As of October 1, 2023

BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY AND REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERM “CUSTOMER,” AS FURTHER DEFINED BELOW, WILL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT USE TRUSTRADIUS SERVICES.

SUBSCRIPTION AGREEMENT

1. DEFINITIONS

“Agreement” means this Subscription Agreement, each Order Form entered into hereunder and any and all referenced and incorporated exhibits.

“Authorized Users” means either the unlimited number of Customer’s employees and independent contractors whom Customer has permitted to use Customer’s subscription to the TrustRadius Services on behalf of Customer, or the limited number of seats ordered by Customer for users of TrustQuotes for Salesforce, as applicable.

“Base Subscription Fee(s)” means the total fees for a given Subscription Period for any TrustRadius product or service without any type of discount applied.

“Customer Content” means any information, materials, names, trademarks, service marks, logos, text, images, videos, marketing materials, product or service information, customer information, email addresses or other content that Customer or an Authorized User provides to TrustRadius or that Customer or an Authorized User uploads or posts to the Site.

“Customer Products” means any Customer product(s) specified on the Order Form for which Customer is subscribing to TrustRadius Services.

“Documentation” means any documentation made available to Customer, in any form, by TrustRadius for use with the TrustRadius Services.

“Excerpts” means portions of one or more Published Reviews.

“Initial Subscription Period” means the initial term of an Order Form.

“Order Form” means the form by which Customer orders TrustRadius Services. Each Order Form is deemed a part of, and is incorporated by reference into, this Agreement.

“Order Form Effective Date” means the effective date of the Order Form, as specified on the Order Form, or if not so specified, the latest signature date on the Order Form.

“Published Review” means a Submitted Review that has been published to the Site by TrustRadius.

“Rating” means a numerical rating for a Customer Product submitted to the Site by a Reviewer.

“Reviewer” means a User who has submitted a Rating or a Submitted Review via the Site.

“Renewal Subscription Period” means the additional period of time which the Parties may agree to renew the Order Form and commencing on the day immediately following the expiration of the previous Subscription Period.

“Site” means the website located at www.trustradius.com, as well as associated TrustRadius sites linked to such website.

“Subscription Period” means the contractually authorized subscription period for TrustRadius Services, as set forth on the Order Form for such TrustRadius Services, subject to any renewal or extension as provided in this Agreement.

“Submitted Review” means a written review submitted to the Site by a Reviewer for one of the Customer Products.

“TrustQuotes for Web Excerpt” means an Excerpt that is displayed on a Licensed Webpage, as defined in Section 2.3 below, through TrustQuotes for Web Widget Software by means of an active TrustQuotes for Web Widget offering.

“TrustQuotes for Web Widget Software” means the software component of the TrustQuotes for Web Widget offering as defined in the program descriptions.

“TrustRadius Services” means the TrustRadius programs as ordered by Customer pursuant to an Order Form.

“User” means an end user of the Customer Products.

“Vendor Portal” means a user interface that allows Customer to edit the Customer Product’s listing on the Site and to control features of the TrustRadius Services.

2. TRUSTRADIUS SERVICES

2.1 Grant of Access to TrustRadius Services. From time to time, TrustRadius and Customer may enter into Order Forms for TrustRadius Services. Subject to the terms and conditions of this Agreement, TrustRadius hereby grants to Customer a personal, non-exclusive, limited, non-sublicensable, non-transferable (except as provided in Section 11.10) right to access and use the Vendor Portal and the TrustRadius Services ordered by Customer through an Order Form, solely during the applicable Subscription Period.

2.2 Submitted Reviews and Ratings; Excerpts. TrustRadius and the Reviewers retain and reserve all right, title and interest in and to all Submitted Reviews and Ratings including, without limitation, any intellectual property rights worldwide therein. Subject to this Agreement and only during the Subscription Period, TrustRadius grants Customer a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable (except as provided in Section 11.10) right to use, translate (only if the original Excerpt of Published Review is available in its original language via a web link), create derivative works, copy, publish, display, reproduce, and distribute Excerpts of Published Reviews for the applicable Customer Product. Customer will ensure that for each Excerpt it reproduces and distributes, it does so in compliance with the applicable Reviewer’s then-current privacy choices as to the Reviewer’s identification and the Excerpt, as shown in the TrustRadius Services. Customer acknowledges that Published Reviews are dynamic, and their content and licensing rights (including privacy choices) can be modified at any time by the Reviewers. If TrustRadius notifies Customer of any restrictions or limitations on the use of a Published Review or Excerpt, or of changes in content, Customer will immediately comply with such restrictions and limitations and make appropriate content adjustments or take down any Excerpts that fail to comply with such restrictions, limitations or changes if such Excerpts are within Customer’s reasonable control. Each Excerpt used by Customer pursuant to the rights set forth in this Section 2.2 must be representative of the overall tone and sentiment of the Published Review from which it was derived, reference the fact that the Published Review from which it was derived is published on the Site, and, if displayed on a website, include a link back to the Published Review from which it was derived on the Site (such link will not be coded in HTML as a “nofollow” link).

2.3 License to the TrustQuotes for Web Widget Software.  Subject to Section 2.1, Customer may install, copy, embed, and use the TrustQuotes for Web Widget Software in Customer-owned webpages that include the Customer Products specified in the applicable Order Form (each, a “Licensed Webpage”) and receive TrustQuotes for Web Excerpts via the TrustQuotes for Web Widget Software and display these TrustQuotes for Web Excerpts on the Licensed Webpages.

2.4 Program Incentives.  TrustRadius may offer incentives to Users in order to increase the submission of new reviews and updates to existing reviews (“Program Incentives”). If TrustRadius offers Program Incentives, it will do so in compliance with Federal Trade Commission (“FTC”) regulations and all other applicable laws, rules and regulations (collectively, “Applicable Law”), and it will track and fulfill such Program Incentives. If Customer offers its own Program Incentives to Users then Customer must comply with Applicable Law and Customer must notify TrustRadius at the time the User submits a Submitted Review that the User received or was promised Program Incentives from the Customer, in which case TrustRadius will disclose the existence of such incentive in the Published Review. If Users or Customer do not notify TrustRadius of the Program Incentives from Customer, Customer is solely responsible and liable for any violation of Applicable Law resulting from such Program Incentives. If the amount of the Program Incentives exceeds the amount listed on the Order Form (“Overage Amount“) then the Customer will be invoiced for the Overage Amount. Program Incentives expire at the end of the Subscription Term and will not carry over to any Renewal Term.

2.5  Restrictions on Use. Except as expressly agreed herein or to the extent any such restriction is expressly prohibited by Applicable Law, Customer agrees that it shall not and shall not permit any third party to (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code, object code, algorithms, or other trade secrets from any of the software comprising or in any way making up a part of the TrustRadius Services; (ii) modify, adapt, translate or otherwise create derivative works of the TrustRadius IP; (iii) rent, lease, sell, assign, license, sublicense, distribute or otherwise transfer rights in or to the TrustRadius IP or include the TrustRadius Services or any component thereof in a service bureau or outsourcing offering; (iv) remove any proprietary notices or labels from the TrustRadius IP; (v) use the TrustRadius Services in any way or on any website that disparages TrustRadius or its products or services or infringes any TrustRadius intellectual property or other rights; (vi) intentionally use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Site or the TrustRadius Services; (vii) make the TrustRadius Services available to, or use the TrustRadius Services for the benefit of, anyone other than Customer or the Authorized Users; or (viii) use the TrustRadius IP in any manner that implies partnership with, affiliation with, sponsorship, or endorsement by TrustRadius.  Customer will comply with all Applicable Law in Customer’s use of and access to the TrustRadius IP.

2.6 License to Customer Content.   Customer hereby grants to TrustRadius a non-exclusive, worldwide, royalty-free, fully paid-up license to use, publicly perform, publicly display, modify, prepare derivative works of, reproduce, make, have made, import and otherwise exploit the Customer Content during the Subscription Period as reasonably required for the performance of TrustRadius’ obligations hereunder and in connection with the TrustRadius Services, subject to TrustRadius’ confidentiality obligations with respect to any Customer Content that constitutes Customer’s Confidential Information (as defined below).

2.7 Customer Responsibilities. Customer will (a) provide TrustRadius access to Customer’s personnel as reasonably required by TrustRadius to perform the TrustRadius Services; (b) reasonably cooperate with TrustRadius in performance of the TrustRadius Services; and (c) if a Published Review includes a disclosure about the Reviewer that could reasonably impact a reader’s opinion of the trustworthiness of the review, or if Customer is aware of facts that would require such a disclosure under Applicable Law (such as a disclosure that the Reviewer is employed by Customer), Customer must either (i) include such disclosure in any Excerpt of such Published Review or (ii) make such disclosure in a manner reasonably calculated to be seen and understood by a reader of such Excerpt (collectively, “Customer Responsibilities”). Customer acknowledges that TrustRadius’ performance hereunder is dependent on Customer’s timely, accurate, and effective performance of all Customer Responsibilities.

2.8 Single Sign-On. If Customer purchases and TrustRadius enables  single sign-on (“SSO”), then Customer  is authorizing its users to access and use the TrustRadius Services directly from a third-party service. Such third-party service may not have the same authentication and security features as the TrustRadius Services. Customer assumes all risk and responsibility arising from the use of, and access to and from, the  TrustRadius Services enabled through SSO. Further, use of SSO requires the Customer to ensure that each username/identification and password (“User Credentials”) is protected in accordance with all reasonable security standards and safeguards. Customer shall take all steps to ensure only authorized access to TrustRadius’ websites and other services accessed using the User Credentials. Should unauthorized access to TrustRadius’ websites or other services occur through the negligent, willful or otherwise unlawful disclosure or use of the User Credentials, Customer shall indemnify TrustRadius against any losses, damage or hacking to TrustRadius systems, website, or business caused by such disclosure or use.

2.9 Premium Content. Subject to this Agreement and only during the Subscription Period, if the Customer purchases access to Premium Content (“Premium Content” which means one or more of the following services Customer Story, Shareable Quotes, Competitive Report, Market Report) then TrustRadius grants Customer a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable (except as provided in Section 11.10) right to use, copy, publish, display, reproduce, and distribute the Premium Content or excerpts of the same.

2.10 Premium Content License Restrictions. The license granted in Section 2.9 is subject to the following:
(a) The Customer shall not edit, alter, modify, combine with other content, or create any derivative works of the Premium Content.

(b) The Customer shall not display and shall not permit others to display the Premium Content with any images or content that is or could be reasonably construed to be offensive, pornographic, defamatory, or libelous, infringing the intellectual property rights of any third party, promoting terrorism or other unlawful violence, or for any other purpose that violates Applicable Law.

(c) The Customer shall not translate the Premium Content.

(d) All uses of the Premium Content that do not comply fully with the provisions of Sections 2.9 and 2.10 shall for all purposes be deemed beyond the scope of the license granted hereunder. Any violation of Sections 2.9 and 2.10 by the Customer shall be a material breach of this Agreement for which TrustRadius may terminate this Agreement for cause.

3. CONFIDENTIALITY

3.1 Confidentiality Obligations. “Confidential Information” means all written or oral information disclosed by the Disclosing Party to the Receiving Party under this Agreement that is identified as confidential at the time of disclosure or that should be reasonably understood by the Receiving Party to be confidential by the nature of the information or the circumstances of its disclosure. The Party making its Confidential Information available is the “Disclosing Party” and the Party receiving such Confidential Information is the “Receiving Party”. Both Parties agree that as between the Disclosing Party and the Receiving Party, all items of Confidential Information are proprietary to the Disclosing Party and will remain the property of the Disclosing Party. Except as necessary for a Party to perform its obligations or exercise its rights under this Agreement, the Receiving Party agrees as follows: (i) to use Confidential Information only to exercise its rights or fulfill its obligations described herein; (ii) to not reproduce Confidential Information; (iii) to protect Confidential Information in the same manner that it uses to protect its own Confidential Information of a like kind, but in no event less than reasonable care; (iv) to implement safeguards to prevent disclosure of Confidential Information to individuals or third parties, except its employees, agents, and consultants who have a need to know such information to assist such Party in performing its obligations under this Agreement, but only to the extent that such employees, agents, and consultants are bound by confidentiality obligations substantially the same as those in this Agreement; and (v) to return or destroy all Confidential Information that is in its possession within a reasonable time after termination of this Agreement.

3.2 Confidentiality Exceptions. Confidential Information will not include information that (i) is publicly available or in the public domain through no fault of the Receiving Party; (ii) is rightfully communicated to the Receiving Party without an obligation of confidentiality by persons not known by the Receiving Party to be bound by confidentiality obligations; (iii) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the Receiving Party; or (v) is approved for release or disclosure by the Disclosing Party without restriction.  Notwithstanding the foregoing, in the event that the Receiving Party is requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any Confidential Information, the Receiving Party will provide (to the extent legally permissible and reasonably practicable) the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement.  In the event that such protective order or other remedy is not obtained, or compliance with the provisions of this Agreement is waived, the Receiving Party will disclose only that portion of the Confidential Information that is legally required, based on the advice of Receiving Party’s counsel, and will exercise reasonable efforts at the Disclosing Party’s sole cost and expense to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

3.3. Injunctive Relief.  The Parties agree that the Disclosing Party would be irreparably injured by a breach or threatened breach of Section 3 by the Receiving Party and that the Disclosing Party would not have an adequate remedy at law.  Therefore, in the event of a breach or threatened breach by the Receiving Party of Section 3, the Disclosing Party will be entitled, in addition to any and all other remedies, to seek injunctive relief and specific performance, without proving actual damages. The Receiving Party further agrees not to resist such application for relief on the basis that the Disclosing Party has an adequate remedy at law and agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

4. ACCESS AND SECURITY

4.1 Customer Credentials.  For any TrustRadius Service for which TrustRadius makes available  passwords or other user identification technology (“Credentials”) to access such service(s), Customer agrees to safeguard any usernames and passwords provided to Authorized Users to access the TrustRadius Services.  Further, Customer will advise all Authorized User(s) of such Credentials that such Credentials must be maintained in confidence and not transmitted or shared. Customer is solely responsible for maintaining the confidentiality of each username and password used and is solely responsible for any and all activities that occur under all Customer accounts. Customer agrees to notify TrustRadius immediately of any unauthorized use of, or other breach of security involving, Customer’s accounts for TrustRadius Services. TrustRadius  will not be liable for any loss that Customer may incur as a result of unauthorized use or disclosure of Customer’s Credentials or accounts.

4.2 Data Privacy.  The Parties hereby agree to the terms of the attached Data Protection Addendum (the “DPA”), if applicable, which terms are incorporated into this Agreement by reference.

4.3 Suspension of TrustRadius Services. TrustRadius may suspend Customer’s access to any portion or all of the Site or the TrustRadius Services if TrustRadius reasonably determines that: (a) an objective security threat arises so great as to warrant immediate action by TrustRadius to protect the security of Customer Content, content of other TrustRadius customers and/or TrustRadius Services or systems, (b) there is an attack or threat of attack on the Site or TrustRadius Services (including a denial of service attack) that necessitates such suspension; (c) Customer’s use of the TrustRadius Services disrupts or poses a security risk to TrustRadius or any other user of the TrustRadius Services, may harm TrustRadius’ systems, or may subject TrustRadius or any third party to liability; (d) Customer is using the TrustRadius Services for fraudulent or illegal activities; (e) Customer is in breach or violation of this Agreement or Applicable Law; or (f) Customer is in default of its payment obligations hereunder (“Suspension”). TrustRadius will use good faith efforts to provide advance notice of Suspension (unless prohibited from doing so due to the emergent nature of the basis for Suspension, and in such event shall provide notice as soon as reasonably practical thereafter).  Notwithstanding the foregoing, if a Suspension is due to Customer’s default of its payment terms, TrustRadius shall first provide a Customer with a notice of default and allow Customer to cure within fifteen (15) days from the date of the notice of default before Suspension.  TrustRadius will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Suspension.

5. PAYMENT AND TAXES Customer will pay amounts due to TrustRadius under each Order Form, using one of the payment methods TrustRadius supports within the time period specified on the applicable Order Form, without setoff or counterclaim, and without any deduction or withholding.  Amounts paid hereunder are non-refundable except as expressly set forth in the Agreement.  Customer is responsible for providing complete and accurate billing and contact information to TrustRadius and promptly notifying TrustRadius of any changes to such information. Any unpaid and undisputed fees will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower until paid, plus all expenses of collection. All amounts payable by Customer to TrustRadius are exclusive of any sales, use, excise and other taxes, as well as export and import fees, customs duties, and similar charges, if any, that TrustRadius is obligated to collect, except for taxes based on TrustRadius’ net income.  All such taxes are the responsibility of Customer.

6. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK

6.1 TrustRadius Services.  Customer acknowledges and agrees that TrustRadius (or its suppliers or licensors) retains all right, title and interest in and to the TrustRadius Services, the Documentation, the Excerpts, Published Reviews, Submitted Reviews, the Site, TrustQuotes for Web Excerpts, TrustQuotes for Web Widget Software and the Vendor Portal, and all associated materials and intellectual property (collectively, the “TrustRadius IP”), and that the TrustRadius IP is protected by intellectual property rights owned by or licensed to TrustRadius. Other than as expressly set forth in this Agreement or an Order Form, no licenses, subscriptions or other rights in the TrustRadius IP are granted to Customer.

6.2  Trademarks. The TrustRadius name, logo, other TrustRadius owned brands, and registered marks, product names associated with the TrustRadius Services(s) and any other marks, logos, designs, sound, trade dress, etc. are trademarks of TrustRadius, and no right or license is granted by this Agreement to their use.

6.3  Customer Content.  Other than as expressly set forth in this Agreement, Customer retains all right, title and interest in and to the Customer Content.  Customer will not provide, post or transmit any Customer Content that (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation, (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information or (c) is deceptive, defamatory, obscene, pornographic or otherwise unlawful. Customer will obtain and at all times maintain any licenses, consents, or other approvals that are legally required for the uses and disclosures of Customer Content that Customer requests TrustRadius to undertake.

6.4  Feedback.  If Customer provides Feedback, Customer grants to TrustRadius a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use or incorporate into the TrustRadius Services the Feedback, without any attribution or compensation to Customer, for any purpose whatsoever. “Feedback” means recommendations, suggestions, enhancement requests or other feedback or any ideas or other information related to the features, functionality or operation of the TrustRadius Services, or any services or products provided by TrustRadius.

7. TERM AND TERMINATION 

7.1 Term.  The term of this Agreement will continue until termination of all Order Forms, unless earlier terminated as  set forth herein.  The term of each Order Form will begin on the Order Form Effective Date and continue for the duration of the Subscription Period. The Initial Subscription Period and any and all Renewal Periods for an Order Form are herein referred to as the “Subscription Period” for such Order Form.

7.2 Termination. Either Party will have the right to terminate this Agreement or any Order Form immediately (a) in the event the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice describing such breach in reasonable detail; or (b) if the other party files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business;.  Notwithstanding the foreoing, TrustRadius will have the right to terminate this Agreement immediately upon written notice in the event that Customer breaches any of its obligations under Section 2.5 (Restrictions on Use) or Section 3 (Confidentiality). Customer further acknowledges that its breach of the provisions of Sections 2.5 or 3 could result in irreparable injury to TrustRadius, and in such event TrustRadius will have the right to seek equitable relief against any actual or threatened breach thereof, without proving actual damages or obligation to post bond.

7.3 Effect of Termination.  Upon termination of this Agreement, each Party will (i) immediately discontinue all use of the other Party’s Confidential Information and intellectual property (expressly including the TrustRadius Services) including Customer Content; (ii) promptly delete the other Party’s Confidential Information including Customer Content from its computer storage or any other media; (iii) return to the other Party or destroy (with written certification), all copies of such other Party’s Confidential Information then in its possession; and (iv) pay all amounts due and remaining payable hereunder in accordance with the payment terms in the applicable Order Form. Termination of this Agreement or any Order Form will not relieve Customer of the obligation to pay any amounts payable thereunder to TrustRadius, nor will it require the refund of any amounts paid by Customer.  Upon any termination by TrustRadius pursuant to Section 7.2 above, Customer shall pay TrustRadius in full for all the Total Base Subscription Fees due under any terminated Order Form(s) for the entire Subscription Period.

8. WARRANTY; DISCLAIMER

8.1 Representations and Warranties.  Each Party represents and warrants that (a) it will not engage in any illegal or fraudulent business practices in connection with its use or provision of the TrustRadius Services; (b) it has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of it hereunder; (c) it is duly organized and a validly existing entity, in good standing under the laws of the jurisdiction in which it was formed, and that it has the right and capacity to enter into this Agreement; (d) there are no outstanding obligations or agreements that conflict with this Agreement; and (e) its representative executing this Agreement, has been duly authorized to bind such Party and constitutes a valid and legally binding obligation on each Party that is enforceable in accordance with the terms of this Agreement).

8.2 Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE DPA, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE TrustRadius SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) TrustRadius AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, TrustRadius DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE TrustRadius SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION OR ERROR FREE, OR WILL RESULT IN ANY PARTICULAR LEVEL OF SALES FOR CUSTOMER. CUSTOMER AGREES THAT THE USE OF TRUSTRADIUS SERVICES IS AT CUSTOMER’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRUSTRADIUS OR A TRUSTRADIUS REPRESENTATIVE WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY.

9. INDEMNITY

9.1 By TrustRadius.  Subject to the exclusions and limitations below, TrustRadius will defend Customer and its officers, directors, employees, and agents harmless from and against any third-party claim  (“Claim”) (a) alleging that the TrustRadius Services infringe the intellectual property or other rights of any third party, or (b) resulting from any violation of Applicable Law by TrustRadius.  TrustRadius will also indemnify and hold Customer harmless from and against any and all costs, damages, liabilities and expenses, including reasonable attorneys’ fees, that may be awarded in connection with or agreed by TrustRadius in settlement of any such Claim.  Notwithstanding the above, TrustRadius will have no obligation to indemnify or defend for the TrustRadius Services infringing the intellectual property or other rights of any third party if such infringement results from or is based upon (i) a combination of the TrustRadius Services with other materials not provided by TrustRadius,  (ii) specifications or modifications suggested by or made by Customer,  (iii) failure to use updated TrustRadius Services if provided by TrustRadius to Customer, (iv) any use of the TrustRadius Services in a manner not contemplated by this Agreement or by TrustRadius, (v) use of TrustRadius Services in violation of any agreement between Customer and the third party, or (vi) any content provided by Customer or a third party. If Customer’s right to use any TrustRadius Service is enjoined, or, in TrustRadius’ determination, likely be enjoined or otherwise infringing, TrustRadius may at TrustRadius’ option and expense (1) procure for Customer the right to use the TrustRadius Service, (2) replace or modify the TrustRadius Service so that they are no longer infringing but continue to provide comparable functionality or (3) terminate Customer’s access to the TrustRadius Service and provide a refund of the amounts paid by Customer for the TrustRadius Service that is the subject of the infringement or potential infringement, reduced by a pro rata amount based on the period of use of the TrustRadius Service. This Section 9.1 sets forth the entire obligation of TrustRadius and Customer’s exclusive remedy against TrustRadius for any claim that the TrustRadius Service infringes a third party’s intellectual property rights.

9.2 By Customer. Customer will indemnify, defend and hold TrustRadius and its officers, directors, employees, and agents harmless from and against any costs, damages, liabilities and expenses, including reasonable attorneys’ fees, due to any third-party Claim relating to (a) any Customer Content, (b) Customer’s use of the TrustRadius Services other than as expressly permitted under this Agreement, (c) Customer’s products or services including, without limitation, the Customer Products, (d) any Program Incentives offered by Customer unless the Claim is due to TrustRadius’ failure to meet its obligations in Section 2.4, (e) any breach of this Agreement by Customer or (f) any violation of Applicable Law by Customer. Customer will also indemnify and hold TrustRadius harmless from and against any and all costs, damages, liabilities and expenses, including reasonable attorneys’ fees, that may be awarded in connection with or agreed by Customer in settlement of any such Claim.

9.3 Procedure.   Any Party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other Party (the “Indemnifying Party”) of any Claim for which it is seeking an indemnity hereunder, (b) give the Indemnifying Party the sole control over the defense of such Claim, (c) furnish the Indemnifying Party with reasonable assistance in the defense of any such claim, so long as the Indemnifying Party pays the Indemnified Party’s reasonable out-of-pocket expenses , and (d) not admit liability or otherwise prejudicing the defense of the claim.  The Indemnifying Party will not consent to any settlement or compromise of, or the entry of any judgment with respect to, any indemnified claim that involves any monetary payment by Indemnified Party or admission of liability by the Indemnified Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.

10. LIMITATION OF LIABILITY

10.1 SUBJECT TO THE EXCEPTIONS SET FORTH IN SECTION 10.2, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, AND INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.

10.2 Exclusions from Limitation on Liability.  The limitations on liability in Section 10.1 will not apply to any Customer payment obligations, misappropriation of the other Party’s intellectual property, a breach of a Party’s confidentiality obligations under Section 3, a breach of the DPA (if applicable), liability arising from a Party’s indemnification obligations under Section 9, or liability arising from a Party’s fraudulent conduct or violation of Applicable Law.

11. GENERAL PROVISIONS 

11.1 Right to Subcontract.  Customer agrees that TrustRadius may subcontract certain aspects of the TrustRadius Services  to qualified third parties; provided that any such subcontracting arrangement will not relieve TrustRadius of any of its obligations hereunder.

11.2 Applicable Law.  This Agreement, and all claims or causes of action (whether in contract, tort or statute) relating to this Agreement and the TrustRadius Services will be governed by, and enforced in accordance with, the internal laws of the State of Delaware.

11.3 Independent Contractors. The relationship between the Parties is that of independent contractors, and no agency, partnership, joint venture, or employment is created as a result of this Agreement.

11.4 Force Majeure.  Neither Party will have liability to the other Party under this Agreement for delay or failure in performing its obligations under this Agreement, by acts, events, omissions or accidents beyond its reasonable control and without such party’s fault or negligence, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service, transport or telecommunications network or other third party service, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that the other Party is notified of such an event and its expected duration. This provision shall not apply to payment obligations hereunder.

11.5 Counterparts; Execution.  This Agreement may be executed in one or more counterparts. Each counterpart is an original. All counterparts together form one document. The Parties agree that an electronic or facsimile signature may substitute for and have the same legal effect as the original signature.

11.6 Section Numbers and Headings.  Except when the context clearly indicates otherwise, each section number reference will be deemed to be a reference to a section in this Agreement.  The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.

11.7 Entire Agreement.  This Agreement, sets forth the entire understanding between the Parties related to its subject matter and supersedes all prior oral and written understandings between the Parties related thereto.  Only a writing signed by both Parties may modify this Agreement. Neither Party will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement, and each Party disclaims reliance on any representation or communication by the other Party that is not expressly stated in this Agreement.  In the event of a conflict between an Order Form and any other terms of this Agreement, the terms of the Order Form will govern.

11.8 Severability and Waiver.  In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing.

11.9 Survival.  Sections 3,  4.3, 5 ,6, 7.4 and 8-11, and the DPA will survive any termination of this Agreement.

11.10 Assignment. Neither TrustRadius nor Customer may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that TrustRadius may assign its rights and obligations under this Agreement without the consent of the Customer in the event TrustRadius hereafter effects a corporate reorganization, consolidation, or merger, or upon the sale or transfers of its assets or similar transaction. This Agreement will inure to the benefit of and be binding upon the Parties, their respective successors, executors, administrators, heirs and permitted assignees. Any purported assignment of rights in violation of this Section 11.10 is void.

11.11 Notice.  All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to Customer at the legal notice address set forth on the Order Form; if to TrustRadius, at: Chief Financial Officer, T-Radius Holdings, Inc., 5114 Balcones Woods Dr., Suite 307-322, Austin, TX 78759; or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.

11.12  Amendment. This Agreement may only be amended or modified by a writing specifically referencing the particular section(s) of this Agreement to be modified and signed by authorized representatives of the Parties.

11.13 Time to Bring Action. To the extent allowed under applicable law, Customer may bring no action arising out of this Agreement, regardless of form, more than two (2) years after the cause of action has arisen.

11.14 Attorneys’ Fees. In the event of any dispute arising out of or related to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees and costs relating thereto.