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        <h1>Terms of Service</h1>
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        <p>Last Updated: 10 December 2020</p>

        <h2>1. INTRODUCTION</h2>

        <ol>
          <li>
            <p>
              Welcome to ControlShift! Your use of ControlShift’s services, including the services ControlShift makes available through this website and all related web sites, mobile sites, data files, visualizations and applications which link to these terms of service (the “Site”) and to all software or services offered by ControlShift in connection with any of those (the “Services”), is governed by these terms of service (the “Terms”), so please carefully read them before using the Services.  For the purposes of these Terms, “we,” “our,” “us,” “Company” and “ControlShift” refer to ChangeSprout Inc., the providers and operators of the Services.
            </p>
          </li>

          <li>
            <p>
              In order to use the Services, you (“Customer”) must first agree to these Terms. If you are registering for or using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you,” “your,” and “Customer” will also refer to that organization, wherever possible.
            </p>
          </li>

          <li>
            <p>
              You must be over 18 years of age to use the Services, and children under the age of 18 cannot use or register for the Services.
            </p>
          </li>

          <li>
            <p>
              You agree your purchases and/or use of the Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by ControlShift or any of its affiliates regarding future functionality or features.
            </p>
          </li>

          <li>
            <p>
              If you have entered into a separate written agreement with ControlShift for use of services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in these terms.
            </p>
          </li>

          <li>
            <p>
              <strong>ARBITRATION NOTICE</strong>: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND CONTROLSHIFT WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
            </p>
          </li>

          <li>
            <p>
              BY USING, DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING THE SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE SERVICES, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS.  IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU MAY NOT USE, DOWNLOAD, INSTALL, OR OTHERWISE ACCESS THE SERVICES.
            </p>
          </li>

          <li>
            <p>
              CERTAIN FEATURES OF THE SERVICES OR SITE MAY BE SUBJECT TO ADDITIONAL GUIDELINES, TERMS, OR RULES, WHICH WILL BE POSTED ON THE SERVICE OR SITE IN CONNECTION WITH SUCH FEATURES. TO THE EXTENT SUCH TERMS, GUIDELINES, AND RULES CONFLICT WITH THESE TERMS, SUCH TERMS SHALL GOVERN SOLELY WITH RESPECT TO SUCH FEATURES.  IN ALL OTHER SITUATIONS, THESE TERMS SHALL GOVERN.
            </p>
          </li>
        </ol>

        <h2>2. SERVICES AND SUPPORT</h2>
        <ol>
          <li>
            <p>
              Subject to these Terms, Company will use commercially reasonable efforts to provide Customer the Services. In the event of a service disruption, Company will use commercially reasonable efforts to minimize the impact or duration of any outage, interruption, or degradation of Services.  Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Customer’s order form.  Company will exercise commercially reasonable efforts to respond to support requests in a timely manner.
            </p>
          </li>

          <li>
            <p>
              As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.   Customer agrees, on behalf of itself and any of its employees, consultants, agents, and service providers to which Customer desires to designate as authorized users (“Users”), to provide true, accurate, current, and complete information during the registration process.  Customer further agrees (on behalf of itself and its Users) to maintain and update its personal information as needed to keep it true, accurate, current, and complete. Customer is solely responsible for maintaining the confidentiality of its account and password (and those of its Users) and for restricting access to its computers and Equipment, and Customer agrees to accept responsibility for all activities that occur under Customer’s account or password (including those of its Users). If Customer has reason to believe that its account or any of its Users accounts is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of any ID, password, device, or any credit, debit or charge card number), Customer agrees to promptly notify ControlShift. While these Terms may, from time to time, make collective references to a provision applying to Customer and its Users, Customer agrees that all obligations imposed on Customer under these Terms (or with respect to Customer’s Data) shall apply equally to each of Customer’s Users, regardless of whether expressly stated herein.
            </p>
          </li>

          <li>
            <p>
              Customer’s subscription entitles Customer access to the Services up to the limits identified in Customer’s order form (“Subscription Limits”).  In order to access the Services, Users may be required to register with an email address and password.  Each unique email address registered with the Services will constitute a separate User.  Access to the Service is subject to compliance by Customer and each User with these Terms.  Customer agrees that it is responsible for each of its User’s use of the Service and any breach by a User of these Terms shall be deemed a breach by Customer.
            </p>
          </li>

          <li>
            <p>
              ControlShift may offer a number of different tools as part of the Service (each a “Tool”).  The Tools to which your subscription provides you access are those listed in your order form.  If you wish to access additional Tools, your subscription can be modified subject to applicable additional fees.
            </p>
          </li>
        </ol>

        <h2>3. RESTRICTIONS AND RESPONSIBILITIES</h2>
        <ol>
          <li>
            <p>
              Customer will not, directly or indirectly, and will not permit others to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; (iv) remove any proprietary notices or labels; (v) attempt in any way to circumvent the Subscription Limits set forth in Customer’s order form by, among other things, allowing multiple users to use any single User account; (vi) upload or transmit via the Service or Software pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content (as determined by the Company in its discretion); (vii) use the Service or Software for any purpose that is unlawful or is otherwise prohibited or unauthorized by these Terms; (viii) use the Service or Software in any manner that in our sole discretion could damage, disable, overburden, or impair it; (ix) attempt to gain unauthorized access to the Service, or any part of them, other User accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized users); (x) modify the Service or Software in any manner or form, or use modified versions of the Service or Software, including but not limited to for the purpose of obtaining unauthorized access to the Service; (xi) use any robot, spider, scraper, or other automated means to access the Service for any purpose without the Company’s express written permission, or bypass any measures the Company may use to prevent or restrict access to the Service; (xii) impersonate another person or access another User’s account without that User’s permission or to violate any contractual or fiduciary relationships; (xiii) share account passwords with any third party or encourage any other User to do so; (xiv) misrepresent the source, identity, or content of data submitted to ControlShift; (xv) use the Service for any purpose other than Customer’s own internal business and/or personal use; (xvi) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Software or Service, features that prevent or restrict use or copying of any content accessible through the Service or Software, or features that enforce limitations on use of the Service or Software; (xvii) access the Service if Customer is a direct competitor of ControlShift, except with ControlShift’s prior written consent, or for any other competitive purposes; (xviii) collect or harvest any personally identifiable information, including account names, from the Service; or (xix) otherwise use the Software or Service in violation of any restrictions set forth herein.  Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
            </p>
          </li>

          <li>
            <p>
              Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms and will be prohibited except to the extent expressly permitted by the terms of these Terms.
            </p>
          </li>

          <li>
            <p>
              Customer represents, covenants, and warrants that Customer will use the Services only in compliance with these Terms and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
            </p>
          </li>

          <li>
            <p>
              Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, third party services and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
            </p>
          </li>

          <li>
            <p>
              In connection with Customer Data, as defined below, Customer hereby represents, warrants, and agrees that: (a) Customer has obtained the Customer Data lawfully, and the Customer Data does not and will not violate any applicable laws or any person or entity’s proprietary or intellectual property rights; (b) the Customer Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by ControlShift or its subcontractors to provide the Service; (c) all Customer Data has and will be collected by Customer in accordance with a privacy policy that permits ControlShift to have, collect, use, and disclose such Customer Data as contemplated under these Terms, and if required by applicable law, pursuant to consents obtained by Customer to do each of the foregoing; (d) subject to ControlShift’s collection, storage, use, and disclosure of Customer Data is in compliance with these Terms (and any data protection agreement entered into on even date hereof), Customer is solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Customer Data provided hereunder; (e) ControlShift may exercise the rights in Customer Data granted hereunder without liability or cost to any third party; and (f) the Customer Data complies with the terms of these Terms. Subject to ControlShift’s collection, storage, use, and disclosure of Customer Data remaining in compliance with these Terms (and any data protection agreement entered into on even date hereof), ControlShift takes no responsibility and assumes no liability for any Customer Data, and Customer will be solely responsible for its Customer Data and the consequences of sharing it hereunder.
            </p>
          </li>

          <li>
            <p>
              Customer understands that by using any of the Services, Customer may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material.  Customer agrees not to use the Service in a manner that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to Customer, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) involves any information or content that the Company deems to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) involves any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) involves any information or content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) involves any information or content that Customer knows is not correct and current.  Customer agrees that its use of the Service does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. Company reserves the right, but is not obligated, to prevent any use of the Service that Company believes, in its sole discretion, violates any of these provisions.
            </p>
          </li>

          <li>
            <p>
              Customer acknowledges that ControlShift does not manage or control the accuracy or content of the Customer Data that Customer accesses, stores or distributes through the Service, and accepts no responsibility or liability for that information regardless of whether such Customer Data is transmitted to or by Customer in breach of these Terms. ControlShift makes no warranty with respect to such Customer Data Customer may access, store or distribute through the Service. In particular, without limiting the generality of the foregoing, ControlShift makes no warranty that such Customer Data will be free of any error, virus, worm, trojan horse, easter egg, time bomb, cancelbot, or other destructive or malicious code or programs.
            </p>
          </li>
        </ol>

        <h2>4. CONFIDENTIALITY; PROPRIETARY RIGHTS; DATA PROTECTION</h2>
        <ol>
          <li>
            <p>
              Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information (and only subject to written binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such third persons). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. In recognition of the unique and proprietary nature of the information disclosed by each party, it is agreed that each party’s remedy at law for breach by the other party of its obligations under Section 4 shall be inadequate and the disclosing party shall, in the event of such breach, be entitled to seek equitable relief, including without limitation, injunctive relief and specific performance, in addition to any other remedies provided hereunder or available at law.
            </p>
          </li>

          <li>
            <p>
              As between Customer and the Company, Customer shall own all right, title and interest in and to any data related to Customer’s members, personnel, business, and systems, that Customer submits and stores via the Service (the “Customer Data”), which for the avoidance of doubt shall constitute the Proprietary Information of Customer.  Customer Data includes, without limitation, any personally identifiable information about Customer, its personnel, its customers or potential customers, to the extent provided to the Company by Customer, including information submitted by Customer during any registration process for the Services.  Customer Data also includes, without limitation, any other data accessed or obtained by Company from any Customer third-party SaaS service account accessed and monitored by Company on behalf of Customer.  ControlShift will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss or a termination of the Services or Customer’s account.  Customer is solely responsible for backing up its Customer Data on a regular basis, taking appropriate steps to safeguard and ensure the integrity of its Customer Data, and exporting its Customer Data from the Services prior to termination of Customer’s account.
            </p>
          </li>

          <li>
            <p>
              Company shall own and retain all right, title and interest in and to (a) the Services and Software, together with all improvements, enhancements or modifications thereto, (b) any metadata or telemetry regarding Customer’s use of the Services that is collected by Company, and (c) all intellectual property rights related to any of the foregoing.
            </p>
          </li>

          <li>
            <p>
              Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, runbooks created or implemented by Customer through the Services, information concerning Customer Data, and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services, provide customer support, provide individual or aggregated reports to Customer (if requested), maintain the integrity of the service (e.g. by keeping a record of currently-authorized users), and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) use and disclose such data solely in anonymized, aggregated form in connection with its business. Customer agrees that the Company may also access, preserve and disclose Customer’s (and its Users) account information, related contents, and any other Customer Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Customer Data violates the rights of third parties; (d) respond to Customer’s requests for customer service; or (e) protect the rights, property or personal safety of ControlShift, its users, or the public. No rights or licenses are granted except as expressly set forth herein.
            </p>
          </li>

          <li>
            <p>
              In order to use the Services and Software, the Company may need Customer to authorize Company to access and/or automatically retrieve data from its system(s) or third-party systems or services on Customer’s behalf.  Customer hereby represents and warrants that it has the permission, authority, and rights to allow ControlShift to so automatically access such system(s) and services and Customer hereby grants ControlShift permission to access such system(s) and services as reasonably necessary to provide the Services. ControlShift disclaims any and all liability associated with accessing and retrieving data from such system(s) and services on Customer’s (or its Users’) behalf.  In order to connect the Service with any third-party service, Customer hereby authorizes the Company to: (a) store Customer Data relating to such service; (b) access such service using Customer Data Customer provides to the Company; (c) use any materials Customer provides to Company in order to provide Customer the Service; (d) gather and export from such service any Customer Data reasonably necessary for the Company to provide the Service to Customer; and (e) otherwise take any action in connection with such service as is reasonably necessary for the Company to provide the Service to Customer. If at any time Customer does not have the right and authority to allow ControlShift automatic access to such system(s), then Customer hereby agrees to immediately disable such functionality within Customer’s account.
            </p>
          </li>

          <li>
            <p>
              Customer may choose to or Company may invite Customer to submit comments or ideas about the Service, including without limitation about how to improve the Service (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place ControlShift under any fiduciary or other obligation, and that Company is free to use the Feedback without any additional compensation to Customer, and/or to disclose the Feedback on a non confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s Feedback submission, ControlShift does not waive any rights to use similar or related ideas previously known to ControlShift, or developed by its employees, or obtained from sources other than Customer.
            </p>
          </li>
        </ol>

        <h2>5. PAYMENT TERMS</h2>
        <ol>
          <li>
            <p>
              Subject to the Terms, the Services may be provided to you without charge up to certain usage limits, and usage in excess of these limits may require purchase of additional resources and the payment of fees.  Company will submit an order form with pricing terms to Customer for approval.
            </p>
          </li>

          <li>
            <p>
              Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.  If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit, otherwise such claims are waived.
            </p>
          </li>
        </ol>

        <h2>6. TERM AND TERMINATION</h2>
        <ol>
          <li>
            <p>
              These Terms shall continue to apply until the Company terminates Customer’s account or Customer disables its subscription by emailing support@controlshiftlabs.com.  The initial term of these Terms (including the initial term for all Users added after the effective date of these Terms) shall be one month, calculated from the start date specified on Customer’s order form, and shall renew automatically for terms of the same duration (each a “Renewal Term”) unless terminated as set forth in this Section 6.
            </p>
          </li>

          <li>
            <p>
              In addition to any other remedies it may have, either party may also terminate their contractual relationship by providing the other party with thirty (30) days' written notice of termination.  Notwithstanding the foregoing, the Company shall be entitled to terminate or suspend Customer’s account immediately upon notice if the Customer materially breaches any of the terms or conditions of these Terms or in the case of nonpayment. Customer will pay in full for the Services up to and including the last day on which the Services are provided, and shall not be entitled to a refund for its early voluntary cancellation of the Services.  All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
            </p>
          </li>
        </ol>

        <h2>7. WARRANTY AND DISCLAIMER</h2>
          <p>
            Company shall provide the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  THE SERVICE MAY CALL THE SERVERS OF OTHER WEBSITES OR SERVICES SOLELY AT THE DIRECTION OF AND AS A CONVENIENCE TO USERS OF THE SERVICE (“THIRD PARTY SITES”). CONTROLSHIFT MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE INFORMATION, OR OTHER MATERIAL, PRODUCTS, OR SERVICES THAT ARE CONTAINED ON OR ACCESSIBLE THROUGH THIRD-PARTY SITES. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON SUCH SITES OR AVAILABLE THROUGH SUCH SITES, IS SOLELY AT CUSTOMER’S OWN RISK.  IN ADDITION, CONTROLSHIFT SHALL HAVE NO RESPONSIBILITY FOR ANY LOSS OF DATA OR FUNCTIONALITY FROM ANY THIRD-PARTY SERVICE MONITORED OR ACCESSED BY CONTROLSHIFT OR THAT CONTROLSHIFT’S ACCESS TO SUCH THIRD-PARTY SERVICES ON CUSTOMER’S BEHALF WILL NOT RESULT IN ANY INTERRUPTION OF SUCH THIRD-PARTY SERVICES.
          </p>

        <h2>8. LIMITATION OF LIABILITY</h2>
          <p>
            NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (THE “CAP”), IN EACH CASE, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IF A CLAIM ASSERTED BY CUSTOMER OR ON BEHALF OF CUSTOMER ARISES FROM OR RELATES TO A PARTICULAR TOOL TO WHICH CUSTOMER HAS ACCESSED OR SUBSCRIBED, THE CAP SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE PARTICULAR TOOL AT ISSUE IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.  CUSTOMER ACKNOWLEDGES AND AGREES THAT CONTROLSHIFT HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND CONTROLSHIFT.  NOTWITHSTANDING THE FOREGOING, THE CAP SHALL NOT APPLY WITH RESPECT TO CLAIMS BY CONTROLSHIFT ARISING FROM CUSTOMER’S NONPAYMENT OR UNDERPAYMENT OF FEES.
          </p>

        <h2>9. INDEMNIFICATION</h2>
          <p>
            Customer agrees to defend, indemnify and hold harmless ControlShift and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising out of or related to: (a) the Customer Data, or Customer’s provision of the Customer Data to ControlShift; (b) ControlShift’s access to any third-party software or services authorized by Customer; or (c) Customer’s use of the Services in breach of these Terms.
          </p>


        <h2>10. GOVERNING LAW; DISPUTE RESOLUTION</h2>
        <ol>
          <li>
            <p>
              <u>Governing Law.</u> These Terms shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce.  Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  Except for claims subject to arbitration pursuant to Section 10.2, the parties hereby irrevocably submit to the exclusive personal jurisdiction of the state courts located in New York, New York and federal courts located in the Southern District of New York for dispute arising from or related to these Terms.
            </p>
          </li>

          <li>
            <p>
              <u>Arbitration.</u>  For any dispute with either party (including its officers, directors, employees, agents, or other representatives), the parties hereto agree to first contact the other party and attempt in good faith to resolve the dispute informally. In the unlikely event that the parties have not been able to resolve a dispute after sixty (60) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein; provided that the Optional Expedited Arbitration Procedures shall not apply with respect to claims by other party for actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.  The arbitration will be conducted in New York, New York, before a single arbitrator, unless Customer and ControlShift agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include an award of costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses to the prevailing party. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing either party from seeking temporary, preliminary, or permanent injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.
            </p>
          </li>

          <li>
            <p>
              <u>Class Action/Jury Trial Waiver.</u> With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless the parties agree otherwise, the arbitrator may not consolidate more than one person’s claims. Customer agrees that, by entering into These Terms, Customer and ControlShift are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
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          </li>
        </ol>

        <h2>11. MODIFICATIONS AND CHANGES</h2>
        <ol>
          <li>
            <p>
              <u>Modifications to the Services.</u> ControlShift is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which ControlShift provides may change from time to time without prior notice to you. Changes to the form and nature of the Services will be effective with respect to all versions of the Services; examples of changes to the form and nature of the Services include without limitation security patches, added functionality, automatic updates, and other enhancements.  Any new features that may be added to the Site or the Services from time to time will be subject to these Terms, unless stated otherwise.
            </p>
          </li>

          <li>
            <p>
              <u>Changes to the Terms.</u> These Terms may be amended or updated from time to time without notice and may have changed since your last visit to the website or use of the Services. It is your responsibility to review these Terms for any changes. Changes to these Terms shall become effective and binding upon you at the start of your next Renewal Term.  By continuing to access or use the Services after such revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, please stop using the Services.  Please visit this page regularly to review these Terms for any changes.
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        </ol>

        <h2>12. PUBLICITY</h2>
          <p>
            Customer agrees that Company may use Customer’s trade names, trademarks, service marks, logos, domain names and other distinctive branch features in presentations, marketing materials, customer lists, financial reports and website listings for the purpose of advertising or publicizing Customer’s use of the Services.  Customer further agrees to serve as a customer reference, upon Company’s request.
          </p>

        <h2>13. MISCELLANEOUS</h2>
          <p>
            If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent. Notwithstanding the foregoing, either party may transfer and assign any of its rights and obligations under these Terms as part of a merger, acquisition, sale of substantially all assets, or similar transaction. These Terms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
          </p>



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