate any agreement to which it is a party or to which it is bound; (c) when executed and delivered, the Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms and conditions; and (d) except to the extent responsibility for compliance is otherwise specifically allocated hereunder, it shall comply with all Applicable Laws in exercise of its rights or performance of its duties and obligations hereunder.

🔸 Section 9.2 Milemarker™’s Provision of Services.

Milemarker™ represents and warrants to Client that it shall use commercially reasonable efforts to provide the Services in accordance with the terms and conditions of the Agreement.

🔸 Section 9.3 Client’s Fulfillment of Obligations.

Client represents and warrants to Milemarker™ that: (a) it shall use commercially reasonable efforts to fulfill its duties and obligations hereunder in accordance with the terms and conditions of the Agreement; and (b) it shall obtain all such rights, licenses, consents and authorizations as are required for Client to fulfill such duties and obligations hereunder.

🔸 Section 9.4 Disclaimers of Representations and Warranties.

BECAUSE THE SERVICES INVOLVE THE PROCESSING OF DATA TRANSMITTED TO THE SERVICES BY PERSONS OTHER THAN MILEMARKER™, MILEMARKER™ DOES NOT AND CANNOT ENSURE, REPRESENT, WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, QUALITY, INTEGRITY, RELIABILITY OR APPROPRIATENESS OF THE SERVICES OR THE DATA CONTAINED IN THE VARIOUS DATABASES UPON WHICH THE SERVICES ARE DEPENDENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES AND ALL OTHER MILEMARKER™ ASSETS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MILEMARKER™ MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT THERETO.

Article 10. Limitation of Liability.

THIS ARTICLE 10 AND SECTION 9.4 SET FORTH MILEMARKER™’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDIES. EXCEPT WITH RESPECT TO LIABILITY ARISING UNDER THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 11, AND EXCEPT WITH RESPECT TO LIABILITY ARISING UNDER THE PARTIES’ RESPECTIVE REFUND AND PAYMENT OBLIGATIONS UNDER SECTION 12.7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY: (A) FOR ANY AMOUNT IN EXCESS OF AMOUNTS PAID UNDER THE AGREEMENT DURING THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; AND (B) FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES.

Article 11. Indemnification.

🔸 Section 11.1 Indemnification by Milemarker™.

Milemarker™ shall defend Client against any claim, demand, suit or proceeding made or brought against Client by a third Person based upon: (a) an allegation that Client’s Access in accordance with the terms and conditions of the Agreement infringes or misappropriates such third Person’s Intellectual Property Rights; (b) Milemarker™’s breach of the Agreement; or, (c) the gross negligence, actual fraud or willful misconduct of Milemarker™ in connection with Milemarker™’s exercise of its rights or performance of its duties and obligations under the Agreement.

🔸 Section 11.2 Indemnification by Client.

Client shall defend Milemarker™ against any claim, demand, suit or proceeding made or brought against Milemarker™ by a third Person based upon: (a) an allegation that Client’s use of any Client Data and/or any Milemarker™ Assets in combination with any assets, materials or other things not provided by Milemarker™, infringes or misappropriates such third Person’s Intellectual Property Rights; (b) an allegation that the Client Data violates such third Person’s privacy rights or other rights; (c) a non-Milemarker™ application, product or service; (d) Client’s breach of the Agreement; or, (e) the gross negligence, actual fraud or willful misconduct of Client.

🔸 Section 11.3 Exclusive Remedy.

Article 11 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in Article 11.

Article 12. Term and Termination; Suspension.

🔸 Section 12.1 Term of Agreement.

The term of the Agreement (the “Term”) shall commence on the Effective Date and shall continue until expiration of the last to expire Access Term as set forth in the Services Order, unless earlier terminated pursuant to Sections 12.2, 12.3 or 12.4.

🔸 Section 12.2 Termination for Cause.

Either Party may terminate the Agreement for cause: (a) if the other Party breaches any term or condition of the Agreement which remains uncured as of the date thirty (30) days after notice thereof from the non-breaching Party (provided, however, that if the breach involves the failure to pay Fees in accordance with the terms or conditions of the Agreement, Client shall have ten (10) days to cure such breach following receipt of notice thereof from Milemarker™); or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

🔸 Section 12.3 Termination by Client.

Client may terminate the Agreement with respect to any Service in accordance with Section 4.5, sixty (60) days after providing notice to Milemarker™ of any material and adverse change in the functionality of such Service, such notice to be provided to Milemarker™ within thirty (30) days of Client becoming aware of the material and adverse change.

🔸 Section 12.4 Termination Without Cause.

Either Party may terminate the Agreement, without cause, at any time upon ninety (90) days’ advance notice to the other Party.

🔸 Section 12.5 Suspension of Services for System Integrity.

In addition to Milemarker™’s rights of termination under Article 12, Milemarker™ shall have the right to suspend Client’s Access, in whole or in part and without notice to Client: (a) if Milemarker™ reasonably believes that Client’s or its Authorized User’s Access represents a direct or indirect threat to the function or integrity of the Services; (b) if reasonably necessary to prevent unauthorized access to any Services, Client Data, Databases, and/or Confidential Information; and/or (c) to the extent necessary to comply with any Applicable Laws.

🔸 Section 12.6 Suspension of Services for Abuse.

In addition to Milemarker™’s rights of termination under Article 12, Milemarker™ shall have the right to suspend Services immediately upon notice to Client if, in Milemarker™’s reasonable good faith judgment, any Milemarker™ Assets provided or otherwise made available to Client hereunder are being used or disclosed in a manner contrary to the terms and conditions of the Agreement.

🔸 Section 12.7 Refund or Payment Upon Termination.

If the Agreement is terminated by Client in accordance with Section 12.2(a), or by Milemarker™ in accordance with Section 12.4, Milemarker™ will refund to Client any prepaid Fees applicable to those portions of the Access Terms for Services occurring subsequent to the effective date of termination, in each case as set forth the Services Order.

🔸 Section 12.8 Effect of Termination.

Subject to the license grants set forth in Sections 6.1(b), 6.2(b), and except as otherwise set forth in the Agreement, upon expiration or termination of the Agreement for any reason: (a) Client’s Access shall terminate effective as of the effective date of such expiration or termination; (b) Client shall, within thirty (30) calendar days after such expiration or termination, return to Milemarker™ all Milemarker™ Assets or delete, destroy and expunge all Milemarker™ Assets from any repositories, files or systems at the option of Milemarker™; and, (c) the Receiving Party shall, within thirty (30) calendar days after such expiration or termination, return all Confidential Information of the Disclosing Party or delete, destroy and expunge such Confidential Information at the option of the Disclosing Party.

🔸 Section 12.9 Client Data Portability.

Upon Client’s request, made within thirty (30) days of the effective date of expiration or termination of the Agreement, Milemarker™ will transfer to Client access to any and all subcontractor accounts utilized by Milemarker™ in connection with the Data Warehousing Services, thereby ensuring Client access to all Client Data managed by Milemarker™ in connection with the Services.

🔸 Section 12.10 Survival.

The following Articles and Sections of these Terms shall survive expiration or termination of the Agreement for any reason: Article 1; Section 3.2; Section 4.4; Section 4.5; Section 4.6; Article 5 (inclusive of all Sections thereof); Section 6.1(b); Section 6.2(b); Article 7 (inclusive of all Sections thereof); Article 8 (inclusive of all Sections thereof); Article 9 (inclusive of all Sections thereof); Article 10; Article 11 (inclusive of all Sections thereof); Section 12.2 (last sentence thereof only); Section 12.7; Section 12.8; Section 12.9; Section 12.10; and Article 13 (inclusive of all Sections thereof).

Article 13. General Provisions.

🔸 Section 13.1 Entire Agreement.

The Agreement sets forth the entire agreement between the Parties pertaining to the subject matter thereof and supersedes, supplants and replaces any and all prior agreements, arrangements or understandings between the Parties, whether written or oral, pertaining to the subject matter thereof. No amendment or modification of any provision of the Agreement shall be effective unless in writing and signed by a duly authorized representative of each Party.

🔸 Section 13.2 Article and Section Headings.

Article and Section headings in these Terms are inserted herein for convenience only and shall not affect the meaning or interpretation of the Agreement or any provisions thereof.

🔸 Section 13.3 Notices.

Except as otherwise specified in the Agreement, all notices, requests and other communications thereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) delivery by a nationally recognized overnight courier; (c) the third business day after mailing by first class mail with postage prepaid; or (d) the first business day after sending by e-mail (provided that e-mail shall not be sufficient for notices of termination or any indemnifiable claim).

🔸 Section 13.4 Governing Law and Jurisdiction.

The Agreement shall in all respects be governed by, and construed and interpreted in accordance with, the laws of the State of South Carolina without giving effect to any conflicts of law principles of said State that might refer the governance, construction or interpretation of the Agreement to the laws of another jurisdiction. The Parties irrevocably agree that all actions or proceedings in any way, manner or respect, arising out of or from or related to the Agreement shall be litigated only in courts having situs within the State of South Carolina.

🔸 Section 13.5 Specific Performance; Injunctive Relief.

In the event that a Party breaches any material provision of the Agreement, the non-breaching Party shall provide the breaching Party with notice of such breach, and the breaching Party shall have thirty (30) calendar days from receipt of such notice in which to cure any such breach (the “Cure Period”). Should the breaching Party fail to cure any such breach within the Cure Period, the non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief as an immediate remedy for any such breach.

🔸 Section 13.6 Waiver.

No waiver of any breach or default of any provision of the Agreement shall be deemed to have been made unless expressly in writing and signed by the Party against whom such waiver is charged, and any such express waiver so made shall not operate or be construed as a waiver of any subsequent breach or default of the same or any other provision of the Agreement.

🔸 Section 13.7 Severability.

Whenever possible, each provision of the Agreement shall be interpreted in such a manner so as to be valid and enforceable under Applicable Law. If the application of any provision of the Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by a court of competent jurisdiction, then the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of the other provisions of the Agreement, shall not in any way be affected or impaired thereby.

🔸 Section 13.8 Assignment; Binding Agreement.

Client shall not be permitted to assign, transfer, convey or delegate, in whole or in part, the Agreement or any of its rights, duties or obligations hereunder, whether by operation of law or otherwise, without Milemarker™’s prior written consent, which such consent may be withheld by Milemarker™ in its sole discretion. Milemarker™ shall be permitted to assign, transfer, convey or delegate, in whole or in part, the Agreement, and any of its rights, duties or obligations hereunder. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.

🔸 Section 13.9 Subcontracting.

Milemarker™ reserves the right to subcontract any of its duties or obligations hereunder (including, without limitation, the provision of any Services) to one or more subcontractors, agents, partners or Affiliates; it being understood that no such subcontract shall release Milemarker™ from its liability to Client for the performance of any such duties or obligations.

🔸 Section 13.10 Independent Contractors.

The status of the Parties hereunder shall be that of independent contractors. Neither Party is or shall be deemed an employee, agent or representative of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of the other Party, or to incur any obligation or liability or otherwise bind the other Party.

🔸 Section 13.11 Excusable Delays.

Neither Party shall be liable for any delay or failure in its performance under the Agreement (except for the payment of Fees by Client) if and to the extent which such delay or failure is caused by, or attributable to, the occurrence of a Force Majeure event.

🔸 Section 13.12 Counterparts.

The Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same agreement. Facsimile signatures, electronic signatures, or scanned original signatures (e.g., PDF) shall be deemed originals.

🔸 Section 13.13 Third-Party Beneficiaries.

There are no third-party beneficiaries under the Agreement.

🔸 Section 13.14 Publicity.

Milemarker™ may use Client’s name and logos (in a form approved by Client) to identify Client as a Milemarker™ client in Milemarker™’s general marketing materials.