ARC Master Subscription Agreement

This ARC Master Subscription Agreement (“Agreement”) is entered into between TPG Interactive, LLC, with an address at 17757 US Highway 19 N, Suite 200, Clearwater, Florida 33764, U.S.A. (referred to as “TPGi”) and you (referred to as “You”) and shall be effective as of the date You accept the terms of this Agreement by as set forth below (“Effective Date”).

Be sure to carefully read and understand all of the rights, obligations and restrictions set forth in this Agreement. BY AGREEING TO THE TERMS OF THIS AGREEMENT, OR USING OR ACCESSING THE SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT USE OR ACCESS THE SOFTWARE.

It is agreed between the parties that:

1. Definitions. In this Agreement the following defined terms shall have the meanings set forth below:

   “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party.

   “Agreement” means this Master Subscription Software Agreement (including any exhibits and attachments), any Order Forms and any other documents incorporated herein as such may be updated from time to time by TPGi.

   “Business Hours” means Monday thru Friday 8:00 AM to 5:00 PM Eastern Time.

   “Confidential Information” means information relating to a party, its business or assets or that of any of its clients, customers, affiliates, subcontractors or other persons that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, inventions, trade secrets, know-how, customer lists, business plans, promotional and marketing activities, and finances), that is or previously has been disclosed or otherwise comes into a party’s possessions as a result of this Agreement; provided, that Confidential Information shall not include any information that: (i) is or becomes publicly available through publication, inspection of commercially available product, or otherwise without breach of this Agreement, unless further disclosure is otherwise prohibited by law; (ii) was known to the receiving party at the time of its receipt; (iii) is received from a third party without an obligation of confidentiality; or (iv) has been independently developed by the receiving party prior to the date hereof without the use or benefit of the disclosing party’s Confidential Information or intellectual property.

   “Customer” means the customer listed in an Order Form, MSA or SOW.

   “Documentation” means the user guide, help information, content and/or other documentation and materials accompanying and associated with the Software, including associated media, printed materials and any “online” or electronic documentation provided by TPGI for use with the Software.

   “Effective Date” means the start date of this Agreement as set out in the first Order Form.

   “End User” means Customer’s employees, representatives, contractors or other individuals who are authorized by You to Use the Software.

   “Fees” means the fees set out in an Order Form, MSA, SOW that are payable by You during the Subscription Term.

   “Order Form” means the order form evidencing the initial subscription (which shall include online confirmation) for the Software and any subsequent Order Forms specifying, among other things, the applicable Fees.

   “MSA” means any Master Software Agreement, Master Consulting Agreement or any other agreement between the parties which incorporates this Agreement (including any attachments and SOWs, a “SOW”).

   “Planned Maintenance” means maintenance, Upgrades, updates installation of new versions and repairs which are non-critical and not urgent, to hardware and software.

   “Software” means the ARC® platform as further set forth in an Agreement, Order Form, SOW or MSA (for purposes of clarity, Software includes all modules available now or added in the future).

   “Subscription Start Date” means the subscription start date as set out in each Order Form, MSA or SOW.

   “Subscription End Date” means the subscription end date as set out in each Order Form, MSA or SOW.

   “Term” means the term of this Agreement which start on the Effective Date and continues until the date on which all subscription Terms included in all Order Forms, MSAs and SOWs have expired or been terminated.

   “Updates” means subsequent versions or releases of the Software that are made available to You pursuant to this Agreement, but it does not include any releases or future products or other Software TPGi licenses or otherwise makes available separately or subject to a separate subscription arrangement.

   “Use” means to access and use the Software, as more fully described in an Order Form, SOW or MSA solely in connection with a Customer’s internal business operations.

   “Website” means a web page having the same letters and numbers to the left of the period adjacent to the top – level domain and after any period that precedes the period adjacent to the top-level domain. For example, “abcdefg.com" and "abcdefg.net" are separate Websites. Further, distinct sub-domains are treated as their own separate Websites. For example, "abcdefg.com" and "mail.abcdefg.com" are their own Websites.

   “You” or “Your” means the Customer named in an Order Form, MSA or SOW.

2. Software.
   1. TPGi agrees to make the Software available to You from the Effective Date for the Term of this Agreement. The Software shall be provided to You as set forth in an Order Form, MSA or SOW and subject to the terms of this Agreement.
   2. TPGi shall use best efforts to make the Software available 24 hours a day, 7 days a week, excluding Planned Maintenance and any unavailability caused by Force Majeure. TPGi shall use best efforts to provide support for the Software during Business Hours.
3. Right to Use the Software.
   1. Subject to your payment of any applicable Fees, You are granted a limited, non-exclusive, non-transferable and non-sublicensable right to allow End Users to Use the Software during the Term. All rights and title in and full ownership of the Software that are not expressly granted by this Agreement are expressly reserved by TPGi. You obtain no right, title or interest in the Software or any of the associated materials, or any right, title or interest to any intellectual property rights in the Software, other than as expressly set forth in this Agreement.
   2. You may not Use the Software for any purpose other than those expressly set forth in this Agreement. You may not, and may not allow any third party to: (i) decompile, disassemble, decrypt, or reverse engineer the Software, attempt to derive the source code for any part of the Software, or modify or create derivative works of the Software (except that Subscriber’s code written to Subscriber’s systems to permit access to or interface with the Software will not be deemed a derivative work); (ii) make copies of the Documentation other than as expressly permitted by this Agreement; (iii) sell, lease, lend, or sublicense the Software to any third party, or permit the Software to be Used for timesharing or Software bureau purposes; (iv) encumber any right in the Software in favor of a third party, whether by agreement, operation of law, or otherwise; (v) remove from the Documentation any product identification or proprietary rights notices; (vi) publish or disclose to any third party the results of any benchmark tests or other evaluation run on the Software without the prior written consent of TPGi; or (vii) otherwise Use the Software except as expressly provided herein.
4. Fees, Invoicing and Payments.
   1. TPGi shall charge you the Fees set forth in each Order Form, MSA or SOW. Such shall be payable as set forth in an Order Form, MSA or SOW.
   2. All Fees for Software are non-refundable and non-cancelable.
5. Termination.
   1. TPGi may terminate this Agreement or the provision of the Software immediately if You have used the Software, or permitted the use of the Software other than in accordance with this Agreement.
   2. Upon any termination Your right to use the Software and possess any Documentation will immediately cease and You shall (i) immediately cease using the Software, and (ii) either promptly return to TPGi or destroy (and provide prompt written certification of such destruction to TPGIi) all copies of any Documentation in Your possession.
6. Warranties
   1. TPGi warrants that during the applicable Term for which You have paid all applicable Fees for use of the Software, and while the Software provided by TPGi hereunder is hosted by TPGi, that the Software (excluding Updates for purposes of this Section 6) will conform in all material respects to TPGi's then-current Documentation for the Software. In the event of any claim by Subscriber under this limited warranty, Subscriber must notify TPGi in writing describing in reasonable detail the nature of the non-conformity and provide to TPGi sufficient detail to allow TPGi to reproduce the problem. The limited warranty contained in this section will not apply if, and to the extent that: (i) the Software is not used in accordance with this Agreement or the Documentation; (ii) the Software or any part thereof has been customized, modified, altered or changed (a) by any entity other than TPGi or, (b) to meet Your unique specifications; or (iii) a malfunction in the Software has been caused by any of Your equipment, any communications infrastructure used by You to connect to the Software, or any third-party software.
   2. Except for the express limited warranty contained herein and to the maximum extent allowable by law, TPGi provides the Software to You “as is” and with all faults, makes no other warranties related to the Software or the results to be obtained from the use of the Software, and provides the Software without any other warranties of any kind, either expressed or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose.
7. Indemnity.
   1. TPGi will indemnify, defend and hold You harmless notwithstanding any limit of liability based on or arising out of any claim or threatened claim that the Software or any part or use thereof infringes or violates any patent, copyright, trademark, trade secret, license or other property or proprietary right of any third party, provided that: (i) You notify TPGi in writing within thirty (30) days of the claim; (ii) TPGi receives reasonable assistance from You necessary to perform TPGi’s obligations hereunder; and (iii) TPGi has sole control over the defense and all negotiations for a settlement or compromise.
   2. The indemnity provided for above shall not apply with respect to the Software or portions or components thereof: (i) not provided by TPGi; (ii) Used in a manner not expressly authorized by this Agreement; (iii) modified in accordance with Your specifications; (iv) if the alleged infringement or misappropriation results from any customizations, modifications, alterations or changes to the Software not developed or provided by TPGi; or (v) combined with other products or Software not provided by TPGi where the alleged infringement would not exist but for such combination.
   3. In the event that the Software is held by a court of competent jurisdiction to constitute an infringement or the use of the Software is enjoined (or TPGi reasonably believes that any of the foregoing are reasonably likely to occur) TPGi may, at its option: (i) procure for Subscriber the right to continue to Use the Software; (ii) provide a modification to the Software so that its use becomes non-infringing; (iii) replace the Software with Software that are substantially similar in functionality and performance; or (iv) if none of the foregoing alternatives is reasonably available to TPGi, TPGi may terminate the subscription for the infringing Software and refund a pro-rated amount of the subscription fees actually paid by Subscriber for the Software. The prorated amount will be (i) the actual subscription fee paid multiplied by (ii) the percentage which is determined by dividing (a) the number of days remaining in the then-current term of this Agreement for which subscription fees have been paid to TPGi (from the effective date of termination through the end of the then-current term) by (b) the total number of days for the then-current term for which such subscription fees have been paid. This Section 7 states TPGi’s sole liability and Subscriber’s exclusive remedy for any claim by a third party that the Software, or any other good, Software, or software provided by TPGi pursuant to this Agreement infringes upon, violates, or misappropriates any right of a third party.
   4. To the extent permitted under applicable law, You agree to indemnify and hold TPGi and its affiliates and subsidiaries, and their respective officers, directors, employees, agents, representatives, successors, assigns, Software providers and suppliers harmless from any and all claims, losses, demands, fines, penalties, costs, and expenses, including reasonable attorney fees and court costs (“Claims”), made by any third party in connection with or arising out of (i) bodily injury (including death) or damage to real property or tangible personal property; (ii) Your use of the Software or any information transmitted during Your use of the Software, (iii) Your breach or violation of any provision of this Agreement, and (iv) Your violation of applicable laws or any rights of another person or entity, to the extent such Claims do not result from the willful misconduct or gross negligence of TPGi.
8. Limitation of Damages.
   1. To the fullest extent permitted by applicable law, regardless of whether or not any remedy set forth herein fails in its essential purpose, in no event will either party be liable to the other party for any consequential, incidental, indirect, special, punitive or other damages whatsoever (including, without limitation, damages for loss of business profits or information, business interruption, or any other pecuniary loss), arising out of or in any way related to their respective obligations under this Agreement and whether based on contract, tort, negligence, strict liability or otherwise, even if such party has been advised of the possibility of such damages.
   2. Except for its indemnification and confidentiality obligations under this Agreement, the entire liability of TPGi for any damages under any provision of this Agreement shall be limited to the actual fees paid to TPGi by You under this Agreement for the twelve (12) month period preceding the filing of the claim giving rise to such damages. As a limitation of damages may not be permitted by some states or jurisdictions, the foregoing provision may not apply to Subscriber.
9. Confidentiality.
   1. Each party agrees to use Confidential Information solely in connection with this Agreement and not to use the Confidential Information for any other purpose whatsoever.
   2. Each of the parties agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and Confidential Information, but in any event no less than a reasonable degree of care.
   3. Each party may disclose Confidential Information of the other party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
   4. If a party is requested to disclose Confidential Information of the other party or the substance of this Agreement in connection with a legal or administrative proceeding or otherwise to comply with a requirement under the law, it will provide prompt notice of such request, unless prohibited by law, so that the other party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Agreement. The party’s will cooperate with and assist reasonably in such efforts.
   5. The Confidential Information of the parties will remain the exclusive property of the provider of the information and the receiving party will have no rights, by license or otherwise, to use the Confidential Information except for the purposes permitted hereunder and strictly in accordance with the terms of this Agreement. Except for any Confidential Information provided to TPGI in connection with the provision of the Software and which is required by law or regulation to be retained by TPGI for backup and/or record keeping purposes only, and for which TPGI may retain a copy of such Confidential Information in compliance with such law or regulation, upon written request the parties will return or destroy (in a manner that it cannot be read or reconstructed) all Confidential Information it has received, together with all copies thereof.
   6. The parties shall promptly notify the other by telephone and in writing at the address set forth at the beginning of this Agreement (or as otherwise notified in writing by a party to the other party) if the Confidential Information has been stolen, destroyed, altered, lost, or accessed by unauthorized persons.
10. Assignment.
    1. You may not transfer, assign, or delegate any right or obligation under this Agreement without the prior written consent of TPGi, which consent TPGI will not unreasonably withhold, delay, or condition. Any transfer, assignment, or delegation in violation of this Agreement will be voidable at TPGi’s option.
11. Notices.
    1. TPGi may give notice by means of a notice on the Software, electronic mail to Your email address on record in TPGi’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email) or posting a notice on the Software.
    2. You may give notice to TPGi (such notice shall be deemed given when received by TPGI) at any time by any of the following: letter delivered by nationally recognized delivery service or first class postage prepaid mail to TPGi at the following address: 17757 US Highway 19N, Suite 200, Clearwater, FL, 33764 addressed to the attention of: “Legal”.
12. Miscellaneous.
    1. This Agreement shall be governed interpreted, construed and enforced in accordance with the laws of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties agree that the sole and exclusive venue and jurisdiction for filing and maintaining any lawsuit or other action or proceeding related to this Agreement shall be in the state or federal courts sitting in Pinellas County, Florida. Each party, by entering into this Agreement, consents and submits itself to the personal jurisdiction of such court.
    2. If You are a government or public agency, instrumentality or institution, including without limitation a public educational, research or medical institution or body, and any terms in this Agreement (including by way of example, all or part of the termination, limitation of liability, exclusive remedies, limited warranty, and indemnification sections) are invalid or unenforceable against You because of applicable law, then those terms will be deemed excluded and unenforceable (as the case may be), and instead construed in a manner most consistent with applicable governing law. In addition, if the applicable governing law for this Agreement is precluded for You under applicable law, then this Agreement will be governed and construed under the laws of the country, state, province or other jurisdiction in which Your primary office is located.