Planful APAC Master Subscription Agreement

1. Definitions

1.1 “Agreement” means, collectively, this MSA, the exhibits, addenda, statements of work (“SOW”), and the Order Form(s).

1.2 “Application Services” means Planful’s Financial Planning Services and Marketing Planning Services. For clarity, Application Services refers to each Financial Planning Services or Marketing Planning Services individually in the event that Client is only receiving one solution.

1.3 “AI Features” means any and all training, self-improving, or machine learning software, algorithms, hardware, or other artificial intelligence software, programs, or tools of any kind which are features of Application Services.

1.4 “AI Training” means the use of Client Data to develop, improve, fine-tune, or otherwise refine machine learning or artificial intelligence models intended to provide generalized benefits to any party other than the Client from whose data such training is derived. For the avoidance of doubt, AI Training does not include use of Client Data to provide AI Features exclusively to that same Client’s instance of the Application Services.

1.5 “Authorized User” means an individual that Client authorizes to administer use of the Application Services.

1.6 “Confidential Information” means this Agreement, the Application Services, Planful data security program information, Client Data, all confidential or proprietary information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information will not include information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, and (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

1.7 “Client Data” means all electronic data stored on or transmitted to Application Services by Client.

1.8 “Documentation” means (i) for Financial Planning Services, the on-line documentation Planful provides for use with the Financial Planning Services, which may be amended from time to time and (ii) for Marketing Planning Services, the on-line documentation Planful provides for use with the Marketing Planning Services, which may be amended from time to time.

1.9 “Financial Planning Services” means Planful’s financial planning and analysis software as a service solution listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Planful.

1.10 “Input Data” means any data Client inputs into the AI Features, including Prompts.

1.11 “Intellectual Property Rights” means any patent, copyright, or trademark under the laws of the United States or the country where the Client is headquartered.

1.12 “Marketing Planning Services” means Planful’s operational marketing software as a service solution listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Planful.

1.13 “Order Form” means a document executed by both parties that details the subscriptions purchased by Client, including the subscription quantities; subscription start dates, end dates and, if applicable, any auto-renewals; associated fees; the support services; professional services; and other related details. If multiple Order Forms are executed related to this Agreement, each Order Form will have a unique identification and each such Order Form will form a separate contract between the parties.

1.14 “Output Data” means the summaries and other content generated by AI Features, including as a result of processing of Client Data.

1.15 “Planful Admin Managed Services” means an administrative service provided to Client by a Planful in which a Planful employee administrates Client’s Financial Planning Services tenant.

1.16 “Prohibited Data” means with regards to Client’s use of the AI Features, personally identifiable information (including but not limited to personal health information, or any data that is considered ‘special’ or ‘sensitive’ under any law, regulation, or statute that is applicable to Client or Planful).

1.17 “Prompt” means the question or other request a user submits to an AI Features.

1.18 “Subscription Term” means the ordering period during which the Application Services are available to Client for use pursuant to the Order Form.

1.19 “Trial” means temporary access to Trial Services for which no fees are charged, subject to the terms and conditions of this Agreement.

1.20 “Trial Services” means any and all corrections, updates, modifications, releases, versions, and enhancements to Application Services which have not been generally released by Planful, which Client has received access to free of charge.

2. Provision of Services

2.1 License Grant. Subject to the terms and conditions of this Agreement, Planful grants to Client during the Subscription Term the worldwide, non-exclusive, revocable, limited, non-transferable, royalty-free right for the Authorized Users to access and use the Application Services consistent with the Documentation and the Order Form solely for its internal business purposes or as otherwise indicated in the applicable Order Form. Planful will make the Services available to Client in accordance with service levels set forth at https://planful.com/planful-sla/. Planful may update the Application Services during the Subscription Term, however, at no time will an update materially diminish the function of the Application Services.

2.2 Restrictions. The license granted in Section 2.1 is conditioned upon Client’s compliance with this Agreement. Client shall not directly or indirectly: (a) permit any third party to access the Application Services except as permitted herein or in an Order Form, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Application Services for commercial time sharing, outsourcing or otherwise commercially exploit the Application Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Application Services, other than on Client’s own intranets; (f) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services; (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services or Documentation or (h) use the Application Services in violation of Planful’s Acceptable Use Policy, which may be updated from time to time. In no event will an update to the Acceptable Use Policy impose additional material obligations or fees on Client during the Subscription Term without Client’s written consent.

2.3 Access and License to Client Data. During the Subscription Term, Client grants to Planful a non-exclusive, worldwide, royalty-free, fully paid-up right and license to copy, access, transmit and otherwise process the Client Data to provide the Application Services to Client as set forth in this Agreement. Planful will not: (a) access Client Data except (i) to provide the Application Services and the associated support services; (ii) to prevent or address service, security or technical problems with the Application Services; (iii) to monitor Client’s use of the Application Services and confirm Client’s compliance with the Agreement; (iv) as compelled by law; or (v) as Client expressly permits in writing. Planful may aggregate de-identified information regarding Client’s usage and configuration metrics of Application Services (which in no event shall include Client Data) with that of other Planful clients and use such aggregated Client services data as part of the Application Services.

2.4 Client Responsibilities. Client shall be responsible for Authorized Users’ compliance with this Agreement and for Client Data. Client shall not (i) use the Application Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Application Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, (iii) interfere with or disrupt the integrity or performance of the Application Services or third party data contained therein, or (iv) attempt to gain unauthorized access to the Application Services or Planful’s related systems or networks. Client shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services, and notify Planful promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Application Services and all charges related thereto. In addition to the above restrictions, Client shall not (x) input any Prompts which contain Prohibited Data; or (y) use the AI Features in violation of Planful’s AI Acceptable Use Policy.

2.5 Professional Services. If Client purchased professional services from Planful, Planful will provide Client with professional services in accordance with the Professional Services Addendum available at Professional Services Addendum (as updated from time to time, the “Professional Services Addendum”). The Professional Services Addendum shall only apply if Planful’s Professional Services team provides the professional services. Client acknowledges that it may involve third parties to implement the Application Services. Client acknowledges that any third parties implementing the Application Services are not Planful’s agents. Planful shall not be liable for any professional services, including the implementation of Application Services, performed by authorized third parties (“Planful Partners”) or any unauthorized third parties. Client agrees that Planful is not responsible for the remediation or remedy of any implementation issues when such implementation is performed by a Planful Partner or any other third party. In the event there are any issues with the implementation of Application Services performed by Planful Partners, Client shall inform Planful without undue delay. Planful shall work with Client in good faith to assist Client in finding an appropriate path to remediation.

2.6 Planful Admin Managed Services. If Client purchased Planful Admin Managed Services (“PAMS”) from Planful, Planful will provide PAMS in accordance with the terms of this Agreement and the applicable PAMS documentation. Client acknowledges and agrees that a designated Planful employee will access and use Client Data for the sole purpose of providing PAMS to Client. PAMS shall only be used for its intended purposes and will not be used for any regulatory filings, compliance measures, or any tasks outside of the Financial Planning Services administration. Client is responsible for ensuring that all Client Data is accurate and up to date and reviewing any work product produced by PAMS. PLANFUL DOES NOT WARRANT THAT PAMS (A) WILL MEET CLIENT’S SPECIFIC REQUIREMENTS; (B) THAT PAMS WILL BE PROVIDED FREE OF ERROR; OR (C) ANY WORK PRODUCT PRODUCED WILL BE ACCURATE AND FREE OF ERROR.

2.7 Trials and Trial Services

(a) Offering of Trial. If Client registers or otherwise accepts a Trial, with such registration and acceptance at Client’s discretion, Planful shall make Trial Services available to Client free of charge until the earlier of (i) the incorporation of Trial Services into the Application Services or (ii) termination by Planful in its sole discretion. Planful shall have sole discretion as to whether Client is eligible for a Trial.

(b) Trial Disclaimers. ANY CLIENT DATA CLIENT ENTERS INTO THE TRIAL SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE TRIAL SERVICES BY OR FOR CLIENT DURING A TRIAL WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SAME APPLICATION SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORT SUCH CLIENT DATA, BEFORE THE END OF THE TRIAL PERIOD. CLIENT CANNOT TRANSFER CLIENT DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE TRIAL TO APPLICATION SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CLIENT PURCHASES A SUBSCRIPTION TO APPLICATION SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CLIENT MUST EXPORT CLIENT DATA BEFORE THE END OF THE TRIAL PERIOD OR CLIENT DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES” SECTION AND “INDEMNIFICATION BY PLANFUL” SECTIONS BELOW (SECTIONS 7.1 AND 7.2), DURING THE TRIAL ALL FEATURES AVAILABLE THROUGH THE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PLANFUL WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES FOR THE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PLANFUL’S LIABILITY WITH RESPECT TO THE TRIAL SERVICES PROVIDED DURING THE TRIAL SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE FOREGOING, PLANFUL AND ITS AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) USE OF THE TRIAL SERVICES DURING THE TRIAL PERIOD WILL MEET REQUIREMENTS, (B) USE OF THE TRIAL SERVICES DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PLANFUL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT AND CLIENT’S AUTHORIZED USERS USE OF THE TRIAL SERVICES DURING THE TRIAL PERIOD AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

(c) Trial Services. Planful may make Trial Services available to Client at Planful’s sole discretion. Access to and use of Trial Services is subject to the terms and conditions of this Agreement. In the event there is a conflict between this Section of this Agreement and any other Section of this Agreement, this Section shall control. Trial Services are offered to Client free of charge. Client acknowledges and agrees that Planful in its sole discretion and for any or no reason, may terminate Client’s use of or access to Trial Services or any part thereof. Client agrees that any termination of Client’s use of or access to Trial Services may be without prior notice, and Client further agrees that Planful will not be liable to Client or any third party for such termination. Client is solely responsible for exporting Client Data from Trial Services, if applicable, prior to termination of Client’s access to Trial Services for any reason, provided that if Planful terminates Client’s account, except as required by law, Planful will provide Client a reasonable opportunity to retrieve Client Data.

(d) Trial Services Disclaimers. NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES” SECTION AND “INDEMNIFICATION BY PLANFUL” SECTIONS BELOW (SECTIONS 7.1 AND 7.2), TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PLANFUL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO TRIAL SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PLANFUL’S LIABILITY WITH RESPECT TO TRIAL SERVICES SHALL NOT EXCEED $500.00. WITHOUT LIMITING THE FOREGOING, PLANFUL AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF TRIAL SERVICES WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF TRIAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH TRIAL SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PLANFUL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF TRIAL SERVICES, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3. Intellectual Property Ownership

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

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

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

3.1 Prohibition on AI Training with Client Data. Notwithstanding anything to the contrary in this Section 3 or elsewhere in this Agreement, Planful shall not use Client Data for AI Training. This prohibition applies to: (a) all AI Features and any other AI or machine learning functionality within the Application Services; (b) any third-party AI infrastructure, large language model providers, or subprocessors engaged by Planful that process Client Data; and (c) any AI features or functionality added to the Application Services after the Effective Date of this Agreement. Planful represents and warrants that, as of the Effective Date, its AI functionality processes Client Data solely to deliver outputs to that same Client’s instance of the Application Services, and that Client Data is not pooled with data from other clients for model training purposes. Upon Client’s written request, Planful shall provide written certification confirming its compliance with this Section 3.1.

4. Payment Terms

4.1 Fees; Payment. Client shall pay Planful, directly or through the Reseller with which Client contracted, in accordance with the amounts and dates specified on the Order Form. All Fees will be invoiced in advance in accordance with the Order Form. In the event the Agreement automatically renews pursuant to Section 5.1 herein, the Fees will be invoiced in advance and in accordance with any uplift, if applicable, set forth on the Order Form applicable to the previous Subscription Term. All invoices that are more than 30 days overdue, and all credit accounts that are delinquent, shall be assessed a 1.5% late payment charge (or if this exceeds the legally permitted maximum, the highest legal rate under applicable law) for each month the invoice is not paid or the account is delinquent. Client will reimburse Planful for all reasonable costs (including reasonable attorneys’ fees) incurred by Planful in connection with collecting any overdue amounts. Except as otherwise specified in this Agreement payment obligations are non-cancelable and fees paid are non-refundable, and the subscriptions purchased cannot be decreased or exchanged for alternative subscriptions. If any amount owed by Client is thirty (30) days or more overdue, Planful may, with seven (7) days’ prior notice to Client, without limiting Planful’s other rights and remedies, suspend Application Services and access to data until such amounts are paid in full. Planful may also suspend Client’s access to the Application Services, in whole or in part, immediately upon written notice (or, where circumstances reasonably permit, with commercially reasonable prior notice) if Planful reasonably determines that: (a) Client’s use of the Application Services poses a security risk to Planful or any third party; (b) Client’s use of the Application Services may adversely impact the Application Services, the systems or data of other Planful customers, or Planful’s ability to provide services to other customers; (c) Client is in violation of Section 2.2, Planful’s Acceptable Use Policy, or applicable law; or (d) Client’s use of the Application Services may subject Planful to liability. Any suspension under this paragraph shall not (i) constitute a breach of this Agreement by Planful, (ii) relieve Client of its payment obligations under this Agreement, or (iii) limit Planful’s right to terminate this Agreement in accordance with Section 5.1. Planful will use commercially reasonable efforts to limit the scope and duration of any suspension to what is reasonably necessary to address the applicable issue and will promptly restore access once the issue giving rise to the suspension has been resolved.

4.2 Taxes. All fees are exclusive of all sales and use taxes, value-added taxes, excise taxes, levies, or duties which may be imposed by applicable national or federal, state/provincial or local municipalities relating to Client’s purchase of subscriptions or use of the Application Services (the “Taxes”), and Client will be responsible for payment of all such Taxes. Unless Client provides Planful with evidence of its sales tax exemption, Planful will invoice Client, and Client shall pay Planful all relevant taxes payable related to Client’s purchases, excluding taxes based on Planful’s net income. Client will pay all fees free and clear of, and without reduction for, any such Taxes, including withholding taxes imposed by any country. Client will provide receipts issued by the appropriate taxing authority to establish that such Taxes have been paid.

5. Agreement Term; Subscription Term; Termination

5.1 Term; Termination. This Agreement begins on the Effective Date and, unless earlier terminated as set forth below or otherwise in this Agreement, will continue while there is an active Subscription Term. If this Agreement has not been terminated early in accordance with this section, each subscription described in an Order Form will continue for its Subscription Term. Notwithstanding the foregoing, any promotional or one-time priced subscription will not be subject to any renewal. Either party may terminate this Agreement (or any relevant Order Form) for cause (i) upon the other party’s material breach that remains uncured for thirty (30) days following written notice, except that in the event of a breach of Sections 2.2 or 3, for which the cure period is five (5) days following written notice; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.

5.2 Effects of Termination; Survival. Upon expiration of this Agreement in the event it is not renewed by the parties or termination of this Agreement: (a) all subscriptions, licenses, right to use or access the Application Services will cease; (b) at Client’s written request made within twenty-eight (28) days after such termination or expiration, Planful will provide Client with temporary access to the Application Services for the sole purpose of retrieving Client Data in a commercially standard, machine-readable format; provided that if Client requires data extraction beyond the standard export functionality of the Application Services, such extraction shall be at Client’s expense at Planful’s then-current professional services rates. If Client does not submit a written request for data retrieval within such twenty-eight (28) day period, Planful will permanently delete or destroy Client Data; (c) for Planful’s material breach of the Agreement, Planful will refund to Client amounts owed to Client in respect of unused Application Services as of the effective date of the termination; and (d) Sections 1, 2.3, 3, 4, 5.2, 6.2, and 7 through 10 will survive. In the event Client does not request either deletion or return of Client Data, Planful will permanently erase Client Data following the expiration of the 28-day period.

5.3 Fee Acceleration. If this Agreement or any Order Form is terminated by Planful due to Client’s uncured material breach pursuant to Section 5.1, all unpaid fees for the remainder of the then-current Subscription Term under each affected Order Form shall become immediately due and payable. Client acknowledges that the fees set forth in each Order Form reflect a minimum commitment for the applicable Subscription Term and that this Section 5.3 is not a penalty but reflects the parties’ agreement as to the minimum consideration for Planful’s performance obligations during the Subscription Term.

6. Representations and Warranties

6.1 Limited Warranty by Planful

(a) Conformity with Documentation. Planful warrants that Application Services will perform substantially in accordance with the applicable Documentation when used in accordance with this Agreement for the Subscription Term. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Application Services has resulted from installation, deployment, use, maintenance or support not in accordance with this Agreement or the Documentation, modification by Client, an Authorized User, or a third party not authorized by Planful, force majeure, or any breach of this Agreement by Client or an Authorized User. In the event of an Application Services warranty claim, Client’s sole and exclusive remedy and Planful’s entire obligation and liability shall be, at Planful’s sole option, to either (i) provide a correction, update or upgrade of the Application Services, (ii) correct or replace the Application Services, or (iii) refund Client, directly or through the Reseller with which Client contracted, a pro-rated amount of the applicable Fees pre-paid by Client covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination and terminate this Agreement. All warranty claims must be made to Planful in writing within the Subscription Term.

(b) Malicious Code. Planful warrants that Planful tests Application Services for all known software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”). To Planful’s knowledge, Application Services do not contain Malicious Code.

6.2 Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, PLANFUL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE APPLICATION SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EXCEPT AS PROVIDED IN SECTION 6.1.

7. Indemnification

7.1 Intellectual Property Indemnification by Planful. Planful will defend Client against any claim, demand, suit or proceeding (“Claim”) made or brought against Client by a third party alleging that Client’s use of the Application Services in accordance with this Agreement infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Client from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Planful under a settlement of, such Claim made in accordance with the terms of Section 7.4 (Indemnity Process). The foregoing obligations do not apply to any Claim based on or arising from: (A) any modification of the Application Services not done by Planful or strictly in accordance with Planful’s written instructions, if the Claim would not have arisen but for such modification; (B) any failure by Client to implement updates or upgrades to the Application Services as supplied by Planful, if the Claim would not have arisen had such update or upgrade been implemented; (C) the combination, operation, or use of the Services with non-Planful programs, data or documentation not recommended by the Documentation or Planful in writing, if such infringement would have been avoided by the use of the Application Services without such combination, operation or use; (D) any use of the Application Services that is not expressly permitted under this Agreement or the Documentation, (E) Client’s continued use of infringing Application Services after Planful, at no additional charge, supplies or offers to supply modified or replacement non-infringing Application Services as contemplated under Section 7.2 below; (F) the Client Data; (G) infringement or misappropriation resulting from Output Data; or (H) Trials, Trial Services, or Beta Services.

7.2 Intellectual Property Infringement Remedy. If Planful receives written notice from Client of an infringement or misappropriation Claim arising directly out of the Application Services (and not arising subject to the exceptions stated in Section 7.1), Planful may in its discretion and at no cost to Client either (i) modify the Services so that they no longer infringe or misappropriate; (ii) obtain a license for Client’s continued use of the Application Services in accordance with this Agreement; or (iii) if (i) and (ii) are not practicable despite Planful’s reasonable efforts, then Planful may terminate Client’s subscription to the infringing Application Services and refund Client a pro-rated amount of any prepaid fees covering the remainder of the Subscription Term of the terminated subscription. This Section 7 states Planful’s sole liability, and Client’s exclusive remedy, for any infringement or misappropriation of third-party intellectual property rights by the Application Services.

7.3 Intellectual Property Indemnification by Client. Client will defend Planful against any Claim made or brought against Planful by a third party alleging that Client Data infringes on a third party’s Intellectual Property Rights, and will indemnify and hold harmless Planful from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Client under a settlement of such Claim made in accordance with the terms of Section 7.4 (Indemnity Process).

7.4 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the Claim to the indemnifying party; (b) giving the indemnifying party, at the indemnifying party’s expense, sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability for the Claim without acknowledgment by the indemnified party of fault or wrongdoing); (c) providing to the indemnifying party all available information in its possession and reasonable assistance in connection with the Claim, at the indemnifying party’s request; and (d) not compromising or settling such Claim. The indemnified party may otherwise participate in the defense of the Claim, at the indemnified party’s sole expense (not subject to reimbursement).

8. Limitation of Liability

8.1 Limitation of Damages. NEITHER PARTY WILL BE RESPONSIBLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF CLIENT DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE APPLICATION SERVICES, ANY INTERRUPTION, INACCURACY OR ERROR IN THE DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 Limitation of Amount. EXCEPT FOR CLIENT’S PAYMENT OBLIGATIONS FOR APPLICATION SERVICES FEES DUE IF UNPAID, EACH PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, AND DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PLANFUL NOR CLIENT SHALL BE LIABLE FOR AGGREGATE LIABILITY THAT EXCEEDS THE SUMS ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE ORDER FORM(S) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT FROM WHICH THE CLAIM AROSE.

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

9. Information Protection

9.1 Confidentiality. Each party acknowledges that in connection with this Agreement it may obtain Confidential Information of the other party. The Receiving Party shall not access or use, or permit the access or use of, the Confidential Information of the Disclosing Party other than as necessary to perform the Receiving Party’s obligations or exercise its rights hereunder. The Receiving Party may not knowingly disclose, or permit to be disclosed, the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, except that the Receiving Party may disclose the Disclosing Party’s Confidential Information solely to the Receiving Party’s employees, officers, directors, consultants, contractors, agents or advisors (“Representatives”) who have a need to know for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential consistent with this Agreement. The Receiving Party acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement. The Receiving Party agrees to exercise due care in protecting the Disclosing Party’s Confidential Information from unauthorized use and disclosure and will not use less than a reasonable degree of care. If the Receiving Party or any of its Representatives is required pursuant to a judicial or other governmental order or proceeding to disclose any Confidential Information of the Disclosing Party, then, to the extent permitted by applicable law, the Receiving Party shall promptly notify the Disclosing Party of such requirement prior to disclosure so that the Disclosing Party can seek a protective order or other remedy. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. Except as provided in Section 6.1, neither party makes any warranties or representations in this Agreement or in any prior dealings between the parties related to the accuracy, completeness, or applicability of its Confidential Information.

9.2 Data Privacy. Planful will comply with its Privacy Policy, which will be updated from time to time. In no event will an update to the Privacy Policy impose additional material obligations or fees on Client during the Subscription Term without Client’s consent. For Clients subject to Australia’s Privacy Act 1988, New Zealand’s Privacy Act 2020, General Data Protection Regulation, or the California Consumer Privacy Act, Planful agrees to comply with its data processor obligations under the applicable data processing addendum (“DPA”). Client acknowledges that Planful has no responsibility or liability for any content of the data Client processes with the Application Services. Client further acknowledges and agrees that (i) the Application Services function only as a tool or vehicle for data processing and (ii) Planful cannot and does not control the jurisdiction where the data originates. Client shall ensure that Client Data and Client’s use of the Application Services comply with applicable data protection and privacy laws, especially with laws that apply to the use or transmission of sensitive information, personal data or information or personally identifiable information.

9.3 Information Security. Planful shall maintain a comprehensive information security program designed to protect Client Data against unauthorized access, use, disclosure, alteration, or destruction (“Information Security Program”). The Information Security Program shall include administrative, physical, and technical safeguards that are consistent with industry standards, including the objectives set forth in SOC 2 Type II. Without limiting the foregoing, Planful shall: (a) encrypt Client Data in transit and at rest using industry-standard encryption protocols; (b) implement and maintain access controls, including least-privilege access and multi-factor authentication for administrative access to systems that process Client Data; (c) maintain logging and monitoring of access to Client Data; (d) conduct regular vulnerability assessments and penetration testing; and (e) maintain an incident response plan. Planful will make its most recent SOC 2 Type II report (or equivalent successor certification) available to Client upon written request, subject to Planful’s reasonable confidentiality requirements. Planful shall not materially diminish the protections of its Information Security Program during the Subscription Term. A detailed description of Planful’s current security practices is available at Information Security Addendum (as updated from time to time, the “Security Policy”).

10. General

10.1 Notices. All notices given under this Agreement shall be in writing and shall be deemed given upon receipt. All notices shall be sent to the parties at their respective address on the Order Form, or to such email address or address as subsequently modified by written notice given in accordance with this section. For Planful, all legal notices must be addressed to legal@planful.com.

10.2 Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to an entity that acquires all or substantially all of the assets or equity of the assigning party; provided, further that the party receiving the assignment assumes all of the rights of the assigning party. Any attempted assignment in violation of the foregoing will be null and void.

10.3 Governing Law; Venue; Dispute Resolution. If Client is domiciled in a country in North America or South America, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of California, USA, without regard to conflicts of law provisions. If Client is domiciled in a country in Europe, Middle East, or Africa (“EMEA”), this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of law provisions. If Client is domiciled in a country in the India subcontinent, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws India, without regard to conflict of law provisions. If Client is domiciled in a country in Asia Pacific or Oceania, this Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of Australia, without regard to conflict of law provisions. Neither the U.N. Convention on Contracts for the International Sale of Goods nor UCITA will apply. This Section shall not preclude parties from seeking provisional/equitable remedies in aid of arbitration from a court of appropriate jurisdiction.

Except for disputes related to nonpayment of Fees, which shall be settled by litigation, any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, if Client is headquartered outside of EMEA, Asia Pacific, or Oceania, shall be determined by final and binding arbitration administered by JAMS in San Francisco, California, USA before: (a) one arbitrator if the amount of the claim(s) is less than One Million Dollars ($1,000,000); or (b) three (3) arbitrators if the amount of the claim is equal to or greater than One Million Dollars ($1,000,000) (with each party choosing one arbitrator and the two selected choosing the third arbitrator). The arbitration shall be administered by JAMS pursuant to the following JAMS Rules: (i) if both parties to the Agreement are based in the United States (even if one has a parent company located outside the United States) and the amount of the claim(s) is less than $1,000,000, the JAMS Streamlined Arbitration Rules and Procedures; if both parties are located in the United States (even if one has a parent company located outside the United States) and the amount of the claim(s) is equal to or greater than $1,000,000, the JAMS Comprehensive Arbitration Rules and Procedures; and (ii) if one of the parties to the Agreement is based outside the United States but not in EMEA, the JAMS International Arbitration Rules and Procedures. In the foregoing examples, the Agreement is governed by the laws applicable in, and the arbitration panel shall apply the laws applicable in, the State of California, USA (excluding its principles of conflicts of laws). In the event that one of the parties is headquartered in EMEA and such party has not entered into this Agreement through a US subsidiary, then the arbitration shall be administered by JAMS in London using the JAMS International Rules and Procedures and applying the laws of England and Wales. In the event that one of the parties is headquartered in Asia Pacific or Oceania, arbitration shall be administered by JAMS in a location to be mutually agreed upon by the parties in New South Wales, Australia using the JAMS International Rules and Procedures, and applying the laws of Australia. In any scenario, judgment on the arbitral award may be entered in any court having jurisdiction thereof.

10.4 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Application Services. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.

10.5 Export Compliance. The Application Services may be subject to U.S. and foreign export control laws. Client agrees to comply with all laws and regulations of the United States and other countries where the Application Services are used by Client to ensure that they are not exported, directly or indirectly, in violation of such laws.

10.6 Force Majeure. Neither party shall be liable for its inadequate performance under this Agreement caused by any condition beyond the reasonable control of the affected party, including but not limited to acts of God, acts of government, pandemics, third party criminal acts, acts of terror or civil unrest. The affected party shall use its best efforts to mitigate, avoid or remove such cause or non-performance and to restore performance to normal level as quickly as possible whenever such causes are removed.

10.7 Insurance. Planful shall maintain, at its expense, during the Subscription Term workers’ compensation insurance as required by applicable law, and commercial general liability insurance, errors and omissions liability insurance, cyber security insurance, and umbrella liability insurance from financially sound insurance companies having coverages and limits of liability that are commercially reasonable. Upon request, Planful will provide Client with proof of such insurance.

10.8 Waiver; Amendment; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is determined to be unenforceable by any tribunal, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect.

10.9 Entire Agreement; Order of Precedence. This Agreement, the Order Form(s), and Addenda form the entire agreement between Client and Planful regarding the subject matter hereof. Any conflict between this Master Subscription Agreement, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form in date order with the most recent Order Form being of highest precedence; (b) any SOW; (c) this MSA; and (c) any addenda or exhibit. This entire agreement supersedes all prior or contemporaneous negotiations or agreements, both oral and written, between the parties regarding its subject matter. Any preprinted terms on any Client purchase order will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes.

10.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. The parties have caused this Agreement to be executed by their respective authorized representatives, as of the date indicated below the representative’s signature.