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SaaS Platform Subscription Services Agreement

These ReadyUp SaaS Platform Terms (this “Agreement” or these “Terms”) are made available by ReadyUp, Inc. By downloading or using ReadyUp’s Services (as defined below), you and any company, entity, or organization on behalf of which you are accepting this Agreement (“Customer”) hereby agree to be bound by all terms and conditions of this Agreement, and you represent and warrant that you are an authorized representative of Customer with the authority to bind Customer to these Terms.

1. SERVICES.
Services Description. Subject to the terms and conditions of this Agreement, ReadyUp grants to Customer a non-exclusive right during the Term (as defined in Section 4) to access and use its platform services (the “Services”) for purposes of enhancing the user experience and to grow, engage, and monetize fan communities.

1.1 License to ReadyUp Technology. During the Term, subject to the terms of this Agreement (including Section 2) and solely to the extent necessary to allow Customer to access and use the Services, ReadyUp hereby grants to Customer, for the Term, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free, limited license to use, reproduce and distribute internally within Customer’s business, and only for Customer’s own business use, any software, computer code (including source code, copies of which ReadyUp agrees to provide to Customer on a periodic basis upon reasonable request), tools, technology, features, functions, designs or related documentation embodied in the Services or provided by ReadyUp for use in connection with the Services (collectively, the “ReadyUp Technology”).

1.2 Updates and Bug Fixes; Code Base. As part of the Services, ReadyUp further agrees as follows: (a) it will make available to Customer all generally available enhancements, incremental features, updates and bug fixes that it designs or develops with respect to the ReadyUp Technology; and (b) the Services will be hosted using the ReadyUp Technology’s primary or core software code base as generally made available.

2. CUSTOMER OBLIGATIONS AND RESTRICTIONS. As a condition to ReadyUp providing Customer with the Services, Customer acknowledges and agrees as follows:

2.1 Access. Customer will access and use (and permit its employees and contractors the right to access and use) the Services only in compliance with ReadyUp’s standard account registration and access policies and procedures then in effect.

2.2 Customer Equipment. Customer shall be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, operating systems, networking equipment, and/or telecommunications services (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the ReadyUp Technology) and complies with all configurations and specifications as communicated by ReadyUp to Customer in writing.

2.3 Support. ReadyUp’s will provide customary and reasonable technical support to Customer, provided that its obligations to provide such support services are subject to the following: (a) Customer shall reasonably document and promptly report all significant or recurring errors or malfunctions; and (b) Customer shall carry out any reasonable procedures provided by ReadyUp to Customer for the rectification of errors or malfunctions within a reasonable time after such procedures have been provided by ReadyUp.

2.4 Restrictions. Customer shall not (and shall not permit any third party to): (a) make the Services available to, or use the Services for, the benefit of anyone other than Customer or Customer’s users; (b) modify or make derivative works based on the Services or the ReadyUp Technology; (c) disassemble, reverse engineer, or decompile any of the Services or any ReadyUp Technology; (d) use the Services or the ReadyUp Technology to (i) build or improve a competitive product or service, or (ii) to sell, resell, license, sublicense, distribute or “white label” the Services or ReadyUp Technology or otherwise commercially exploit the Services or any ReadyUp Technology; (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein; (f) transmit through the Services any infringing, obscene, threatening, harmful, libelous, unlawful or otherwise objectionable material, including material that violates any intellectual property or privacy rights; or (g) attempt to gain unauthorized access to the Services or its related systems or networks.

3. FEES.

3.1 Fees. No fees or payments shall be due or payable by Customer during the Initial Term. Any fees or payments due during any Renewal Term shall be subject to mutual written agreement of the parties.

4. GENERAL PROVISIONS.

4.1 Term. This Agreement shall commence upon the Effective Date and shall continue for four (4) months from such date (“Trial Term”). Thereafter, if the parties do not terminate the Agreement pursuant to Section 4.2.3 below, the Agreement will continue for an additional term of twenty (20) months (“Initial Term”). Thereafter, the Initial Term will automatically renew for additional successive twelve (12) month periods (each a “Renewal Term”), unless either party provides the other party with written notice of nonrenewal at least thirty (30) days prior to the end of the then current term (the Trial Term, Initial Term and any and all Renewal Term(s) collectively are the “Subscription Term”).

4.2 Termination. Each party shall have the following termination rights:

4.2.1 Insolvency or Liquidation of Assets. Either party may terminate the Agreement upon written notice if the other party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is the subject of any liquidation or insolvency proceeding which is not dismissed within ninety (90) days, or makes any assignment for the benefit of creditors.

4.2.2 Breach. Either party may terminate the Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. In addition, ReadyUp shall have the right, at its sole discretion, to suspend the Services upon ten (10) business days’ prior written notice to Customer if Customer fails to pay any undisputed Fees (if applicable) that are past due.

4.2.3 Pricing. Either party may terminate the Agreement upon expiration of the Trial Term with written notice to the other party in the event the parties were unable to agree to subscription, implementation, and revenue share.

4.3 Effect of Termination. Upon the expiration or termination of this Agreement: (a) Customer shall pay to ReadyUp all undisputed Fees (if applicable) due within thirty (30) days of termination; and (b) the Services and all permissions and licenses granted under this Agreement shall cease. The following provisions will survive any expiration or termination of this Agreement: Sections 4 and 5.

4.4 Confidentiality. Neither party shall use for any reason other than to perform its obligations or to exercise its rights under this Agreement, or disclose to a third party, any information marked or identified at the time of disclosure by the other party to this Agreement as such party’s confidential information or that would otherwise reasonably be considered confidential or proprietary based on the type of information or the manner in which such information is disclosed. Confidential information also includes the terms and conditions, but not the existence, of this Agreement. Confidential information does not include information that: (a) was known to the recipient before, or that was independently developed by the recipient without reference to, the confidential information of the discloser; (b) becomes publicly known through no wrongful act of the recipient; or (c) was provided to the recipient without restriction by a third party without an obligation of confidentiality to the discloser. The receiving party agrees to take commercially reasonable precautions to protect and safeguard the confidentiality of confidential information of the disclosing party and to restrict access to such confidential information to only those employees or agents that have a need to know such information for purposes of this Agreement and are bound by confidentiality obligations consistent with those hereunder. If Customer or any user chooses to provide ReadyUp any feedback or recommendations regarding the Services, ReadyUp is free to use and exploit in any way such feedback and recommendations without restriction or liability to Customer or any third party, including payment of any royalty or other fees.

4.5 Intellectual Property Ownership. Subject to the rights granted to Customer to use the Services and the ReadyUp Technology as set forth in this Agreement, ReadyUp retains all rights, title and ownership interest, including all intellectual property and proprietary rights, in and to the Services and the ReadyUp Technology, and all updates and upgrades thereto and derivative works thereof. All rights not expressly granted or licensed by ReadyUp under this Agreement are hereby reserved by ReadyUp.

4.6 ReadyUp Indemnification.

4.6.1 ReadyUp will defend, indemnify and hold Customer harmless from and against any and all third party claims, obligations, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claim”) brought against Customer alleging that the use of Services in accordance with this Agreement infringes any copyright, trademark or U.S. patent; provided that: (a) ReadyUp is given prompt written notice of any such Claim and sole control of the defense or settlement negotiations of the Claim; and (b) Customer reasonably cooperates with ReadyUp, at ReadyUp’s expense, in such defense. Notwithstanding the foregoing, ReadyUp shall have no obligation under this Section or otherwise to the extent a Claim is based upon any of the following (“Excluded Claims”): (a) any use of the Services not in accordance with this Agreement; (b) any use of the Services in combination with other products, equipment, software or data not contemplated by this Agreement or ReadyUp’s documentation if such infringement would not have occurred absent such combination or use; or (c) any modification to the Services made by Customer without ReadyUp’s written consent or by ReadyUp based on Customer’s specifications or requirements.

4.6.2 If any portion of the Services become, or in ReadyUp’s reasonable opinion is likely to become, the subject of a Claim, ReadyUp may, at its option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing services which do not materially impair the functionality of the Services; (c) modify the Services so the Services are non-infringing; or (d) terminate this Agreement and refund any prepaid Fees applicable to the period after termination, and upon such termination, Customer will immediately cease all use of the Services.

4.6.3 This Section states ReadyUp’s entire liability and Customer’s sole and exclusive remedy with respect to alleged infringement of any intellectual property rights by the Services.

4.7 Customer Indemnification. Customer will defend, indemnify and hold ReadyUp and its affiliates, and each of their respective officers, directors, employees, licensors, distributors and agents harmless from and against any Claim that arises from an alleged violation of Section 2, or otherwise from the Excluded Claims; provided that: (a) Customer is given prompt written notice of any such Claim and sole control of the defense or settlement negotiations of the Claim; and (b) ReadyUp reasonably cooperates with Customer, at Customer’s expense, in such defense.

4.8 Warranty; Disclaimer. ReadyUp agrees to provide the Services in a professional manner consistent with customary and applicable industry standards. READYUP DOES NOT OTHERWISE WARRANT THAT THE SERVICES WILL FUNCTION 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 SET FORTH ABOVE, READYUP MAKES NO OTHER WARRANTIES WITH REGARD TO THE SERVICES AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

4.9 Limitation of Liability. Except with respect to either party’s liability for breach of its confidentiality obligations, neither party shall be liable to the other party for any lost profits, loss of data, loss of use, costs of procurement of substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damages. Except with respect to either party’s liability for breach of its confidentiality obligations or Customer’s liability for breach of Section 2 (or indemnification obligations relating thereto) or its payment obligations or ReadyUp’s liability resulting from its indemnification obligations, neither party’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, shall exceed the amounts paid to ReadyUp during one (1) year immediately preceding the date the cause of action arose.

4.10 Force Majeure. Neither party will be liable for any delay or failure to perform any obligation under this Agreement, except for the obligation to pay any accrued Fees, where the delay or failure results from any cause beyond the reasonable control of such party, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyber attacks or war, hosting or similar services outages or denial of service (such as Amazon Web Services outages or denial of service), cyber attacks, worms, bots, or similar malware.

5. MISCELLANEOUS PROVISIONS. This Agreement shall be governed in all respects by the laws of the State of California without regard to its conflicts of laws principles. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, it shall be modified to accomplish the original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Neither party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that either party may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of its assets, provided such surviving entity is not a competitor of the other party’s. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Customer and ReadyUp. This Agreement constitutes the complete and exclusive agreement between ReadyUp and Customer with respect to the subject matter hereof, and supersedes all prior understandings and agreements. Any different or additional terms and conditions set forth in any purchase order or other written or electronic documents shall have no force or effect on this Agreement. Except as otherwise provided in this Agreement, no modification of this Agreement will be effective unless in writing and signed by authorized representatives of both parties.