Master Subscription Agreement

This Master Subscription Agreement (this “Agreement”) is between ClearDoc, Inc. (doing business as OpenReel), a Delaware corporation (“OpenReel”) and Customer (as defined below).

By accepting this Agreement, either by clicking a box indicating your acceptance, agreeing to a SOW or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”); and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.

The parties agree as follows:

1.             Definitions.

A.            “Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or either party’s performance under this Agreement.

B.            “Collaborator” means an employee or independent contractor of Customer for whom Customer has paid all applicable Fees for access to and use of the Services, and who can join but not control a Session. The number of Collaborators permitted is tied to the number of User Seats purchased and may be updated from time to time via the Documentation.

C.            “Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. OpenReel’s Confidential Information includes non-public information regarding features, functionality, and performance of the Services; Documentation; and Usage Data. Customer’s Confidential Information includes the Customer Data.

D.            “Customer Data” means all non-public data uploaded by Customer, Users, or Collaborators to the Services, or created by Customer, Users, or Collaborators using the Services, including all Final Videos. “Customer Data” does not include Usage Data.

E.            “Documentation” means OpenReel-provided user documentation relating to the Services (e.g., user manuals and online help files) as the same may be updated by OpenReel from time to time.

F.            “Final Videos” means the final video footage produced by Customer using the Services.

G.            “Implementation Services” means any implementation, configuration, training, or consulting services specified in a SOW or otherwise made available by OpenReel to Customer.

H.            “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.

I.              “Scope Limitations” means any limitations on Customer’s use of the Services specified in this Agreement or in a SOW, including, but not limited to number of User Seats, Collaborators, Recording Hours, and the amount of Storage.

J.             “Services” means OpenReel’s software-as-a-service platform and any related applications; in each case, as identified in the applicable SOW. The “Services” includes all names, marks, logos, software, images, and other content OpenReel makes available through its software-as-a-service platform and related applications (including the collection, design, production, selection, and arrangement thereof); and all intellectual property rights arising out of or related to the foregoing.

K.            “Session” means the opening of a connection between Customer and a User for the purpose of recording and producing a video through the Services.

L.             “SOW” means a statement of work or other online ordering document that Customer and OpenReel agree to, including any addenda and supplements, specifying the Services to be provided under this Agreement and the applicable Fees.

M.           “SOW Term” means the SOW term length specified in the applicable SOW.

N.            “Usage Data” means data relating to use of the Services that is aggregated and/or anonymized in such a way that it is not associated with Customer.

O.            “User” means an employee (or other user who is identified on the applicable SOW) of Customer for whom Customer has paid all applicable Fees for access to and use of the Services.

P.            “User Seats” means the number of Users that may use the Services under Customer’s account, as specified in the applicable SOW.

2.             Services.

A.            SOWs. Each SOW is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and a SOW, this Agreement will control unless the SOW states that a specific provision of this Agreement will be superseded by a specific provision of the SOW.

B.            Access to the Services. Subject to Customer’s payment of all Fees and compliance with this Agreement, OpenReel grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable right during the SOW Term to use the Services by its Users and Collaborators, solely in connection with Customer’s internal business operations and in accordance with any Scope Limitations and the Documentation. OpenReel may modify or update the Services from time to time to keep the Services current and relevant for its customer base generally.

C.            Documentation. Subject to Customer’s payment of all Fees and compliance with this Agreement, OpenReel grants to Customer a worldwide, non-exclusive, non-transferable non-sublicenseable license during the SOW Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services.

D.            Implementation Services. Subject to Customer’s payment of all Fees and compliance with this Agreement, OpenReel will provide the Implementation Services to Customer as outlined in the SOW. Customer will provide OpenReel any assistance and cooperation reasonably requested by OpenReel relating to the Implementation Services.

E.            Support. Subject to Customer’s payment of all Fees and compliance with this Agreement, OpenReel will provide support in accordance with the Service Levels set forth in Exhibit A.

F.            Subcontractors. OpenReel may use subcontractors or other third parties to perform its obligations under this Agreement, but OpenReel will remain responsible for all such obligations.

3.             Restrictions and Responsibilities.

A.            Use Restrictions. Except as expressly permitted in this Agreement or the applicable SOW, Customer will not, and will not permit or authorize third parties to: (1)  license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties (including any third party that provides marketing, advertising, public relations, or video or other digital media services) to use the Services or Documentation; (2) use the Services or Documentation to provide services to third parties (e.g., as a service bureau or agency), including rebranding the Services; (3) use Services or Documentation in any way that would violate the Scope Limitations, Documentation, or this Agreement; (4) circumvent or disable any security or other technological features of the Services; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services (except to the extent this restriction is prohibited by Applicable Law); (6) modify, translate, or create derivative works based on the Services or Documentation; (7) remove any proprietary notices or labels from the Services or Documentation; (8) use the Services in a manner that violates or attempts to circumvent Applicable Law; (9) use the Services to transmit any content that is offensive, harassing, libelous, abusive, threatening, harmful, or otherwise objectionable; (10) use the Services to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Services; (11) use the Services as a video conferencing tool or for any purpose not contemplated by the Documentation; or (12) access the Services in order to develop a competing product or service.

B.            User Accounts. Customer is responsible and liable for all actions and inactions by its Collaborators and Users or by any third party that Customer, a Collaborator, or a User permits to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its Collaborators’ and Users’ accounts. Customer will not, and will not permit Users or Collaborators to, share User or Collaborator account credentials, or use them in multiple locations at the same time. OpenReel may restrict use of User and Collaborator accounts by IP address.

C.            Customer Systems and Back-Ups. Customer shall obtain and operate all systems and equipment needed to connect to, access or otherwise use the Services, and provide all corresponding back-up, recovery, and maintenance services. Customer shall ensure that all systems and equipment are compatible with the Services. Customer is solely responsible for maintaining the integrity and security of its systems and equipment (physical, electronic, and otherwise). OpenReel is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data in or through the Services. OpenReel recommends that Customer perform regular exports and back-ups of Customer Data.

D.            Clearances. The Services are solely a tool for creating Final Videos. Customer is solely responsible for complying with all Applicable Laws and obtaining all necessary consents, licenses, and waivers required to create, record, submit, publish, and use Final Videos for Customer’s intended purposes. These may include consents, licenses, and waivers from: (1) copyright owners, artists, actors, directors, performers, writers, producers, or any other individuals appearing in Final Videos; (2) public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI, or SESAC); (3) the owners of musical compositions and sound recordings embodied in the Final Videos, as applicable; and (4) parents or guardians. Customer is responsible for paying all applicable royalties, fees, and other amounts owing to any third party in connection with the use of any Final Videos, including payments to any labor unions, guilds, and public performance rights collection organizations.

4.             Ownership.

A.            OpenReel IP. OpenReel and its licensors own the Services, Documentation, and Usage Data, including all Intellectual Property Rights therein (the “OpenReel IP”). The OpenReel IP is protected by copyright law and other Applicable Law. No ownership rights in the OpenReel IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the OpenReel IP except for the limited express rights granted in this Agreement.

B.            Trademarks. OpenReel has acquired, and is the owner of, common law or registered trademark rights in the name and word mark “OpenReel” and in the other marks and design marks displayed on the Services and Documentation. Customer may not use OpenReel’s name or marks in connection with any product or service that is not OpenReel’s, or in any manner that is likely to cause confusion. All use of the foregoing name and marks by Customer will inure exclusively to the benefit of OpenReel. All marks shown on the Services but not owned by OpenReel are the property of their respective owners.

C.            Customer Data. Customer and its licensors own the Customer Data, including all Intellectual Property Rights. No ownership rights in the Customer Data are transferred to OpenReel by this Agreement. OpenReel does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.

D.            Feedback. If Customer gives OpenReel feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), Customer hereby assigns to OpenReel all right, title, and interest in and to the Feedback, and OpenReel is free to use the Feedback without payment, attribution, or restriction.

5.             Data.

A.            License. Customer hereby grants OpenReel a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicenseable license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data, in any media or distribution methods now known or later developed, solely as necessary for OpenReel to provide the Services to Customer during the applicable SOW Term, and in accordance with the settings on Customer’s account and the features of the Services Customer elects to utilize.

B.            Usage Data. OpenReel may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including information provided by third-party analytical tools). OpenReel may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including for the purposes of: (1) complying with a regulatory inquiry or judicial action of a governmental body; and (2) improving the Services and developing new products, services, features, and functionality.

6.             Confidentiality. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 6, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.

7.             Fees and Payment.

A.            Fees and Payment.

(1)           Customer will pay OpenReel all fees described in all SOWs (the “Fees”) in accordance with the terms therein. If Customer believes that OpenReel has billed Customer incorrectly, Customer must contact OpenReel no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. All Fees are non-refundable, except as otherwise specified in this Agreement. Fees are based on services purchased and not actual usage, but Customer’s use of the Services may be subject to usage limits in accordance with the Services package Customer selects. If Customer exceed its usage limits, extra charges may apply.

(2)           Unless otherwise set out in the SOW, Fees are payable annually in advance. OpenReel may bill Customer through an invoice, in which case, unless otherwise specified in a SOW, full payment for invoices issued in a given month is due 30 days after the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Services. Customer will pay all Fees in U.S. Dollars. If Customer elects to make payment via credit card, additional fees may apply. OpenReel may suspend access to the Services if Customer fails to make any payment due within 10 business days after OpenReel provides notice of the failure. Suspension of the Services by OpenReel under this section does not relieve Customer of its payment obligations under this Agreement. OpenReel will not be liable to Customer nor to any third party for any suspension of the Services pursuant to this section.

B.            Taxes. Other than federal and state net income taxes imposed on OpenReel, Customer will bear all taxes, duties, and other governmental charges relating to the Services.

8.             Term and Termination.

A.            Term. The term of this Agreement will commence on the effective date of the first SOW and will continue until terminated in accordance with this Agreement (the “Term”). If a SOW Term is not specified in a SOW, the SOW Term will be 12 months. Upon expiration of a SOW, the SOW Term will automatically renew for a term equivalent to the initial SOW Term, unless otherwise specified in the SOW or if either party notifies the other in writing of its desire to terminate the applicable SOW at least 30 days before the expiration of the then-current SOW Term.

B.            Termination for Breach or Insolvency. Either party may terminate this Agreement or any SOW effective upon written notice to the other party, if the other party materially breaches this Agreement (or a SOW) and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. OpenReel may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches Sections 3 (Restrictions and Responsibilities) or 6 (Confidentiality). Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

C.            Termination for Change of Control. OpenReel may terminate this Agreement if OpenReel ceases to provide the Services or if OpenReel consummates a Change of Control Transaction. “Change of Control Transaction” means any: (1) merger, sale of outstanding shares of stock of OpenReel, or similar transaction or series of related transactions in which a third party acquires majority voting power of OpenReel’s shares of stock; or (2) sale or transfer of all or substantially all of OpenReel’s assets.

D.            Effect of Termination. Termination of this Agreement will automatically terminate all active SOWs, but termination of a single SOW will not result in termination of this Agreement or any other SOWs. Upon the termination of this Agreement or a SOW, all rights and licenses granted by OpenReel to Customer under this Agreement or the applicable SOW will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.

E.            Post-Termination Obligations. Upon any termination of this Agreement or any SOW, OpenReel will make all Customer Data then held on Customer’s behalf by OpenReel pursuant to this Agreement or the applicable SOW available to Customer for electronic retrieval for a period of 14 days. After such period, OpenReel may, but is not obligated to, delete any such Customer Data. If Customer terminates this Agreement for OpenReel’s material breach, or if OpenReel terminates this Agreement under Section 10.C (IP Infringement), Customer will pay a pro rata amount of the Fees for any terminated Services or Implementation Services up to and including the last day on which the Services or Implementation Services are provided, and OpenReel will refund any Fees paid for Services or Implementation Services not provided. If this Agreement is terminated for any other reason, OpenReel will not refund Customer any Fees paid, and within 10 days after such termination, Customer will pay OpenReel all remaining Fees owed under any terminated SOWs. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.A (SOWs), 2.F (Subcontractors), 3 (Restrictions and Responsibilities), 4 (Ownership), 5.B (Usage Data), 6 (Confidentiality), 7 (Fees and Payment), 8.C (Effect of Termination), 8.E (Post-Termination Obligations), 10 (Indemnification), 11 (Limitations of Liability), 12 (Arbitration), 14 (Compliance with Applicable Law; Export), and 15 (Miscellaneous).

9.             Warranties and Disclaimer.

A.            Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms of any other agreement to which it is a party or by which it is otherwise bound.

B.            OpenReel Warranties. OpenReel represents and warrants to Customer that: (1) OpenReel will perform the Services and Implementation Services in a good and workmanlike manner in accordance with industry standards; and (2) OpenReel has the necessary rights to authorize Customer to use the Services in accordance with this Agreement, and such use by Customer of the Services does not and will not infringe any third-party right, including any Intellectual Property Right.

C.            Customer Warranties. Customer represents and warrants to OpenReel that: (1) Customer has the necessary rights to authorize OpenReel to use the Customer Data in accordance with this Agreement, and such use by OpenReel of Customer Data does not and will not infringe any third-party right, including any Intellectual Property Right, privacy right, or right of publicity; (2) Customer will use the Services in compliance with the Documentation and Applicable Law; (3) Customer’s Final Videos will comply with Applicable Law and Customer will only use and distribute its Final Videos in accordance with Applicable Law; and (4) Customer has and will maintain all necessary rights, consents, licenses, and waivers required to create, record, submit, publish, and use the Final Videos for Customer’s intended purposes, including without limitation consents, licenses and waivers from: (i) copyright owners, artists, actors, directors, performers, writers, producers or any other individuals appearing in Final Videos; (ii) public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI or SESAC); and (iii) the owners of musical compositions and sound recordings embodied in Final Videos.

To the extent Customer uses the Services to collect Customer Data from a child under the age of 13, Customer represents and warrants that Customer is solely responsible for complying with the Children’s Online Privacy and Protection Act (“COPPA”), and that Customer will obtain advance written consent from all parents or guardians whose children under 13 will be accessing or using the Services. When obtaining consent, Customer will provide parents and guardians with OpenReel’s Privacy Policy and Customer will keep all consents on file and provide them to OpenReel upon request.

D.            Disclaimer. Except for the limited warranties described in this Section 9 (Warranties and Disclaimer), OpenReel makes no other express or implied warranties with respect to the Services, Implementation Services, Documentation, Usage Data, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. Except for the limited warranties described in this Section 9 (Warranties and Disclaimer), the Services, Implementation Services, and Documentation are provided “as is.” OpenReel does not warrant that the Services or Documentation will satisfy Customer’s requirements, are without defect or error, or that the operation of the Services will be uninterrupted. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Customer.

10.          Indemnification.

A.            By OpenReel.

(1)           Defense. At Customer’s option and request, OpenReel will defend Customer from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on an allegation that Customer’s use of the Services in accordance with this Agreement infringe any third-party Intellectual Property Rights (an “OpenReel Indemnifiable Claim”). If Customer requests OpenReel to defend it from any OpenReel Indemnifiable Claim, Customer will: (1) give OpenReel prompt written notice of the OpenReel Indemnifiable Claim; (2) grant OpenReel full and complete control over the defense and settlement of the OpenReel Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the OpenReel Indemnifiable Claim as OpenReel may reasonably request; and (4) comply with any settlement or court order made in connection with the OpenReel Indemnifiable Claim. Notwithstanding the previous sentence, OpenReel will not enter into any settlement that involves an admission of guilt or liability of Customer without Customer’s prior written consent. Customer may participate in the defense of an OpenReel Indemnifiable Claim at its own expense and with counsel of its own choosing.

(2)           Indemnification. OpenReel will indemnify Customer from and pay: (1) all damages, costs, fines, judgments, expenses, and attorneys’ fees reasonably incurred by Customer in any OpenReel Indemnifiable Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by Customer in connection with the defense of an OpenReel Indemnifiable Claim (other than attorneys’ fees and costs incurred without OpenReel’s consent after OpenReel has accepted defense of the OpenReel Indemnifiable Claim); and (3) all amounts that OpenReel agrees to pay to any third party to settle any OpenReel Indemnifiable Claim.

B.            By Customer.

(1)           Defense. At OpenReel’s option and request, Customer will defend OpenReel and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “OpenReel Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on: (a) Company’s breach of Section 9 (Warranties and Disclaimer) or (b) the development, production, and exploitation of Final Videos (each, a “Customer IndemnifiableClaim”). If OpenReel requests Customer to defend it from any Customer Indemnifiable Claim, OpenReel will: (1) give Customer prompt written notice of the Customer Indemnifiable Claim; (2) grant Customer full and complete control over the defense and settlement of the Customer Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the Customer Indemnifiable Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Customer Indemnifiable Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of OpenReel without OpenReel’s prior written consent. OpenReel may participate in the defense of a Customer Indemnifiable Claim at its own expense and with counsel of its own choosing.

(2)           Indemnification. Customer will indemnify the OpenReel Indemnified Parties from and pay: (1) all damages, costs, fines, judgments, expenses, and attorneys’ fees reasonably incurred by the OpenReel Indemnified Parties in any Customer Indemnifiable Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by the OpenReel Indemnified Parties in connection with the defense of a Customer Indemnifiable Claim (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Customer Indemnifiable Claim); and (3) all amounts that Customer agrees to pay to any third party to settle any Customer Indemnifiable Claim.

C.            IP Infringement. If the Services are held to infringe (or if OpenReel reasonably believes will be held to infringe) any third-party Intellectual Property Rights, OpenReel may, at its option and expense: (1) modify the Services to make them non-infringing; or (2) obtain a license that permits Customer to continue using the Services. If OpenReel does not believe either option is reasonably practicable, OpenReel may terminate this Agreement. OpenReel will have no obligation for any infringement of Intellectual Property Rights relating to the Services to the extent that arising out of: (1) use of the Services in combination with other products or services; (2) designs, requirements, or specifications required by or provided by Customer; (3) use of the Services in breach of this Agreement or outside the scope of the license granted to Customer; (4) Customer’s failure to use the Services in accordance with the Documentation; (5) any modification of the Services not made or authorized in writing by OpenReel; or (6) use of Third-Party Services. Section 10.A states OpenReel’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third party Intellectual Property Rights arising from Customer’s use of the Services.

11.          Limitations of Liability.

A.         Exclusion of Damages. Neither OpenReel nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Customer for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if OpenReel is apprised of the likelihood of such damages occurring.

B.         Damages Cap. OpenReel’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the Fees paid by Customer to OpenReel during the six months immediately preceding the claim (determined as of the date of any final judgment in an action). Nothing in these Terms shall limit or exclude liability for gross negligence, willful misconduct, death or personal injury, or fraud or fraudulent misrepresentation.

C.         Basis of the Bargain. This Section 11 (Limitations of Liability) is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by OpenReel to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 11 (Limitations of Liability) will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.

D.         Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 11 (Limitations of Liability) will apply to Customer solely to the extent permitted by Applicable Law.

12.          Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the Arbitration Rules of the International Chamber of Commerce in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in New York, New York. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.

13.          Publicity. OpenReel may publicly list Customer as a customer of OpenReel and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential OpenReel customers, resellers, or investors.

14.          Compliance with Applicable Law; Export. Each party will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws. As defined in FAR section 2.101, the Services 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 this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.

15.          Miscellaneous.

A.            Governing Law. This Agreement is governed by New York law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 12 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

B.            Non-Solicitation. During the Term and for three years thereafter, Customer will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of OpenReel to terminate their engagement with OpenReel. This Section 15.B will apply solely to the extent permitted by Applicable Law.

C.            Injunctive Relief. If either party breaches Sections 3.A (Use Restrictions), 4 (Ownership), or 6 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.

D.            Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.

E.            Assignment. Neither party may assign this Agreement or delegate its performance without the other party’s prior written consent, and any attempt to do so is void; except either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.

F.            Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.

G.            No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

H.            Entire Agreement. This Agreement (including any Exhibits and SOWs) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any purchase order or other document provided by Customer will be void and have no binding effect on OpenReel, except as described in Section 2.A (SOWs). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.

I.              Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.

J.             Nature of Rights. The licenses granted under this Agreement are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.

K.            Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.

L.             No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.

M.           Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to OpenReel will be sent to:

ClearDoc, Inc. dba OpenReel
425 N. Broadway
#201, Jericho, NY 11753
Email: legal@openreel.com
Attn: Legal Department

N.            Force Majeure. OpenReel will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond OpenReel’s reasonable control (a “Force Majeure Event”), so long as OpenReel uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes OpenReel to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.

O.            Interpretation. If OpenReel provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”

P.            Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.

Exhibit A

SERVICE LEVEL EXHIBIT

This Service Level Exhibit (this “Exhibit”) describes the operational standards, support, and response standards provided by OpenReel. OpenReel may modify this Exhibit upon 30 days’ prior written notice. All capitalized terms used but not defined in this Exhibit have the meanings given in the Master Subscription Agreement.

1.       Definitions.

A.            “Available” or “Availability” means the ability to access and use the Services. The Services are considered unavailable when no Users or Collaborators can log in to the Services.

B.            “Excused Downtime” means when the Services are not Available due to: (1) Scheduled Maintenance; (2) Customer’s use of the Services in violation of the Agreement; (3) failures of Customer’s internet connectivity or Customer’s equipment, services, systems, or other technology (excluding the Services); (4) failures of OpenReel’s third-party service providers (e.g., AWS); (5) failures due to any Customer personnel actions or inactions; or (6) a Force Majeure Event.

C.            “Scheduled Maintenance” means any scheduled outages or downtime for maintenance, upgrades, enhancements, or changes to the Services.

D.            “Service Interruption” means that the Services are not Available.

2.       Service Levels.

A.            Availability. During each SOW Term, OpenReel will make the Services Available at least 99% of time as measured on a monthly basis, excluding Excused Downtime (the “Availability Requirement”).

B.            Calculation of Availability. Availability in a particular month will be calculated as follows:

a = [(b – c) – d] x 100 / (b – c)

where:

“a” means the percentage of Availability in the month;

“b” means the total number of hours in the month;

“c” means the total number of Excused Downtime hours in the month; and

“d” means = the total number of hours the Services are unavailable for reasons other than Excused Downtime in the month.

C.            Scheduled Maintenance. OpenReel will use commercially reasonable efforts to schedule Scheduled Maintenance during the following times:

(1)           Weekly Maintenance: Monday – Friday from 21:00 ET (night before) – 07:00 ET

(2)           Weekend Maintenance: Friday 21:00 ET – Monday 07:00 ET

D.            Unscheduled Maintenance. If the Services become unavailable and requires unscheduled maintenance, OpenReel will use commercially reasonable efforts to post a notice of the unscheduled maintenance on the Services.

3.       Response Standards

A.            Support Response. OpenReel will make telephone and email support representatives available to receive Customer support requests between the hours of 9:00 – 18:00 ET, Monday through Friday, excluding public holidays. OpenReel will respond to Customer’s support requests with an initial determination of the problem as provided below: