Version Date: October 21, 2024

BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY PLANFUL SERVICES, CLIENT IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. CLIENT AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY CLIENT.

Planful Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY AND BETWEEN PLANFUL, INC. LOCATED AT 150 SPEAR STREET SUITE 1850, SAN FRANCISCO, CA 94105, USA (“PLANFUL”) AND THE ENTITY OR PERSON PLACING AN ORDER FOR OR ACCESSING APPLICATION SERVICES (“CLIENT”). THIS AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS SET FORTH BELOW AND ANY ATTACHMENTS, ADDENDA OR EXHIBITS REFERENCED IN THE AGREEMENT, AND ANY ORDER FORMS (AS DEFINED BELOW) THAT REFERENCE THIS AGREEMENT.

• 1. Definitions.
  • 1.1 “Agreement” means this agreement, the exhibits, addenda, and the Order Form(s).
  • 1.2 “Application Services” means Planful’s Financial Planning Services and Marketing Planning Services. For clarity, Application Services refers to each Financial Planning Services or Marketing Planning Services individually in the event that Client is only receiving one solution.
  • 1.3 “AI Features” means any and all training, self-improving, or machine learning software, algorithms, hardware, or other artificial intelligence software, programs, or tools of any kind which are features of Application Services.
  • 1.4 “Authorized User” means individual that Client authorizes to administer use of the Application Services.
  • 1.5 “Confidential Information” means this Agreement, the Application Services, Planful data security program information, Client Data, all confidential or proprietary information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information will not include information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, and (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
  • 1.6 “Client Data” means all electronic data stored on or transmitted to Application Services by Client.
  • 1.7 “Documentation” means (i) for Financial Planning Services, the on-line documentation Planful provides for use with the Financial Planning Services, which may be amended from time to time and (ii) for Marketing Planning Services, the on-line documentation Planful provides for use with the Marketing Planning Services, which may be amended from time to time.
  • 1.8 “Financial Planning Services” means Planful’s financial planning and analysis software as a service solution listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Planful.
  • 1.9 “Input Data” means any data Client inputs into the AI Features, including Prompts.
  • 1.10 “Intellectual Property Rights” means any patent, copyright, or trademark under the laws of the United States or the country where the Client is headquartered.
  • 1.11 “Marketing Planning Services” means Planful’s operational marketing software as a service solution listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Planful.
  • 1.12 “Order Form” means a document executed by both parties that details the subscriptions purchased by Client, including the subscription quantities; subscription start dates, end dates and, if applicable, any auto-renewals; associated fees; the support services; professional services; and other related details. If multiple Order Forms are executed related to this Agreement, each Order Form will each have a unique identification and each such Order Form will form a separate contract between the parties.
  • 1.13 “Output Data” means the summaries and other content generated by AI Features, including as a result of processing of Client Data.
  • 1.14 “Prohibited Data” means with regards to Client’s use of the AI Features, personally identifiable information (including but not limited to personal health information, or any data that is considered ‘special’ or ‘sensitive’ under any law, regulation, or statue that is applicable to Client or Planful).
  • 1.15 “Prompt” means the question or other request a user submits to an AI Features.
  • 1.16 “Subscription Term” means the ordering period during which the Application Services are available to Client for use pursuant to the Order Form.
  • 1.17 “Trial” means temporary access to Trial Services for which no fees are charged, subject to the terms and conditions of this Agreement
  • 1.18 “Trial Services” means any and all corrections, updates, modifications, releases, versions, and enhancements to Application Services which have not been generally released by Planful, which Client has received access to free of charge.
• Provision of Services.
  • 2.1 License Grant.  Subject to the terms and conditions of this Agreement, Planful grants to Client during the Subscription Term the worldwide, non-exclusive, revocable, limited, non-transferable, royalty-free right for the Authorized Users to access and use the Application Services consistent with the Documentation and the Order Form solely for its internal business purposes or as otherwise indicated in the applicable Order Form. Planful will make the Services available to Client in accordance with service levels set forth at https://planful.com/planful-sla/. Planful may update the Application Services during the Subscription Term, however, at no time will an update materially diminish the function of the Application Services.
  • 2.2 Restrictions. The license granted in Section 2.1 is conditioned upon Client’s compliance with this Agreement. Client shall not directly or indirectly: (a) permit any third party to access the Application Services except as permitted herein or in an Order Form, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Application Services for commercial time sharing, outsourcing or otherwise commercially exploit the Application Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Application Services, other than on Client’s own intranets; (f) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services; (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services or Documentation or (h) use the Application Services in violation of Planful’s Acceptable Use Policy, which may be updated from time to time.
  • 2.3 Access and License to Client Data. During the Subscription Term, Client grants to Planful a non-exclusive, worldwide, royalty-free, fully paid-up right and license to copy, access, transmit and otherwise process the Client Data to provide the Application Services to Client as set forth in this Agreement. Planful will not: (a) access Client Data except (i) to provide the Application Services and the associated support services; (ii) to prevent or address service, security or technical problems with the Application Services; (iii) to monitor Client’s use of the Application Services and confirm Client’s compliance with the Agreement; (iv) as compelled by law; or (v) as Client expressly permits in writing. Planful may aggregate de-identified information regarding Client’s usage and configuration metrics of Application Services (which in no event shall include Client Data) with that of other Planful clients and use such aggregated Client services data as part of the Application Services.
  • 2.4 Client Responsibilities.  Client shall be responsible for Authorized Users’ compliance with this Agreement and for Client Data. Client shall not (i) use the Application Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Application Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, (iii) interfere with or disrupt the integrity or performance of the Application Services or third party data contained therein, or (iv) attempt to gain unauthorized access to the Application Services or Planful’s related systems or networks. Client shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services, and notify Planful promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Application Services and all charges related thereto. In addition to the above restrictions, Client shall not (x) input any Prompts which contain Prohibited Data; or (y) use the AI Features in violation of Planful’s AI Acceptable Use Policy.
  • 2.5 Professional Services. If Client purchased professional services from Planful, Planful will provide Client with professional services in accordance with the Professional Services Addendum attached hereto as Exhibit A. Exhibit A shall only apply if Planful’s Professional Services team provides the professional services. Client may choose to involve third parties to implement the Application Services. Client acknowledges that any third parties implementing the Application Services are not Planful’s agents. Planful shall not be liable for any professional services, including the implementation of Application Services, performed by authorized third parties (“Planful Partners”) or any unauthorized third parties. In the event there are any issues with the implementation of Application Services performed by Planful Partners, Client shall inform Planful without undue delay. Planful shall work with Client in good faith to assist Client in finding an appropriate path to remediation.
  • 2.6 Trials and Trial Services.
    • (a) Offering of Trial. If Client registers or otherwise accepts a Trial, Planful shall make Trial Services available to Client free of charge until the earlier of (i) the incorporation of Trial Services into the Application Services or (ii) termination by Planful in its sole discretion. Planful shall have sole discretion as to whether Client is eligible for a Trial.
    • (b) Trial Disclaimers. ANY CLIENT DATA CLIENT ENTERS INTO THE TRIAL SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE TRIAL SERVICES BY OR FOR CLIENT DURING A TRIAL WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SAME APPLICATION SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORT SUCH CLIENT DATA, BEFORE THE END OF THE TRIAL PERIOD. CLIENT CANNOT TRANSFER CLIENT DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE TRIAL TO APPLICATION SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CLIENT PURCHASES A SUBSCRIPTION TO APPLICATION SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CLIENT MUST EXPORT CLIENT DATA BEFORE THE END OF THE TRIAL PERIOD OR CLIENT DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES” SECTION AND “INDEMNIFICATION BY PLANFUL” SECTIONS BELOW (SECTIONS 7.1 AND 7.2), DURING THE TRIAL ALL FEATURES AVAILABLE THROUGH THE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PLANFUL WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES FOR THE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PLANFUL’S LIABILITY WITH RESPECT TO THE TRIAL SERVICES PROVIDED DURING THE TRIAL SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE FOREGOING, PLANFUL AND ITS AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) USE OF THE TRIAL SERVICES DURING THE TRIAL PERIOD WILL MEET REQUIREMENTS, (B) USE OF THE TRIAL SERVICES DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PLANFUL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT AND CLIENT’S AUTHORIZED USERS USE OF THE TRIAL SERVICES DURING THE TRIAL PERIOD AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
    • (c) Trial Services. Planful may make Trial Services available to Client at Planful’s sole discretion. Access to and use of Trial Services is subject to the terms and conditions of this Agreement. In the event there is a conflict between this Section of this Agreement and any other Section of this Agreement, this Section shall control. Trial Services are offered to Client free of charge. Client acknowledges and agrees that Planful in its sole discretion and for any or no reason, may terminate Client’s use of or access to Trial Services or any part thereof. Client agrees that any termination of Client’s use of or access to Trial Services may be without prior notice, and Client further agrees that Planful will not be liable to Client or any third party for such termination. Client is solely responsible for exporting Client Data from Trial Services, if applicable, prior to termination of Client’s access to Trial Services for any reason, provided that if Planful terminates Client’s account, except as required by law, Planful will provide Client a reasonable opportunity to retrieve Client Data.
    • (d) Trial Services Disclaimers. NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES” SECTION AND “INDEMNIFICATION BY PLANFUL” SECTIONS BELOW (SECTIONS 7.1 AND 7.2), TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PLANFUL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO TRIAL SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PLANFUL’S LIABILITY WITH RESPECT TO TRIAL SERVICES SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE FOREGOING, PLANFUL AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF TRIAL SERVICES WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF TRIAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH TRIAL SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PLANFUL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF TRIAL SERVICES, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
• 3. Intellectual Property Ownership.

  As between Planful and Client, Client owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Client Data. As between Planful and Client, Planful owns all right, title, and interest, including all related Intellectual Property Rights, in and to the Application Services and Documentation. The foregoing also includes any and all Application Services system performance data and machine learning based upon metadata (and not Client Data), including machine learning algorithms, and the results and output of such machine learning. Planful retains all Intellectual Property Rights arising from any support services. No jointly owned intellectual property is created under or in connection with this Agreement. Planful shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Application Services any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Application Services.

  As between Planful and Client, the content Client uploads into the AI Features is Client Data. Client is solely responsible for Client Data that Client uses within the AI Features as well as any Outputs based on Client Data. Planful assigns to Client its rights in and to any Outputs. Notwithstanding the foregoing, Client acknowledges that Outputs are generated by machine learning technology based on probability, and may be similar to or the same as Outputs provided to other customers, and no rights to any Outputs generated, provided, or returned by the AI Features for or to other customers are granted to Client under this Agreement. FURTHER, OUTPUT GENERATED, PROVIDED, OR RETURNED BY THE SERVICE MAY CONTAIN INACCURACIES OR FALSE INFORMATION. ANY OUTPUT IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND AND IS NOT SUBJECT TO THE INFRINGEMENT DEFENSE IN SECTION 7.1.

  Client is solely responsible for independently verifying all Outputs and is solely responsible for its use of Outputs. Client must ensure that Client’s use of AI Features complies with the Agreement. Planful may remove any Prompt or Output from at any time for any reason without notice to Client, such as for legal or security reasons or if the Prompt or Output violates the Agreement.

• 4. Payment Terms
  • 4.1 Fees; Payment. Client shall pay Planful, directly or through the Reseller with which Client contracted, in accordance with the amounts and dates specified on the Order Form. All Fees will be invoiced in advance in accordance with the Order Form. In the event the Agreement automatically renews pursuant to Section 5.1 herein, the Fees will be invoiced in advance and in accordance with any uplift, if applicable, set forth on the Order Form applicable to the previous Subscription Term. All invoices that are more than 30 days overdue, and all credit accounts that are delinquent, shall be assessed a 1.5% late payment charge (or if this exceeds the legally permitted maximum, the highest legal rate under applicable law) for each month the invoice is not paid or the account is delinquent. Client will reimburse Planful for all reasonable costs (including reasonable attorneys’ fees) incurred by Planful in connection with collecting any overdue amounts. Except as otherwise specified in this Agreement payment obligations are non-cancelable and fees paid are non-refundable, and the subscriptions purchased cannot be decreased or exchanged for alternative subscriptions. If any amount owed by Client is thirty (30) days or more overdue, Planful may, with seven (7) days’ prior notice to Client, without limiting Planful’s other rights and remedies, suspend Application Services and access to data until such amounts are paid in full.
  • 4.2 Taxes. All fees are exclusive of all sales and use taxes, value-added taxes, excise taxes, levies, or duties which may be imposed by applicable national or federal, state/provincial or local municipalities relating to Client’s purchase of subscriptions or use of the Application Services (the “Taxes”), and Client will be responsible for payment of all such Taxes. Unless Client provides Planful with evidence of its sales tax exemption, Planful will invoice Client, and Client shall pay Planful all relevant taxes payable related to Client’s purchases, excluding taxes based on Planful’s net income. Client will pay all fees free and clear of, and without reduction for, any such Taxes, including withholding taxes imposed by any country. Client will provide receipts issued by the appropriate taxing authority to establish that such Taxes have been paid.
• 5. Agreement Term; Subscription Term; Termination.
  • 5.1 Term; Termination. This Agreement begins on the Effective Date and, unless earlier terminated as set forth below or otherwise in this Agreement, will continue while there is an active Subscription Term. If this Agreement has not been terminated early in accordance with this section, each subscription described in an Order Form will continue for its Subscription Term. Unless otherwise specified in an Order Form, each subscription will automatically renew after its initial term for successive one (1) year terms, unless either party provides the other party with written notice of termination of such subscription no less than ninety (90) days before the expiration of the applicable Subscription Term. Notwithstanding the foregoing, any promotional or one-time priced subscription will not be subject to auto-renewal. Either party may terminate this Agreement (or any relevant Order Form) for cause (i) upon the other party’s material breach that remains uncured for thirty (30) days following written notice, except that in the event of a breach of Sections 2.2 or 3, for which the cure period is five (5) days following written notice; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
  • 5.2 Effects of Termination; Survival. Upon expiration of this Agreement in the event it does not automatically renew or is not renewed by the parties or termination of this Agreement: (a) all subscriptions, licenses, right to use or access the Application Services will cease; (b) at Client’s written request made within 28 days after such termination or expiration, Planful will either return Client Data to Client or destroy or permanently erase Client Data; (c) for Planful’s material breach of the Agreement, Planful will refund to Client amounts owed to Client in respect of unused Application Services as of the effective date of the termination; and (d) Sections 1, 2.3, 3, 4, 5.2, 6.2, and 7 through 10 will survive. In the event Client does not request either deletion or return of Client Data, Planful will permanently erase Client Data following the expiration of the 28-day period.
• 6. Representations and Warranties.
  • 6.1 Limited Warranty by Planful.
    • (a) Conformity with Documentation. Planful warrants that Application Services will perform substantially in accordance with the applicable Documentation when used in accordance with this Agreement for the Subscription Term. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Application Services has resulted from installation, deployment, use, maintenance or support not in accordance with this Agreement or the Documentation, modification by Client, an Authorized User, or a third party not authorized by Planful, force majeure, or any breach of this Agreement by Client or an Authorized User. In the event of an Application Services warranty claim, Client’s sole and exclusive remedy and Planful’s entire obligation and liability shall be, at Planful’s sole option, to either (i) provide a correction, update or upgrade of the Application Services, (ii) correct or replace the Application Services, or (iii) refund Client, directly or through the Reseller with which Client contracted, a pro-rated amount of the applicable Fees pre-paid by Client covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination and terminate this Agreement. All warranty claims must be made to Planful in writing within the Subscription Term.
    • (b) Malicious Code. Planful warrants that Planful tests Application Services for all known software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”). To Planful’s knowledge, Application Services do not contain Malicious Code.
  • 6.2 WARRANTY DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, PLANFUL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE APPLICATION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EXCEPT AS PROVIDED IN SECTION 6.1.
• 7. Indemnification.
  • 7.1 Intellectual Property Indemnification by Planful. Planful will defend Client against any claim, demand, suit or proceeding (“Claim”) made or brought against Client by a third party alleging that Client’s use of the Application Services in accordance with this Agreement infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Client from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Planful under a settlement of, such Claim made in accordance with the terms of Section 7.4 (Indemnity Process). The foregoing obligations do not apply to any Claim based on or arising from: (A) any modification of the Application Services not done by Planful or strictly in accordance with Planful’s written instructions, if the Claim would not have arisen but for such modification; (B) any failure by Client to implement updates or upgrades to the Application Services as supplied by Planful, if the Claim would not have arisen had such update or upgrade been implemented; (C) the combination, operation, or use of the Services with non-Planful programs, data or documentation not recommended by the Documentation or Planful in writing, if such infringement would have been avoided by the use of the Application Services without such combination, operation or use; (D) any use of the Application Services that is not expressly permitted under this Agreement or the Documentation, (E) Client’s continued use of infringing Application Services after Planful, at no additional charge, supplies or offers to supply modified or replacement non-infringing Application Services as contemplated under Section 7.2 below; (F) the Client Data; (G) infringement or misappropriation resulting from Output; or (H) Trials, Trial Services, or Beta Services.
  • 7.2 Intellectual Property Infringement Remedy. If Planful receives written notice from Client of an infringement or misappropriation Claim arising directly out of the Application Services (and not arising subject to the exceptions stated in Section 7.1), Planful may in its discretion and at no cost to Client either (i) modify the Services so that they no longer infringe or misappropriate; (ii) obtain a license for Client’s continued use of the Application Services in accordance with this Agreement; or (iii) if (i) and (ii) are not practicable despite Planful’s reasonable efforts, then Planful may terminate Client’s subscription to the infringing Application Services and refund Client a pro-rated amount of any prepaid fees covering the remainder of the Subscription Term of the terminated subscription. This Section 7 states Planful’s sole liability, and Client’s exclusive remedy, for any infringement or misappropriation of third-party intellectual property rights by the Application Services.
  • 7.3 Intellectual Property Indemnification by Client. Client will defend Planful against any Claim made or brought against Planful by a third party alleging that Client Data infringes on a third party’s Intellectual Property Rights, and will indemnify and hold harmless Planful from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Client under a settlement of such Claim made in accordance with the terms of Section 7.4 (Indemnity Process).
  • 7.4 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the Claim to the indemnifying party; (b) giving the indemnifying party, at the indemnifying party’s expense, sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability for the Claim without acknowledgment by the indemnified party of fault or wrongdoing); (c) providing to the indemnifying party all available information in its possession and reasonable assistance in connection with the Claim, at the indemnifying party’s request; and (d) not compromising or settling such Claim. The indemnified party may otherwise participate in the defense of the Claim, at the indemnified party’s sole expense (not subject to reimbursement).
• 8. Limitation of Liability.
  • 8.1. LIMITATION OF DAMAGES. NEITHER PARTY WILL BE RESPONSIBLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF CLIENT DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE APPLICATION SERVICES, ANY INTERRUPTION, INACCURACY OR ERROR IN THE DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 8.2. LIMITATION OF AMOUNT. EXCEPT FOR CLIENT’S PAYMENT OBLIGATIONS FOR APPLICATION SERVICES FEES DUE IF UNPAID, EACH PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, AND DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PLANFUL NOR CLIENT SHALL BE LIABLE FOR AGGREGATE LIABILITY THAT EXCEEDS THE SUMS ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM(S) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT FROM WHICH THE CLAIM AROSE.

   

  The limitations of liability set forth in this Section 8 do not apply to the extent prohibited by law.
  No Claim against Planful may be brought more than one year after the events or facts giving rise to such claim have arisen. The limitations of liability and exclusions of damages in this Section 8 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.

• 9. Information Protection.
  • 9.1 Confidentiality. Each party acknowledges that in connection with this Agreement it may obtain Confidential Information of the other party. The Receiving Party shall not access or use, or permit the access or use of, the Confidential Information of the Disclosing Party other than as necessary to perform the Receiving Party’s obligations or exercise its rights hereunder. The Receiving Party may not knowingly disclose, or permit to be disclosed, the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, except that the Receiving Party may disclose the Disclosing Party’s Confidential Information solely to the Receiving Party’s employees, officers, directors, consultants, contractors, agents or advisors (“Representatives”) who have a need to know for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential consistent with this Agreement. The Receiving Party acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement. The Receiving Party agrees to exercise due care in protecting the Disclosing Party’s Confidential Information from unauthorized use and disclosure and will not use less than a reasonable degree of care. If the Receiving Party or any of its Representatives is required pursuant to a judicial or other governmental order or proceeding to disclose any Confidential Information of the Disclosing Party, then, to the extent permitted by applicable law, the Receiving Party shall promptly notify the Disclosing Party of such requirement prior to disclosure so that the Disclosing Party can seek a protective order or other remedy. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. Except as provided in Section 6.1, neither party makes any warranties or representations in this Agreement or in any prior dealings between the parties related to the accuracy, completeness, or applicability of its Confidential Information.
  • 9.2 Data Privacy. Planful will comply with its Privacy Policy, which will be updated from time to time. For Clients subject to General Data Protection Regulation or the California Consumer Privacy Act, Planful agrees to comply with its data processor obligations under the applicable data processing addendum (“DPA”). Client acknowledges that Planful has no responsibility or liability for any content of the data Client processes with the Application Services. Client further acknowledges and agrees that (i) the Application Services function only as a tool or vehicle for data processing and (ii) Planful cannot and does not control the jurisdiction where the data originates. Client shall ensure that Client Data and Client’s use of the Application Services comply with applicable data protection and privacy laws, especially with laws that apply to the use or transmission of sensitive information, personal data or information or personally identifiable information.
• General.
  • 10.1 Notices. All notices given under this Agreement shall be in writing and shall be deemed given upon receipt. All notices shall be sent to the parties at their respective address on the Order Form, or to such email address or address as subsequently modified by written notice given in accordance with this section. For Planful, all legal notices must be addressed to legal@planful.com.
  • 10.2 Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to an entity that acquires all or substantially all of the assets or equity of the assigning party; provided, further that the party receiving the assignment assumes all of the rights of the assigning party. Any attempted assignment in violation of the foregoing will be null and void.
  • 10.3 Governing Law; Venue; Dispute Resolution. If Client is domiciled in a country North America or South America, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of California, USA, without regard to conflicts of law provisions. If Client is domiciled in a country in Europe, Middle East, or Africa, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of law provisions. If Client is domiciled in a country in India subcontinent, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws India, without regard to conflict of law provisions. If Client is domiciled in a country in Asia Pacific or Oceania, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of Australia, without regard to conflict of law provisions. Neither the U.N. Convention on Contracts for the International Sale of Goods nor UCITA will apply. This Section shall not preclude parties from seeking provisional/equitable remedies in aid of arbitration from a court of appropriate jurisdiction. Except for disputes related to nonpayment of Fees, which shall be settled by litigation, any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, if Client is headquartered outside of Europe, the Middle East or Africa (“EMEA”), shall be determined by final and binding arbitration administered by JAMS in San Francisco, California, USA before: (a) one arbitrator if the amount of the claim(s) is less than One Million Dollars ($1,000,000); or (b) three (3) arbitrators if the amount of the claim is equal to or greater than One Million Dollars ($1,000,000) (with each party choosing one arbitrator and the two selected choosing the third arbitrator). The arbitration shall be administered by JAMS pursuant to the following JAMS Rules: (i) if both parties to the Agreement are based in the United States (even if one has a parent company located outside the United States) and the amount of the claim(s) is less than $1,000,000, the JAMS Streamlined Arbitration Rules and Procedures; if both parties are located in the United States (even if one has a parent company located outside the United States) and the amount of the claim(s) is equal to or greater than $1,000,000, the JAMS Comprehensive Arbitration Rules and Procedures; and (iii) if one of the parties to the Agreement is based outside the United States but not in EMEA, the JAMS International Arbitration Rules and Procedures. In the foregoing examples, the Agreement is governed by the laws applicable in, and the arbitration panel shall apply the laws applicable in, the State of California, USA (excluding its principles of conflicts of laws). In the event that one of the parties is headquartered in EMEA and such party has not entered into this Agreement through a US subsidiary, then the arbitration shall be administered by JAMS in London using the JAMS International Rules and Procedures, and applying the laws of England and Wales. In any scenario, judgment on the arbitral award may be entered in any court having jurisdiction thereof. This Section shall not preclude parties from seeking provisional/equitable remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration panel shall, in the arbitral award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator(s) and the reasonable attorneys’ fees (and accountant’s fees) of the prevailing party, for payment by the non-prevailing party, and shall determine the prevailing party for this purpose.
  • 10.4 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Application Services. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
  • 10.5 Export Compliance. The Application Services may be subject to U.S. and foreign export control laws. Client agrees to comply with all laws and regulations of the United States and other countries where the Application Services are used by Client to ensure that they are not exported, directly or indirectly, in violation of such laws.
  • 10.6 Force Majeure. Neither party shall be liable for its inadequate performance under this Agreement caused by any condition beyond the reasonable control of the affected party, including but not limited to acts of God, acts of government, pandemics, third party criminal acts, acts of terror or civil unrest. The affected party shall use its best efforts to mitigate, avoid or remove such cause or non-performance and to restore performance to normal level as quickly as possible whenever such causes are removed.
  • 10.7 Insurance. Planful shall maintain, at its expense, during the Subscription Term workers’ compensation insurance as required by applicable law, and commercial general liability insurance, errors and omissions liability insurance, cyber security insurance, and umbrella liability insurance from financially sound insurance companies having coverages and limits of liability that are commercially reasonable. Upon request, Planful will provide Client with proof of such insurance.
  • 10.8 Waiver; Amendment; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is determined to be unenforceable by any tribunal, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect.
  • 10.9 Entire Agreement. This Agreement, the Order Form(s), and Addenda form the entire agreement between Client and Planful regarding the subject matter hereof. Any conflict between this Master Subscription Agreement, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form in date order with the most recent Order Form being of highest precedence; (b) any SOW; and (c) this Master Subscription Agreement. This entire agreement supersedes all prior or contemporaneous negotiations or agreements, both oral and written, between the parties regarding its subject matter. Any preprinted terms on any Client purchase order will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes.

 

EXHIBIT A

PROFESSIONAL SERVICES ADDENDUM

• A. Professional Services Provisions
  1. Applicability. This Professional Services Addendum applies only in the event that Planful is providing Professional Services. Accordingly, this Professional Services Addendum shall not apply in the event that a third party is providing professional services to Client.
  2. Description of Professional Services. Planful will provide the services (“Professional Services”) and deliverables (“Deliverables”) to Client as described in a Statement of Work executed by an authorized representative of both parties.
  3. Client’s Obligations. Client agrees to provide assistance, cooperation, information, equipment, data, a suitable work environment and resources reasonably necessary to enable Planful to perform the Professional Services. Client acknowledges that Planful’s ability to provide Professional Services as set forth herein may be affected if Client does not provide reasonable assistance as set forth above.
  4. Project Management. Each party shall designate a Project Manager who shall work together with the other party’s Project Manager to facilitate an efficient delivery of Professional Services.
  5. Professional Conduct. Each party agrees to conduct themselves in a professional and courteous manner at all times. In an event of either party’s breach of this provision, the non-breaching party shall report the breach to the breaching party’s project lead and the parties agree to work in good faith to correct the non-conforming conduct.
  6. Change Order. In order to change the Description of Professional Services set forth above, Client will submit a written request to Planful specifying the proposed changes in detail and Planful will provide an estimate of the charges and anticipated changes in the delivery schedule that will result from the proposed change in Professional Services. Planful will continue performing the Professional Services in accordance with this Professional Services Addendum until the parties agree in writing on the change in scope of work, scheduling, and fees.
  7. License. Planful grants Client a perpetual, non-exclusive, non-transferable, royalty-free license to use all developments created solely for Client under this Professional Services Addendum (“Service Developments”).
  8. Proprietary Rights. Planful shall retain all title, copyrights, patents, patent rights, trade secrets, trademarks and other proprietary or intellectual property rights in the Service Developments.
  9. Warranty. Planful warrants for ninety (90) calendar days from the performance of any Professional Services that such Professional Services shall be performed in a manner consistent with generally accepted industry standards. Client must report in writing any breach of the warranty contained in this Section to Planful during the relevant warranty period, and Client’s exclusive remedy and Planful’s entire liability for any breach of such warranty shall be the re-performance of the Professional Services, or if Planful is unable to perform the Professional Services as warranted, Client shall be entitled to recover the fees paid to Planful for the nonconforming Professional Services.
  10. Acceptance. Upon completion of any Deliverable, Planful shall submit the Deliverable to Client. At Client’s request, Planful will demonstrate to Client the functionality of the Deliverable. Client shall be responsible for any additional review and testing of such Deliverable in accordance with any applicable acceptance criteria and test suites. If Client, in Client’s reasonable discretion, determine that any submitted Deliverable does not perform the functional requirements specified for such Deliverable in this Professional Services Addendum, Client shall have five (5) calendar days after Planful’s submission of the Deliverable (“Acceptance Period”) to give written notice thereof to Planful specifying the deficiencies in detail. Planful shall use reasonable efforts to promptly cure any such deficiencies. After completing any such cure, Planful shall resubmit the Deliverable for review and testing as set forth above. Upon accepting any Deliverable submitted by Planful, Client shall provide to Planful a written acceptance of such Deliverable. Notwithstanding the foregoing, if Client fails to reject any Deliverable within the Acceptance Period in the manner described above, such Deliverable shall be deemed accepted at the end of the Acceptance Period. In the event any Deliverable is not accepted by Client as specified above after the third submission and Acceptance Period, either of Client or Planful may terminate this Professional Services Addendum without further liability to either party, provided however, that Client shall not be relieved of its payment obligations with respect to the accepted Professional Services delivered prior to any such termination.
  11. Final Notice. In the event that Planful has made a request and that Client has not responded promptly within ten (10) business days with the requested information, Planful may issue a Final 30-Day Project Notice (“Final Notice”) to Client. If Client does not respond as requested to the Final Notice, Client agrees that Planful shall be relieved of any further obligations, which has not been completed under the then current Statement of Work. In addition, all professional services fees associated with the SOW shall be considered earned in full as of the expiration of the thirty (30) day period. All services requested by Client following the expiration of the aforementioned thirty (30) day period will require Client and Planful to execute a new Statement of Work and Client shall be responsible for any related professional services fees contemplated there under.
  12. Third Party Sub-contractors. Planful reserves the right to use third parties (who are under a strict covenant of confidentiality with Planful), including, but not limited to, offshore sub-contractors to assist with the data migration, configuration, implementation and custom code development processes.
• B. Payment Provisions
  1. Fees. Professional Services shall be provided under this Professional Services Addendum at the rates and terms set forth in the applicable Order Form.
  2. Expenses. Client will also be responsible for reimbursing Planful for all Planful’s reasonable travel and living expenses (“Expenses”) incurred in each services engagement. All Expenses will be pre-authorized in writing by Client, invoiced promptly and due upon receipt.
• C. Miscellaneous
  1. Product Mix. Client acknowledges that the Professional Services acquired hereunder were ordered separately from the Application Services described on the Order Form and Client may acquire either Application Services or Professional Services without acquiring the other.
  2. Independent Contractor. Both parties agree that Planful is an independent contractor and, as such, neither Planful nor Planful’s personnel shall be considered Client’s employee(s). Therefore, Client is neither liable nor responsible for withholding or deducting any sums for federal or state income taxes, social security, health, workers’ compensation, and disability insurance coverage, pension or retirement plan, or the like.
  3. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, parties agree to not solicit for hire any of Planful’s or Client’s employees or sub-contractors without the other party’s written consent. The foregoing shall not apply to general solicitations for employment.