Solution Agreement

Solution Agreement version 23 February 2024

THIS MURMURATTO SOLUTION AGREEMENT (“Agreement”) applies to agreements entered into on or after 23 of February, 2024 (“Effective Date”) by and between Cognitio Corporation dba Murmuratto a Puerto Rico corporation (“Murmuratto”) and the customer (“Customer”) identified on an Order (as defined below) entered into in writing by the parties that incorporates this Agreement by reference. This Agreement is effective on the effective date (“Effective Date”) as stated in such Order. Customer and Murmuratto are referred to herein as “party” or “parties.”  

This Agreement governs Customer’s license and use of Murmuratto’s proprietary SaaS opportunity management platform and related services (collectively as further defined herein as the “Solutions”) as described in one or more Orders for the purchase of such Solutions. The Order shall identify the version number of the Agreement and shall be governed solely by the version of the Agreement corresponding to that version number. This Agreement may not be modified during the term of an Order except in a writing, signed by both parties.  Each Order forms an integral part of this Agreement.

This Agreement shall govern whether Customer purchases the Solutions directly from Murmuratto or indirectly through an authorized Murmuratto partner or reseller as applicable; provided that if Customer purchases the Solutions through an authorized Murmuratto partner or reseller, the term Order as used herein shall refer to the order entered into between Murmuratto and such partner or reseller for resale to Customer. 

Capitalized Terms as used herein shall have the meaning set forth in the definition section found at the end of this Agreement.

BY ENTERING INTO AN ORDER INCORPORATING THIS AGREEMENT BY REFERENCE (OR IN THE CASE OF A PURCHASE VIA AN AUTHORIZED MURMURATTO PARTNER/RESELLER BY CUSTOMER ENTERING INTO AN ORDER WITH SUCH PARTNER OR RESELLER INCORPORATING THIS AGREEMENT BY REFERENCE), THE PARTIES HEREBY MUTUALLY AGREE AS FOLLOWS:

1.      Solutions.

1.1 SaaS Software License. Subject to the terms hereof, Murmuratto hereby grants Customer a non-exclusive, non-transferable (except for a permitted assignment), non-sublicensable (except for the Licensed Entities as specified in Section 1.2 hereof) right and license, during the subscription period set forth in the Order, to access and use the SaaS Software subject to and in accordance with the terms of this Agreement, the Documentation and the Order. 

1.2 Licensed Entities.   Each Order shall specify the Licensed Entities authorized to the use the SaaS Software. Notwithstanding anything herein to the contrary, the SaaS Software shall be used solely by Customer and/or its Affiliates that are within the scope of the Licensed Entities (as specified in the Order). If the description of the Licensed Entities in an Order expressly permits use by the Licensed Entities for the benefit of their End Clients, such license right includes the right of Customer and its Affiliates (as Licensed Entities) to use the SaaS Software to provide managed services to their End Clients.  In such case, Customer and/or its Affiliate (as Licensed Entities) are required to manage the use of the SaaS Software for their End Clients and the End Clients may be granted access to the SaaS Software solely for the purpose of using the SaaS Software within the scope of the license rights granted to Customer.  Customer is responsible for the acts and omissions of the Licensed Entities (including as applicable, their End Clients and for their respective Representatives) to the same extent as it is responsible for its own acts and omissions hereunder.  In addition, Customer agrees to enter into a binding agreement with the End Clients which includes the following terms: (i) license terms and restrictions conforming with and at least as restrictive as the license terms and restrictions set forth in this Agreement in Section 1.1 and 1.3 hereof; (ii) confidentiality obligations substantially similar to the confidentiality requirements set forth in this Agreement; (iii) ownership terms reserving all right, title and interest in the Murmuratto Property to Murmuratto; and (iv) disclaiming all warranties (express or implied) and all liability of Murmuratto to the End Clients and their Users. 

1.3 License Restrictions.  Except as expressly authorized in Section 1.2 hereof, Customer, the Licensed Entities and their Representatives shall not (i) sublicense, resell, transfer, or make the Solution available to, use the Solution on behalf of, or for the benefit of any third party; (ii) modify, reverse engineer, decompile or attempt to discover, expose or recreate the source code of the SaaS Software; (iii) violate Murmuratto’s Intellectual Property Rights in the Solutions; (iv) use the Solutions in a manner that violates Applicable Laws including without limitation any export laws; or (v) publish or disclose to any third party any benchmarking or comparative analysis of the SaaS Software.   Except for the limited license rights expressly granted hereunder, Murmuratto and its licensors reserve and retain all right, title and interest to the Murmuratto SaaS Software and Murmuratto Property.

1.4 Service Level Terms.  Murmuratto agrees to provide the SaaS Software in accordance with the Murmuratto Service Level Terms found at Service Level Terms (having the version number specified in the Order) (“Service Level Terms”).  Murmuratto reserves the right to update the Service Level Terms in its discretion, provided that Murmuratto will not diminish the service levels or support standards.

1.5 Murmuratto Professional Services.  Murmuratto shall provide Professional Services solely as specified in an Order.

1.6 User Access.  All Users of the SaaS Software must be residents of the Licensed Territory and Customer is responsible for ensuring its compliance with such requirement. Customer shall not exceed the volume usage metrics specified in the Order.  Customer shall deactive and delete a User account promptly following a change in the employment or contract status of the User and shall notify Murmuratto in writing within 10 business days of the change of status.  Customer agrees not to permit any persons other than an authorized User to use SaaS Software Solutions or to enter, transmit or process data using the SaaS Software. Customer is responsible for all data entered, transmitted or processed through Customer’s accounts. Identification codes and/or passwords are required for access to the SaaS Software for security purposes. Customer agrees to keep confidential any such identification codes and/or passwords and to restrict access to such identification codes and passwords to its authorized Users. Customer agrees to notify Murmuratto immediately if Customer has reason to believe that unauthorized persons have obtained access to such identification codes or passwords, any unauthorized use of Customer’s accounts or if Customer becomes aware of any other breach of security related to the Solutions. Murmuratto reserves the right to temporarily suspend the account and/or passwords in the event of an actual or probable suspected security breach as reasonably necessary to protect Customer and the Customer data.  Murmuratto will endeavor to provide prior notice for any such suspension and will work in good faith with Customer to resolve the issue and restore access as soon as reasonably possible.

1.7 Customer Obligations. Customer is responsible for the systems that it uses to access the SaaS Platform including hardware, software, networking systems, web browsers and for maintaining the confidentiality and security of its administrative and user passwords. 

2. Order; Fees & Taxes. In the event Customer purchases the Solutions from a Murmuratto authorized partner/reseller, Section 2 shall not apply, and the Order for purposes of this Agreement shall be the Order entered into between Murmuratto and the partner/reseller.

2.1 Order Process. If Customer wishes to order Solution(s), the parties shall enter into one or more Orders. Each Order shall specify, as applicable, the Solution(s) ordered (including a description thereof), quantit(ies), Licensed Entit(ies), fees and Order term.  A Customer Affiliate may enter into an Order pursuant to this Agreement and, in such case, by entering into the Order, the Affiliate agrees to be bound by the terms and conditions of this Agreement with respect to such Order and such Affiliate shall be considered to be the Customer, as such term is used herein, with respect to such Order. An Affiliate shall not have any liability under this Agreement unless it signs the applicable Order. 

2.2 Fees & Taxes.  Customer agrees to pay Murmuratto the fees specified in an Order. The invoicing schedule and payment terms for the fees shall be specified in the Order.  If applicable and solely as pre-approved in writing by Customer, Customer shall also pay any reasonable and necessary travel expenses incurred in connection with the Professional Services. Customer is responsible for any taxes due on account of its use and purchase of the Solutions including any excise, value-added, contractor tax and withholding taxes, but excluding taxes based on Murmuratto’s income. In the event that Customer is required by Applicable Law to withhold any fees for payment of withholding or contractor taxes, Customer will gross up the amount of the fees payable to Murmuratto to account for such withholding amount.  Interest at a rate of 1% per month shall accrue on any unpaid fees which are not the subject of a good faith dispute as to the correctness or accuracy of the invoice. 

3. Representations & Warranties.

3.1 Authority.  Each party hereby represents and warrants to the other party that it has the full corporate right, power and authority to enter into, and fully perform its obligations under this Agreement.

3.2 Compliance with Laws. Each party represents and warrants that it will comply with all Applicable Laws in connection the performance of its obligations and the exercise of its rights under this Agreement.

3.3 Customer Necessary Rights Warranty. Customer represents and warrants that it has the necessary consents, permissions, notices and opt-ins in place to enable the lawful transfer and processing of the Customer Data (including any Personal Information), provided or made available by or on behalf of Customer and/or the Licensed Entities, to Murmuratto (including via the Murmuratto SaaS Software) for the duration and purposes of this Agreement. 

3.4 Anti-Virus Warranty.  Murmuratto will use generally prevailing industry practices designed to prevent the SaaS Software from containing any virus, disabling or harmful code designed to interfere with or provide unauthorized access to Customer Data or Customer software or systems used in combination therewith.

3.5 SaaS Software and Professional Services — Performance Warranty.  Murmuratto represents and warrants that the SaaS Software and Professional Services, as applicable (i) shall be performed in a professional manner consistent with generally prevailing industry practices; (ii) shall be performed by qualified personnel; and (iii) shall be performed in accordance with the terms of the Documentation and the Order.    To make a valid claim for breach of the performance warranties set forth in Sections 3.5, Customer must provide written notice of the breach within 30 days of the date that the nonconforming portion of the Solution was performed.  In the event Customer provides timely notice of a breach, as Customer sole and exclusive remedy for breach of the performance warranties, Murmuratto shall re-perform or correct the nonconforming Solution provided that if Murmuratto does not correct or re-perform within 30 days of the date of notice of a breach, Customer may terminate the applicable Order and obtain a pro-rated refund of the prepaid unused fees.

3.6  Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOLUTIONS ARE PROVIDED “AS IS” AND MURMURATTO DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT.  SUBJECT TO THE SERVICE LEVEL TERMS, MURMURATTO DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OR USE OF THE SAAS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE PROVIDED SOLELY TO CUSTOMER, AND IF THE LICENSED ENTITIES INCLUDE END CLIENTS, MURMURATTO MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, SUCH END CLIENTS OR THEIR USERS.

4.  Indemnification.

4.1 Murmuratto Indemnity Obligations. Murmuratto shall defend, indemnify and hold Customer and its Affiliates and their officers, directors and employees harmless from and against any and all claims, suits, actual damages, costs and expenses, including reasonable attorneys’ fees, brought against or suffered by such Customer indemnified parties arising out of a third party claim or legal process (including a subpoena, order, deposition, interrogatories) (i) for tangible property damage, personal injury or death arising out of the performance of the Solutions, or (ii) that the SaaS Software infringes or violates any patent in the Licensed Territory, or worldwide copyright or trade secret of a third party; provided however Murmuratto’s indemnification obligations shall not apply to the extent the claim arises out of (a) Customer’s use of the Solution in an unauthorized manner’ or (b) Customer Data.  In the event of an infringement claim for which Murmuratto is obligated to indemnify Customer, Murmuratto shall, at its option, to (x) procure for Customer the right to continue to use the infringing SaaS Software,  (y) provide Customer with a non-infringing substitute that would avoid the infringement claim, or (z) if the foregoing options are not commercially feasible, terminate the affected Order or the affected portion thereof and provide Customer with a  pro-rata refund of the unused prepaid fees paid for the affected Solution. 

4.2 Customer Indemnity Obligations. Customer shall defend, indemnify and hold Murmuratto and its Affiliates and their officers, directors and employees harmless from and against any and all claims, suits, actual damages, costs and expenses, including reasonable attorneys’ fees, brought against or suffered by such Murmuratto indemnified parties arising out of any third party claim or legal process (including a subpoena, order, deposition, interrogatories) and including a claim brought by a User arising out of  any claim that the Customer Data, or the transfer or use thereof in accordance with this Agreement, infringes or violates any third party Intellectual Property Rights, privacy right or Applicable Law.

4.3 Indemnity Process. The indemnifying party shall have the right to conduct and control the defense and settlement of any such claim for which it is obligated to provide indemnity hereunder; provided that the indemnified party shall have the right to participate in the defense at its own expense. The indemnified party shall give prompt notice of any claim for which indemnity is sought and shall reasonably cooperate in defending against such claim at the indemnifying party’s expense. 

4.4  Exclusive Remedy. This Section 4 sets forth Customer’s sole remedies and Murmuratto’s sole liability for any actual, threatened or alleged claims that the Solutions infringe, misappropriate or otherwise violate any third party Intellectual Property Rights.

5. Limitations on Liability; Remedies.

5.1 Limitations of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH BELOW IN THIS SECTION 5.1,  REGARDLESS OF THE THEORY OF LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE IN NO EVENT SHALL MURMURATTO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE PRO RATED TOTAL AMOUNT OF THE FEES PAID AND PAYABLE BY CUSTOMER TO MURMURATTO PURSUANT TO THE ORDER GIVING RISE TO THE CLAIM OVER A SIX (6) MONTHPERIOD.  NOTWITHSTANDING THE FOREGOING, MURMURATTO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO (I) BREACH OF ITS CONFIDENTIALITY, SECURITY, DATA PRIVACY AND/OR DATA PROTECTION OBLIGATIONS RELATING TO THE PROCESSING OF CUSTOMER DATA, WHETHER ARISING UNDER THIS AGREEMENT AND/OR ANY RELATED DATA PROTECTION, PRIVACY AND/OR SECURITY AGREEMENT OR REQUIREMENTS, REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION ANY INDEMNIFICATION OBLIGATIONS RELATING THERETO OR ANY CLAIMS FOR VIOLATION OF LAW RELATING THERETO (COLLECTIVELY AS “DATA CLAIMS”) AND/OR (II) ITS INDEMNITY RELATED OBLIGATIONS UNDER SECTION 5.1 OF THIS AGREEMENT, SHALL NOT EXCEED TWO (2X) TIMES THE TOTAL OF THE FEES PAID AND PAYABLE BY CUSTOMER PURSUANT TO THE ANNUALIZED TERM OF THE ORDER GIVING RISE TO THE CLAIM. 

5.2 Liability Exclusions.  EXCEPT FOR CLAIMS ARISING OUT OF (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY, SECURITY, DATA PRIVACY AND/OR DATA PROTECTION OBLIGATIONS UNDER THIS AGREEMENT OR A PARTY’S OBLIGATIONS UNDER ANY RELATED DATA PROTECTION, PRIVACY AND/OR SECURITY AGREEMENT INCLUDING ANY CLAIM FOR INDEMNIFICATION OR VIOLATION OF LAW RELATING THERETO; (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (III) CUSTOMER’S BREACH OR VIOLATION OF THE TERMS OF SECTION 1.3 (LICENSE RESTRICTIONS) HEREOF; OR (IV) CUSTOMER’S OBLIGATION TO PAY THE AGREED UPON FEES AS SET FORTH IN AN ORDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS, LOSS OF BUSINESS, OR LOSS OF OR DAMAGE TO SOFTWARE OR DATA) FOR ANY CLAIM RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THEREOF.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN THE EVENT THAT THE LICENSED ENTITIES INCLUDE END CLIENTS, MURMURATTO SHALL HAVE NO LIABILITY OF ANY KIND TO SUCH END CLIENTS AND/OR THEIR USERS.

6. Trademarks and Publicity.  Murmuratto will not use Customer’s name or logo publicly including in a client list, or in any promotional or marketing materials, except with Customer’s prior written approval (email is sufficient).  Customer may use Murmuratto trademarks and logos solely as approved by Murmuratto. Each party will comply with any trademark usage guidelines provided by the trademark owner.

7. Term & Termination; Suspension; Data Destruction.

7.1 Term of this Agreement. This Agreement shall remain in effect so long as an Order incorporating this Agreement is in effect, unless or until terminated by either party in accordance with the terms of this Agreement (the “Term”). 

7.2 Term & Termination of an Order for Breach.  Unless otherwise expressly agreed in an Order, an Order shall remain in effect for the term stated in the Order and is not to be subject to cancellation or termination except as expressly set forth herein. An individual Order may be terminated (in whole but not in part) by a party if the other party fails to cure a material breach of such Order, or of this Agreement as it relates to such Order, within thirty (30) days after receiving written notice of the breach from the non-breaching party.  

7.3 Suspension. Murmuratto reserves the right to suspend the provision of the Solutions, without terminating the Agreement, if any undisputed fees are not paid when due provided that Murmuratto provides 30 days’ notice of the default and the fees are not paid within such additional notice period.

7.4 Destruction of Customer Data.  Murmuratto will delete Customer Data within 30 days following termination of the Agreement or at any time upon Customer’s written request. The parties understand that it may be impractical to delete system archival data and that such data shall be stored in the ordinary course subject to the confidentiality obligations set forth in this Agreement.

7.5 Effects of Termination. Immediately upon the termination of an Order, (a) Murmuratto shall cease providing the Solutions, (b) upon request, each party shall promptly and securely destroy all of the Disclosing party’s Confidential Information and shall certify to such destruction, and (c) Customer shall pay all fees owing and payable under the Agreement provided that if Customer terminates an Order for cause pursuant to Section 7.2 hereof, Customer shall not owe any fees for Solutions not rendered and Customer is entitled to a pro-rata refund of the unused prepaid fees paid pursuant to the terminated Order.  All terms intended to survive termination shall survive such termination. 

8.      Confidentiality and Personal Information.

8.1 Confidentiality.  During the term of this Agreement and continuing after termination of this Agreement, each party shall retain in confidence, and not use except as expressly authorized in this Agreement, the Confidential Information disclosed or made available by a disclosing party, its Licensed Entities or their respective Representatives, whether disclosed in written, oral, electronic or visual form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation proprietary or non-public information relating to the disclosing party’s business, operations, finances, technologies, products and services, pricing, personnel, customer and suppliers and expressly includes without limitation (i) with regard to Customer, the Customer Data, and (ii) with regard to Murmuratto, the Murmuratto Property(“Confidential Information”).  The receiving party will use the same degree of care and discretion (but not less than reasonable care) to avoid disclosure or dissemination of the disclosing party’s Confidential Information as it uses with its own information of a similar nature.  Except as otherwise authorized in this Agreement or an Order, the receiving party will not disclose the Confidential Information of the disclosing party to a third party other than to its and its Affiliates and the Licensed Entities and their respective Representatives in connection with its performance of this Agreement and the receiving party shall be liable to the disclosing party for any violation of this Agreement by its Affiliates, Licensed Entities and/or their respective Representatives.  Confidential Information shall not include information that (a) is at the time of disclosure or subsequent to disclosure is publicly known or generally available in the public domain provided such availability did not result from a violation of the receiving party’s obligations hereunder, (b) is lawfully received from a third party not bound in a confidential relationship with the disclosing party, (c) is already rightfully known to the receiving party prior to receipt from the disclosing party, or (d) was or is generated independently without use of the disclosing party’s Confidential Information. 

8.2 Permitted Disclosures. The receiving party may disclose Confidential Information as required to comply with orders of governmental entities that have jurisdiction over it, in connection with legal proceedings or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable advance written notice to allow the disclosing party to seek a protective order or other appropriate remedy (except to the extent that compliance with the foregoing would cause it to violate an order of the governmental entity or other legal requirement), (ii) discloses only that portion of the Confidential Information as is required, and (iii) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed. 

8.3 Personal Information – Obligations, Consents and Notices.  Each party shall use Personal Information made available by or on behalf of the other party solely for the purpose of the performance of its obligations and the exercise of its rights as expressly provided for in this Agreement and/or an Order and solely in accordance with the instructions of the other party and in compliance with all Applicable Laws and the terms of any data processing agreement entered into between the parties as described in Section 8.4 hereof.  Customer is responsible for providing any applicable privacy notices and obtaining a legally valid and binding consent, permission, approval, and/or opt-in from all of its Users to (i) authorize the lawful collection, disclosure, use, processing, and transfer of the Customer Data (including Personal Information) for the duration and purposes of this Agreement including to authorize Murmuratto to use and process the Customer Data (including Personal Information) as necessary to provide the Solution for the purposes described in the Agreement; and (ii) if instructed by Customer, to authorize Murmuratto  to contact Customer Users for the purpose of providing the Solution.  Without limiting the foregoing obligations, as a supplemental measure, Murmuratto will provide a data privacy notice to Users when accessing the Murmuratto SaaS Software (via an electronic pop-up notice), and will require each such User to accept the terms of such notice. Such privacy notice will inform each such User that their Personal Information will be collected in connection with its use of the SaaS Software and will be used for the purposes of providing research insights to the project sponsor (as described generally in such notice).  It is Customer’s responsibility to disclose the identity of the project sponsor to the Users prior to or during the Conversation, to the extent Customer deems necessary under the Data Protection Laws. 

8.4 Data Processing Agreement.  If the parties enter into a data protection agreement (“DPA”), the limitations and exclusions of liability set forth in this Agreement shall apply to such DPA.

8.5 Data Security.  Each party shall establish and maintain administrative, physical and technical safeguards designed to guard against the destruction, loss, or alteration the other party’s Confidential Information and Personal Information. Without limiting the foregoing, the receiving party shall at all times in connection with this Agreement: (i) maintain and enforce an information security program including administrative, physical and technical security policies and procedures with respect to its processing of Confidential Information and Personal Information consistent with commercially reasonable industry practices and any standards mutually agreed upon by the parties in writing; (ii) provide technical and organizational safeguards designed to protect against accidental, unlawful or unauthorized access to, use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information and ensure a level of security appropriate to the risks presented by the processing of such information and the nature of such information; and (iii) take commercially reasonable measures to secure its information systems against “hackers” and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use the Confidential Information and Personal Information stored therein.

8.6 Ownership.   Murmuratto owns all right, title and interest to the Murmuratto Property and any protectable Intellectual Property Rights therein. Customer owns all right, title and interest to the Customer Data and any protectable Intellectual Property Rights therein. To the extent that any Customer Data created in the performance of the Solutions is subject to copyright protection, such Customer Data will be considered to be a “work made for hire” under the applicable copyright laws.  Murmuratto hereby expressly assigns to Customer all right, title and interest to the Customer Data including any Intellectual Property Rights based in whole or in part thereon where they may exist. Murmuratto agrees to provide reasonable cooperation and assistance, at Customer’s expense, to perfect Customer’s Intellectual Property Rights in Customer Data created as a work for hire.

8.7 Customer Data — License Grant to Murmuratto. Customer hereby grants Murmuratto a non-exclusive, royalty-free, worldwide right during the term of this Agreement to use, access, process, copy, store, transmit and transfer the Customer Data provided to Murmuratto solely for the purpose of providing the Solutions. Customer agrees that Murmuratto has the right to collect and create aggregated, anonymous usage data, performance data, statistical data and meta data derived regarding the Customer Data solely for the purpose of (i) monitoring, testing and improving the SaaS Software and (ii) creating comparative data and data insights relating to usage of the SaaS Software; provided in each case that such derived data cannot be used to identify or be linked to Customer or any entity or individual or reveal any identifiable Customer Data or be used to recreate any Customer Data (“Derived Data”). Murmuratto shall own all right, title and interest in such Derived Data.

8.8 Murmuratto Property – License Grant to Customer.  Murmuratto hereby grants Customer a non-exclusive, royalty-free, non-transferrable, non-sublicensable, worldwide, perpetual license to use, access, copy, and store any Murmuratto Property included in any deliverables provided in connection with the Professional Services solely for Customer’s business purposes in connection with Customer’s use of the Solutions. Murmuratto grants Customer the right to extend such license rights to the Licensed Entities and their Representatives subject to the terms provided for herein.

8.9 Reservation of Rights.  Notwithstanding anything herein to the contrary, provided that Murmuratto does not use or disclose Customer Confidential Information, Murmuratto shall be free to use, exploit and disclose its general skills, concepts, ideas, know-how, and expertise gained or learned during the course of the performance of this Agreement, and Murmuratto shall not be restricted from creating output for other customers similar to that provided to Customer.

9. Miscellaneous.

9.1 Insurance. Upon Customer’s request, Murmuratto shall furnish Customer with a certificate of insurance (“COI”) providing evidence of its insurance coverages. Murmuratto shall not reduce the level of insurance set forth in its COI in effect as of the Effective Date. Such insurance shall be carried with responsible insurance companies of recognized standing which are authorized to do business in the state in which the Solution is rendered and are rated A- or better by A.M. Best.  

9.2 Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.

9.3 Assignment and Related Matters. Neither party may assign this Agreement, or any of its rights or obligations hereunder (in whole or in part) except with the prior written consent of the other party; provided, however that either party shall have the right to assign this Agreement, without the other party’s consent, in whole (but not in part) to a successor in interest to the business of such party in connection with a merger, sale of substantially all of its assets, change of control or by operation of law, or to an Affiliate, provided that (i) the assignee agrees to assume the obligations under this Agreement and has adequate resources to meet its obligations hereunder; and (ii) the assignment shall not change the scope of work to be performed under any Order then in effect.  The terms of this Agreement shall be binding upon the permitted successors and assigns of each party. Murmuratto has the right to use Affiliates and subcontractors, in its discretion, with prior notice to Customer by posting the list as a link to its privacy policy.   Murmuratto may update its subcontractor list from time to time by providing 15 days prior email notice to Customer’s primary account users via the Solution Platform.  Customer shall have 15 days from the date of such notice to object on the grounds that such subcontractor is unable meet the data security or data protection obligations set forth in this Agreement, and if Murmuratto is unable to resolve such objection with a reasonable period of time, Customer will have the right to terminate the affected Order upon prior written notice to Murmuratto. If Customer does not object within 15 days from receipt of the initial notice regarding the intended use of a new subcontractor or the parties’ resolve Customer’s objection by mutual agreement, such subcontractor is deemed to be approved.  Murmuratto shall be responsible for the acts and omissions of its subcontractors to the same extent as Murmuratto would be responsible hereunder for its own acts and omissions. 

9.4 Force Majeure. If the performance of any obligation hereunder (excluding any payment obligation) is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, pandemic, power surges or failures, or the act or omission of any third party, the party shall be excused from such performance to the extent necessary, provided the party shall use reasonable efforts to remove such causes of nonperformance. 

9.5 Notices. Notices shall be submitted in writing to the address or email set forth in the Order.  Notices shall be sent either by (i) registered priority US mail or by priority delivery by a nationally recognized carrier with confirmation of delivery (in each case such notice deemed received upon delivery) or (ii) email (such notice deemed received 48 hours from being sent).  All notices sent to Murmuratto by mail or carrier must be also be copied to Murmuratto’s email address.

9.6 General. The terms and conditions of this Agreement supersede all previous agreements, proposals or representations related to the subject matter hereof. The terms of any confidentiality agreement entered into by the parties prior to the Effective Date hereof shall remain in effect with respect to any disclosures outside the scope of this Agreement, provided that this Agreement shall exclusively govern any disclosures in connection with this Agreement. Any waiver, amendment, or modification of any right or remedy, in whole or in part under this Agreement must be in a writing signed by both parties. Purchase Orders may be used to confirm authority to purchase; provided, however, the terms thereof shall not modify or add to the terms of this Agreement.  The terms of this Agreement takes priority over any conflicting terms in an Order, unless the Order expressly amends this Agreement. The exchange of a signature by electronic means shall be sufficient to bind the parties to this Agreement or to any Order.

10. Defined Terms.

Affiliate” means any entity controlled by, controlling, or under common control with a party to this Agreement during the period such control exists. For the purposes hereof “control” means the power to direct the operation, policies and management of an entity through the ownership of more than fifty percent (50%) of the voting securities of such entity, by contract, or otherwise.

 “Applicable Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree of any government or political subdivision thereof or regulatory authority, or any arbitrator, court or tribunal of competent jurisdiction including any applicable Data Protection Laws.

Confidential Information” has the meaning set forth in Section 8.1 of the Agreement.

Customer Data” means all data, information and media including without limitation any Personal Information, that is (i) provided or made available by or on behalf of Customer and/or the Licensed Entity or their respective Representatives, directly or indirectly, to Murmuratto or otherwise input into the SaaS Software by or on behalf of Customer and/or the Licensed Entities or their respective Representatives and (ii) any feedback, findings, reports and/or analysis to the extent derived from the Customer Data, but excluding the Derived Data as defined below.

Data Protection Laws” means any data privacy or data protection laws under any Applicable Law applicable to a party’s performance under this Agreement, including without limitation (i) the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, including as implemented or adopted under the laws of the UK, as amended from time to time and in each case as amended, replaced or superseded from time to time (the “GDPR”, and collectively with the foregoing “EU Data Protection Laws”) , and (ii) California Consumer Privacy Act (the “CCPA”), including the California Privacy Rights Act (“CPRA”); the Colorado Privacy Act (“CPA”); the Virginia Consumer Data Protection Act (“VCDPA”); the Connecticut Data Privacy Act (“CDPA”); the Utah Consumer Privacy Act (“UCPA”); and any corresponding or similar United States state or federal laws or regulations relating to the use or protection of data including any amendment, update, modification to, or re-enactment of such laws (“US Data Protection Laws”).  Terms used in this Agreement that are defined in the Data Protection Laws shall have the meaning assigned to them in the applicable Data Protection Laws.

Derived Data” has the meaning set forth in Section 8.6 of the Agreement.

Documentation” means technical, user documentation, specifications and training materials provided by Murmuratto in connection with the Solution describing its use and functionality.

End Client(s)” means a third party that is an end client of Customer or its Affiliate to which Customer or its Affiliate provide their own services.

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Licensed Entity” means the legal entity(ies) and/or specific business groups of Customer and/or its Affiliates authorized to use the Solution as specified in the applicable Order.  Only if expressly stated in an Order, Customer and/or its Affiliates (as Licensed Entities) may use the Solution to provide a managed service to their End Clients, and in such case, the End Clients are deemed to be Licensed Entities to the extent specified in Section 1.2 of this Agreement. 

Licensed Territory” means the geographic territory identified in the Order.

Murmuratto Property” means any technical information, solution content, techniques, ideas, methods, processes, software, interfaces, utilities, data, data templates or files, dashboard, question formats and pairings, databases or libraries, documents, directories, designs, know-how, intellectual property, information or materials of any kind (regardless of form) which has been or is acquired, created, developed or licensed by Murmuratto prior to or outside the scope of this Agreement and any improvement, modification or other derivative works thereof and all protectable Intellectual Property Rights therein; and expressly includes, without limitation, (i) the Solutions and Documentation, (ii) template libraries; and (iii) Derived Data.

Order” means an order form and/or statement of work referencing this Agreement, which has been mutually agreed to by the parties either (i) in a mutually signed writing, (ii) via electronic acceptance on the SaaS Platform, or (iii) by a Customer issued purchase order expressly referencing a Murmuratto issued Order, provided such purchase order shall only confirm authority to purchase and shall not otherwise form a part of this Agreement. If Customer purchases the Solutions through an authorized Murmuratto partner or reseller, the term Order as used herein shall refer to the order entered into between Murmuratto and such partner or reseller for resale to Customer.

Personal Information” means information that identifies or could be used to identify an individual and expressly includes ‘Personal Information’ or ‘Personal Data’ as such terms are defined in any Data Protection Laws.  As used herein, the Personal Information of a party to this Agreement, means Personal Information provided or made available by or on behalf of such party or its Licensed Entities.

Professional Services” means professional services provided by Murmuratto as described in an Order which may include  (i) training services, and (ii) other consulting services in the form of reports or guidance relating to Customer’s usage of the use of the SaaS Software. 

Representatives” means the employees, contractors, consultants, subcontractors and/or advisors of a party and/or its Affiliates.

SaaS Software” means the proprietary Murmuratto SaaS software (including the SaaS Platform, the dashboard and any data or content forming a party of the software but excluding Customer Data) designed to manage opportunities; and the software tools, dashboards and analytics embodied therein, including any third-party software embedded therein; and any Updates and related support services; but excluding the Professional Services.

SaaS Platform” means any Murmuratto owned or licensed software, hardware or systems which form a part of the computer platform owned or controlled by Murmuratto which is used by Murmuratto to host the SaaS Software.

Solution(s)” means the SaaS Software and the Professional Services.

Updates” means any updates, releases, bug fixes, error corrections or new versions to the SaaS Software made generally available by Murmuratto from time to time in its sole discretion as part of such SaaS Software.  Updates do not include new solutions, functionality or modules sold separately as new solutions.

User” means an employee or independent contractor of a Licensed Entity, who is a resident of the Licensed Territory and who is authorized pursuant to the terms of this Agreement and an Order to use the SaaS Software for the licensed use as set forth in this Agreement.   The number of authorized Users will be specified in the applicable Order.