TERMS OF SERVICE

These Terms of Service (the “Terms”) constitute an agreement governing the use of the Service (defined below) provided by meritboost, to you as a Customer or a User. In these Terms, references to “Company,” “we,” “us,” and “our” refer to meritboost; “you,” “your,” and “yours” refer to the organization identified as the Customer and references to the “Service” refer to the online software as a service (“Software”) subscribed to by you and made available by us and supporting services made available by us. For the resolution of doubt, “Service” includes implementation and configuration services, Help Center and Library information and resources, Customer Care and support services, and meritboost Advisory Services, as applicable. We and you are each sometimes referred to herein as a “party.”

1. ACCESS AND PROVISION OF THE SERVICE

1.1. Access and Use - Access to the Software is purchased on a subscription basis by a written order form describing the Software or any related services (including, but not limited to, meritboost Advisory Services) to be provided by meritboost (in each case, an “Order Form”). Subject to these Terms and the terms of any Order Form signed by both parties, we hereby grant you a non-exclusive, non-sublicensable, non-transferable (except as provided herein) right, during the Term (defined below), to access and use the Service solely for your internal business purposes and in accordance with any Service documentation or product feature descriptions made available to you by us in tangible or electronic format (collectively “Documentation”). (draft)

1.2. Administrative User - At the commencement of the Service, you will enter certain required information and will identify an administrative contact for your account. You are required to maintain and promptly update all information provided by you during your registration process, and any other information you provide to us, so that it remains true, accurate, up-to-date and complete at all times. (draft)

1.3. Authorized Users - For purposes of these Terms, “Authorized User” means each of your employees, contractors, and other individuals whom you identify to us as being authorized to use the Service on your behalf. Each Authorized User must be assigned a unique email address associated with your company’s domain name and be authorized by your company's Single Sign-On (SSO) system. We reserve the right to disable users in the event of a suspected Security Incident (as defined in the Data Processing Addendum) or breach of these Terms. Each user’s may not be shared and may only be used to access the Software during one (1) concurrent login session. You agree to block the user's access to the Software in case of any actual or suspected unauthorized use of your account, or any other breach or suspected breach of these Terms.

1.4. Updates - We reserve the right to update, upgrade or otherwise modify the Software at any time and with or without notice; provided, however, we will provide advance notice of anticipated downtime when possible. We may suspend provision of the Software, at any time with reasonable notice (except in emergency cases relating to security or adverse impacts on the Service), for security or maintenance purposes or as required by applicable law. We will use commercially reasonable efforts to minimize the duration of any such suspension.

1.5. Privacy Compliance and Information Security - Each party’s performance hereunder will be in compliance with such party’s privacy policy and all applicable privacy laws, rules and regulations. Personal information transmitted, entered or otherwise uploaded by you and your Authorized Users to the Service will be processed in accordance with our Privacy Policy and Data Processing Agreement (“DPA”), and all applicable laws. Our DPA is hereby incorporated by reference and forms an integral part of these Terms. We will maintain appropriate administrative, technical, and procedural safeguards designed to protect the security, confidentiality and integrity of all Customer Content (“Security Measures”). Our Security Measures will include, but will not be limited to, measures designed to prevent unauthorized access to or, disclosure of Customer Content (other than by you or your Authorized Users).

2. OWNERSHIP

2.1. Company Properties - As between you and us, the Service and all content therein (excluding Customer Content, defined below) (collectively, the “Company Properties”), any all and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein (registered or unregistered), are the exclusive property of us and our suppliers. All rights in and to Company Properties not expressly granted to you in these Terms are reserved by us and our suppliers. For the avoidance of doubt, these Terms do not grant you any right to copy, transmit, transfer, modify or create derivative works of the Company Properties, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Company Properties, or any other right in or to the Company Properties not specifically set forth herein

2.2. Customer Content - As between you and us, you are the owner of the content, information, and other data (including, as applicable, any Confidential or personal information) uploaded by you to the Software, or otherwise transmitted by you or your representatives or third-party service providers in connection with your use of the Service (collectively, “Customer Content”). You hereby grant us a non-exclusive, worldwide, royalty-free and fully paid license, during the Term, to use the Customer Content as necessary for the purpose of providing the Service to you. Notwithstanding the foregoing license, we have no obligation to process, render, prepare or produce the Customer Content in any manner or format other than as described in the Documentation. You are responsible for the accuracy, quality and legality of Customer Content, the means by which you acquired Customer Content, your use of Customer Content with the Service and your interoperation of any Customer Content with the Service

2.3. Anonymized, Aggregated Data - We automatically collect certain usage data and information generated by, submitted, or uploaded to the Software relating to certain user actions taken in the platform, such as the number of times users access or use certain Software features such as the number of reviews or goals completed by an Authorized User. We process such data for the purpose of generating anonymized, aggregated statistical data. Such anonymized, aggregated statistical data is used for benchmarking purposes, as well as to maintain, secure, and improve our products and services. Such data does not contain any text narrative which is or was part of Customer Content, Customer Confidential Information, or data or information that can be used to identify Customer, an Authorized User, or any individual.

2.4. License to Use Feedback - You grant us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our Software and Service any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Authorized Users relating to the operation of the Company or the Service

3. TERM and TERMINATION

3.1. Term - The duration of the Software subscription term of each Order Form is the Service Term. The “Effective Date” means the Effective Date specified on the Order Form or, if no date is specified, the date the Order Form was entered. The “Initial Subscription Term” means the Initial Service Term of the Software subscription specified in the Order Form or the period from the Effective Date through the expiration of the Initial Service Term. Unless sooner terminated as provided in this Section 3, these Terms will be effective beginning on the Effective Date and remain in effect for the combined duration of the Initial Subscription Term and any subsequent Service Term (each a “Renewal Term”), such that these Terms are coterminous with the natural expiration or earlier termination of the latest Order Form. The Initial Subscription Term collectively with each Renewal Term is the “Term”. Notwithstanding the foregoing, the maximum term of use for any complimentary Software product is the earlier of the renewal, expiration, or termination of a paid Software product included on the Order Form, provided that use of a complimentary (unpaid) Software product or Service may be terminated by us at any time and for any reason. (draft)

3.2. Renewal - Unless otherwise stated on the applicable Order Form, upon the expiration of each Order Form, each Software Order Form will automatically renew for a consecutive Renewal Term of the same duration as the Initial Subscription Term. Either party may terminate such Order Form by giving the other party written notice of such termination at least thirty (30) days prior to the end of the then-current Initial Subscription Term or Renewal Term, in which case such termination will be effective at the end of such Initial Subscription Term or Renewal Term. In addition to the foregoing, upon Renewal under this Section 3.2 any complimentary Software product on an applicable Order Form will also renew at the then current list price for such Software unless either party provides its notice of intent to terminate such Software subscription in accordance with this Section 3.2. (draft)

3.3. Termination for Breach - Either party may terminate these Terms or any Order Form if the other party materially breaches these Terms or Order Form and fails to cure such breach within thirty (30) days after it receives written notice of such breach. A material breach includes, without limitation, a failure to make a full and timely payment (not disputed in good faith), or a commission of any of the acts contemplated in Section 4.1.

3.4. Effect of Termination - Sections 2 (Ownership), 3 (Term and Termination), 5 (Confidentiality), 6 (Payment of Fees) (with respect to Fees accrued prior to termination), 7 (Warranties and Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10 (Dispute Resolution), and 11 (General) will survive any termination of these Terms. Termination of these Terms with respect to one Order Form does not terminate these Terms with respect to any other Order Form. (draft)

4. CUSTOMER RESPONSABILITIES

4.1. Use Restrictions - You will not, and will not permit any Authorized User to: (a) permit any person or entity to access the Service, other than Authorized Users to the extent authorized under these Terms; (b) use the Service except in accordance with these Terms, the Documentation and applicable law; (c) modify, adapt, alter, or copy the Service; (d) sell, resell, license, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (e) use the Service to store or transmit any “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (f) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of (i) third-party privacy or other rights, or (ii) confidentiality obligations to third parties; (g) access the Service in order to build a competitive product or service; (h) interfere with or disrupt the integrity or performance of the Company Properties; or (i) attempt to gain unauthorized access to the Company Properties

5. CONFIDENTIALITY

5.1. Definition - Each party may have access to the other party’s information, which will be deemed “Confidential Information” if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information that provides a competitive advantage. Your Confidential Information includes Customer Content; Confidential Information of the Company includes all non-public aspects of the Service and these Terms and all Order Forms (including pricing).

5.2. Standard of Care - The receiving party will use the same degree of care as it uses to protect its own Confidential Information of a like nature, but not less than a reasonable degree of care, to (a) prevent use or copying of the disclosing party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights as provided under these Terms, and (b) prevent disclosure of the disclosing party’s Confidential Information other than to its employees (or agents bound by similar confidentiality obligations) with a need to access the Confidential Information for purposes consistent with these Terms. Confidential Information will remain the property of the disclosing party and will be returned or (along with all copies) destroyed upon request, at which time the receiving party will provide to the disclosing party a written certification of such return or destruction. Without limiting any other provision of these Terms, with respect to its obligations under this Section 5, the receiving party will be responsible for the acts and omissions of its employees, contractors and agents to the same extent as if those acts and omissions were those of the receiving party. The parties acknowledge, intend, and agree that this Section 5 and the obligations set forth herein supersede any and all prior confidentiality, non-disclosure, or similar agreements between the parties.

5.3. Exceptions - Information will not be deemed Confidential Information hereunder if it: (i) it is information that becomes generally known to the public through no fault of the receiving party, its affiliates or their agents or representatives; (ii) is or becomes known to the receiving party without restriction from a third party other than as a result of breach of contract or wrongful or tortious act; or (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party’s Confidential Information. Confidential Information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.

6. PAYMENT OF FEES

To Be Defined

7. WARRANTIES AND DISCLAIMER

7.1. Each party represents that it has validly entered into these Terms and any resulting agreement and is not subject to any agreements that conflict with the undertakings provided hereunder.

7.2. We hereby warrant that during the Term:

a. we own, or otherwise properly license, the Software, and the Service, and have the full power and authority required to use, publish, transfer, and/or license any and all rights and interests in and to the Software and Service to you;

b. we shall provide and perform all Software and Service in a professional and workmanlike manner in accordance with prevailing industry standard and practices for similar enterprise software as a service; and

c. all Software, Service, Company Properties, and any other content provided to you under these Terms shall comply with applicable law.

7.3 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE, SOFTWARE, AND ALL COMPANY PROPERTIES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES AND WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE SERVICE, SOFTWARE, OR COMPANY PROPERTIES WILL BE ERROR-FREE OR UNINTERRUPTED. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS ARISING FROM ANY ADVICE PROVIDED BY US IN CONNECTION WITH THE SERVICES. IMPLEMENTATION AND ADVISORY SERVICES ARE PROVIDED AT YOUR OWN RISK. FURTHER, ANY CONFLICTING TERM HEREIN NOTWITHSTANDING, WHERE APPLICABLE, COMPLIMENTARY SERVICES ARE ACCEPTED BY CUSTOMER AS-IS AND ARE NOT SUBJECT TO ANY SERVICE LEVEL AGREEMENT OR PRODUCT PERFORMANCE WARRANTIES.

7.4 You hereby warrant that:

a. you own, or otherwise properly license, the Customer Content;

b. you have the full power and authority to make the license grants hereunder; and

c. the Customer Content provided to us under these Terms shall comply with any applicable law.

8. INDEMNIFICATION

To Be Defined

9. LIMITATION OF LIABILITY

EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (draft)

EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INITIAL EVENT CAUSING OR RESULTING IN SUCH LIABILITY. REGULATIONS AND JUDICIAL PRECEDENT IN CERTAIN STATES LIMIT THE MAXIMUM AMOUNT THAT DAMAGES CAN BE LIMITED BY OPERATION OF CONTRACT. IF UNDER SUCH CIRCUMSTANCES, THE FOREGOING LIMITATION OF LIABILITY IS DEEMED INEFFECTIVE AS A MATTER OF LAW, IT SHOULD INSTEAD BE CONSTRUED TO LIMIT LIABILITY TO THE MINIMUM AMOUNT THAT WOULD BE CONSISTENT WITH SUCH LAWS OR PRECEDENT WHILE STILL GIVING EFFECT TO THE INTENTION OF THIS CLAUSE (draft)

10. DISPUTE RESOLUTION

To Be Defined

11. MISCELANEOUS

11.1. Assignment - Neither party may assign or otherwise transfer these Terms or any rights or obligations hereunder without the written consent of the other party, except that either party may, without such consent, assign or transfer these Terms to an Affiliate or a purchaser of all or substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise. These Terms are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns

11.2. Public Announcements - You grant us the right to use your name, logo, trademarks and/or trade names in press releases, webpages, product brochures and financial reports indicating that you are a customer of ours. All other public statements or releases will require the mutual consent of the parties.

11.3. Relationship of Parties - Neither these Terms nor the cooperation of the parties contemplated under these Terms will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise