SQUIRREL SERVICES AGREEMENT

Squirrel Services Agreement

Last Modified: October 26, 2024

This Squirrel Services Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Compensation Tool Corporation (“CT,” “we,” or “us”). This Agreement governs your access to and use of the Squirrel Services.

THIS AGREEMENT TAKES EFFECT (1) WHEN YOU CLICK THE CHECK BOX ADJACENT TO THE STATEMENT “I HAVE READ AND AGREE TO THE TERMS OF SERVICE AND PRIVACY POLICY” ON THE SQUIRREL SERVICES SIGN-UP PAGE OR (2) BY ACCESSING OR USING THE SQUIRREL SERVICES (the “Effective Date”). BY CLICKING THE CHECK BOX ON THE SQUIRREL SERVICES SIGN-UP PAGE OR BY ACCESSING OR USING THE SQUIRREL SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SQUIRREL SERVICES.

1.              Definitions. 

(a)           “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Squirrel Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Squirrel Services has been purchased hereunder.

(b)           “CT IP” means the Squirrel Services and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, CT IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Squirrel Services.

(c)            “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Squirrel Services.

2.              Access and Use.

(a)           Provision of Access. Subject to and conditioned upon your payment of all Fees (defined below) and compliance with all other terms and conditions of this Agreement, CT hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the services that are detailed on CT’s website available at https://comptool.com/squirrel (the “Squirrel Services”) during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein.  

(b)            Use Restrictions. You shall not, and shall not permit any Authorized User or any other person or entity to, use the Squirrel Services or any component thereof for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized User or any other person or entity to: (i) copy, modify, or create derivative works of the Squirrel Services, or any component of the Squirrel Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Squirrel Services except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Squirrel Services, in whole or in part; (iv) remove any proprietary notices from the Squirrel Services; or (v) use the Squirrel Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.

(c)             Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, CT may monitor Customer’s use of the Squirrel Services and collect and compile data and information related to Customer’s use of the Squirrel Services to be used by CT in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Squirrel Services (“Aggregated Statistics”). As between CT and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by CT. You acknowledge that CT may compile Aggregated Statistics based on data input by Customer into the Squirrel Services. You agree that CT may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

(d)            Reservation of Rights. CT reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the CT IP. 

(e)            Suspension. Notwithstanding anything to the contrary in this Agreement, CT may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Squirrel Services if: (i) CT reasonably determines that (A) there is a threat or attack on any of the CT IP; (B) Customer’s or any Authorized User’s use of the CT IP disrupts or poses a security risk to the CT IP or to any other customer or vendor of CT; (C) Customer or any Authorized User is using the CT IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) CT’s provision of the Squirrel Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of CT has suspended or terminated CT’s access to or use of any third-party services or products required to enable Customer to access the Squirrel Services; or (iii) in accordance with Section 4 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). CT will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.

3.              Customer Responsibilities.

(a)            Account Use. You are responsible and liable for all uses of the Squirrel Services resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Squirrel Services and shall cause Authorized Users to comply with such provisions.

(b)            Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Squirrel Services confidential. You will not sell, transfer, or share them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.

(c)             Third-Party Products. The Services may permit access to Third-Party Products. Such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Squirrel Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.

4.              Fees and Payment. You shall pay CT the fees set forth on the invoice issued to you by CT (“Fees”) within thirty (30) days from the invoice date without offset or deduction. The Fees for the Squirrel Services are described at https://comptool.com/solutions/squirrel/ or at such other website(s) as may be determined by CT in its discretion from time to time; provided that, in the event of any conflict between the Fees set forth on CT’s invoice and the Fees described on the above-referenced website(s), the Fees set forth on CT’s invoice shall control and be binding on Customer. You shall make all payments hereunder in US dollars on or before the due date. If you fail to make any payment when due, without limiting CT’s other rights and remedies: (i) CT may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) you shall reimburse CT for all costs incurred by CT in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days or more, CT may suspend, in accordance with Section 2(e), Customer’s and all other Authorized Users’ access to any portion or all of the Squirrel Services until such amounts are paid in full. All Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on CT’s income.

5.              Privacy Statement. CT complies with its privacy statement available at https://comptool.com/legal/privacy-statement/ (“Privacy Statement”), in providing the Squirrel Services. The Privacy Statement is subject to change as described therein. By accessing, using, and providing information to or through the Squirrel Services, you acknowledge that you have reviewed and accepted our Privacy Statement, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Statement.

6.              Intellectual Property Ownership; Feedback. We own all right, title, and interest, including all intellectual property rights, in and to the Squirrel Services. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Squirrel Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

7.              Warranty Disclaimer. THE SQUIRREL SERVICES ARE PROVIDED “AS IS” AND CT SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CT MAKES NO WARRANTY OF ANY KIND THAT THE SQUIRREL SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. CT DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

8.              Indemnification. Customer shall indemnify, hold harmless, and, at CT’s option, defend CT and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees (“Losses”) arising from or relating to any third-party claim, suit, action, or proceeding (“Third-Party Claim”) based on Customer’s negligence or willful misconduct or use of the Squirrel Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against CT unless CT consents to such settlement, and further provided that CT will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

9.              Limitations of Liability. IN NO EVENT WILL CT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.

10.           Term and Termination.

(a)            Term. The term of this Agreement begins on the Effective Date and continues until terminated in accordance with the provisions hereof. Squirrel Services that are specified to automatically renew in the invoice for such Squirrel Services or otherwise will renew for additional successive terms, each term being of equal duration to the initial services term, unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least one (1) day prior to the expiration of the then-current services term.

(b)            Termination. In addition to any other express termination right set forth in this Agreement:

(i)             CT may terminate this Agreement for any reason upon 10 days’ advance notice. You may terminate this Agreement for any reason by providing written notice to CT.

(ii)           either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or

(iii)          either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c)             Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Squirrel Services and the CT IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees and other amounts that may have become due before such expiration or termination, or entitle Customer to any refund. All Fees paid by Customer are non-refundable under all circumstances.  

(d)            Survival. This Section 12(d), 4, 8, 9, 11, 12, and 13, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

11.           Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications by email communication to the email address you provided during registration. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Squirrel Services after the effective date of the modifications will be deemed acceptance of the modified terms.  

12.           Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Washington, in each case located in Seattle, King County, Washington, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

13.           Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address as follows: Compensation Tool Corporation, Attn: Legal, 1916 Pike Place Ste 12 #1418 Seattle, WA 98101, and must be delivered either, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Squirrel Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder. CT may (a) issue a press release announcing the relationship between the parties, (b) make available for marketing purposes case studies regarding the implementation of the Services by Customer, (c) mention Customer and the parties’ relationship in CT’s marketing collateral, website, and other promotional materials, or (d) use Customer’s name, trademark(s), or logo(s) in any marketing or promotional efforts.

CompTool Marketplace Vendor Agreement

This CompTool Marketplace Vendor Agreement (this “Agreement”) is effective as of the date of the last signature below (“Effective Date”) and is entered into between Compensation Tool Corporation (“CompTool”) and the undersigned vendor (“Vendor”).

1. Marketplace Eligibility; Listing of Products.

(a) Marketplace Eligibility. The CompTool Marketplace is an online marketplace where vendors may list products for purchase and use by CompTool Customers (the “Marketplace”). To participate in the Marketplace, Vendor must (i) open and maintain (x) an account issued by CompTool to Vendor that enables the listing of Products via the Marketplace (“Vendor Account”) and (y) a Vendor-owned payment account approved by CompTool (“Payment Account”); and (ii) provide all information requested by CompTool to approve Vendor to participate in the Marketplace.

(b) Submission and Review of Products and Other Vendor Materials. Vendor will submit (i) products or other offerings (“Products”) Vendor wishes to list on the Marketplace, (ii) all related product descriptions and related materials (“Listing Materials”) and (iii) Vendor’s end user license agreement or other terms of service applicable to a Product (“Product EULA,” and together with Products and Listing Materials, “Vendor Materials”). CompTool may approve or reject Vendor Materials for the Marketplace in its discretion.

2. Agent Status. For purchases of Vendor Products by Marketplace customers, Vendor (a) hereby appoints CompTool as Vendor authorized payment agent to act on Vendor behalf for the limited purpose of receiving, processing and settling payments due to Vendor for CompTool customers’ (“Customers”) purchases of Vendor Products through the Marketplace (“Payment Agent”); (b) acknowledges that the Payment Agent will (i) receive on Vendor behalf amounts that Customers pay when they purchase, procure, or use Vendor Products through the Marketplace, (ii) process purchases, returns, and chargebacks arising out of Customers’ purchases of Vendor Products through the Marketplace, and (iii) pay Vendor the Vendor Net Revenue in accordance with Section 3 (Commercial Terms); and (c) Vendor acknowledges that payment received by the Payment Agent (including authorization of the payment by the issuer or account holding institution) will constitute payment to Vendor, and Customer’s payment obligation for Vendor Product will be deemed completed and discharged at that time.

3. Commercial Terms.

(a) Product Pricing. Vendor will set prices for Products on the Marketplace through the mechanism CompTool makes available.

(b) Revenue Share. CompTool will pay a percentage of Net Revenue (defined below) to Vendor as follows (the “Net Revenue Share”): for Vendor’s new Customers who purchase Products through the Marketplace, CompTool will pay Vendor seventy percent (70%) of Net Revenue.

(c) Payment Terms. All payments of Net Revenue Share will be made directly to the Payment Account. CompTool will, on or before the business day that is thirty (30) days after the last day of each calendar month during the Term, pay Vendor the applicable Net Revenue Share on sales of Products in the Marketplace during the previous calendar month where CompTool has been paid for services by Customer. For example, if Vendor’s Products were paid for in the Marketplace on January 2, 2024, CompTool would pay Vendor its Net Revenue Share for those sales on or before March 1, 2024.

(d) Payment Method. All payments of the Net Revenue Share will be made directly to the Payment Account. Payments will be transferred by the ACH Network (or by other means determined by CompTool). “Net Revenue” means the charges for Customers’ purchase, procurement, deployment, and use of Vendor’s Products from the Marketplace, minus (1) taxes; (2) charges that arise through any fraudulent or invalid means; (3) charges that are subject to chargebacks, reversals, or rejections by a bank or credit card issuer; (4) charges for Products that are not actually delivered or provided to the applicable Customer; and (5) download or use of the Products by CompTool solely to (x) develop or test the functionality of the Marketplace, (y) assess customer support issues with the Marketplace or a Product, or (z) market and/or demonstrate the Products to prospective customers.

(e) Vendor Console. CompTool will provide Vendor access to a console or other online tool within the Marketplace (a “Vendor Console”) in the manner generally made available to other Marketplace vendors to enable Vendor to manage administrative functions related to the Marketplace, including to review sales and other information relating to Vendor’s Products.

(f) Refunds. CompTool may provide Customers a refund of amounts charged to a Customer for a Product solely (i) as directed by Vendor; (ii) if the charges fall within clauses (2) through (4) of the definition of Net Revenue; or (iii) as required by CompTool’s agreement with the Customer governing the Customer’s purchase of the applicable Product. In the event of a refund, CompTool will refund the Customer the total amount charged for the Product minus any fees incurred by CompTool for payment processing associated with the transaction.

(g) Offsets. CompTool may deduct from amounts owed to Vendor under this Agreement, or require Vendor to reimburse CompTool for, (i) amounts refunded in accordance with Section 3(f) (Refunds); and (ii) amounts overpaid to Vendor in connection with this Agreement.

4. Intellectual Property; Licenses.

(a) License to CompTool. Vendor grants CompTool a limited, non-exclusive license to host, install, distribute, list for sale, sell, and publicly display the Products to CompTool’s registered members (including “freemium” members), solely to (i) operate the Marketplace, including enabling Customer discovery, purchase, procurement, and use of Products, and (ii) market the Products and the Marketplace.

(b) License to Customers. For each Product listed on the Marketplace, Vendor will provide to Customer via the Vendor Console a Product EULA that will govern Customer’s use of the applicable Product. Vendor will license, or grant access rights to, Products to Customers under the Product EULA.

(c) License to Vendor. CompTool grants Vendor a limited, non-exclusive, worldwide, royalty-free license to use the trademarks, logos, domain names, and other brand features of the Marketplace (collectively, “Marketplace Brand Features”) solely for marketing purposes related to Customer’s Products’ availability on the Marketplace or Customer’s participation as a Marketplace vendor.

(d) Ownership. Neither party grants the other any rights or licenses not expressly set forth in this Agreement, whether by implication, estoppel, waiver, or otherwise. As between the parties, (i) Vendor retains all ownership and other rights (including intellectual property rights) in the Products, Listing Materials, and Vendor trademarks, domain names, and other Vendor brand features (including any associated goodwill) and (b) CompTool retains all ownership and other rights (including intellectual property rights) in the Marketplace and Marketplace Brand Features (including any associated goodwill).

5. Additional Responsibilities.

(a) Products and Customer Relationships. Vendor is solely responsible for the Products, Vendor relationships with Customers (including any enforcement of or disputes under the Product EULA), and Vendor acts or omissions relating to the Products or Vendor Customer relationships. Vendor acknowledge that CompTool is the only party that will charge Customers fees for Products sold on the Marketplace, and Vendor will not charge or seek to collect any fees from Customers for Products sold on the Marketplace. Additionally, Vendor is solely responsible for approving purchase requests made by Customers.

(b) Product Support. Vendor is solely responsible for providing Customers with all customer and technical support for the Products sold by Vendor on the Marketplace. Vendor response times for and attention to Customer support requests for Products must be at least as urgent as those for the support requests for versions of similar products Vendor offer through other sales channels. After a Customer’s purchase of a Product has been approved by Vendor, CompTool will manage the integration and functionality of the Product within the CompTool Marketplace, as well as address Customer technical inquiries for issues solely to the extent related to the CompTool Marketplace; all other Product inquiries and support must be provided by Vendor.

(c) Vendor Representations and Warranties. Vendor represents and warrants that: (i) Vendor has full power and authority to enter into and perform this Agreement; (ii) in connection with this Agreement, Vendor and the Vendor Materials will comply with applicable laws; and (iii) Vendor has all necessary rights in the Vendor Materials and any third-party materials contained within the Vendor Materials to grant CompTool the rights in this Agreement and make Products available to Customers.

(d) Notice of Violations. Vendor will promptly notify CompTool if any Vendor Materials are the subject of any allegation, claim, or complaint regarding the applicable Vendor Material’s violation or infringement of applicable laws or third party rights (including intellectual property rights).

6. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPTOOL AND VENDOR MAKE NO WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. COMPTOOL PROVIDES THE MARKETPLACE, VENDOR ACCOUNT, VENDOR CONSOLE, MARKETPLACE BRAND FEATURES, AND ALL OTHER MATERIALS “AS IS” AND “AS AVAILABLE”. COMPTOOL DOES NOT GUARANTEE ANY CUSTOMERS WILL PURCHASE, PROCURE, OR USE ANY PRODUCTS.

7. Confidentiality.

(a) Duty. The recipient will not disclose the discloser’s Confidential Information (defined below), except to employees, Affiliates, contractors, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement, and will ensure that such Delegates use the discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement while using reasonable care to protect the Confidential Information. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations. For clarity, Vendor Materials provided for listing on the Marketplace may be made available or displayed to Customers and prospective customers of Products. The terms of this Agreement are Confidential Information of both parties.

(b) Definitions. For purposes of this Agreement, the following terms have the following meanings:

(i) “Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

(ii) “Confidential Information” means information that one party discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.

(iii) “Control” means control of greater than 50% of the voting rights or equity interests of a person or entity.

(c) Required Disclosure. The recipient may disclose Confidential Information when required by law, provided that the recipient uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party’s reasonable requests regarding its efforts to oppose or limit the disclosure.

8. Limitations of Liability.

(a) Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 8(c) (Unlimited Liabilities), neither party will have any liability arising out of or relating to this Agreement for any (i) indirect, consequential, special, incidental, or punitive damages or (ii) lost revenues, profits, savings, or goodwill.

(b) Limitation on Amount of Liability. Each party’s total aggregate liability for damages arising out of or relating to this Agreement is limited to the Vendor Net Revenue Share paid or payable by CompTool during the 12-month period before the event giving rise to Liability.

(c) Unlimited Liabilities. Nothing in this Agreement excludes or limits either party’s Liability for: (i) its fraud or fraudulent misrepresentation; (ii) its obligations under Section 9 (Indemnification); (iii) its breach of Section 7 (Confidentiality); (iv) its infringement of the other party’s intellectual property rights; (v) its payment obligations under this Agreement; or (vi) matters for which liability cannot be excluded or limited under applicable laws.

9. Indemnification.

(a) Obligations.

(i) Vendor will defend CompTool and its Affiliates and indemnify them against any settlement amounts approved by the indemnifying party and damages and costs finally awarded against the indemnified party by a court of competent jurisdiction in any legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding) (each, a “Third-Party Legal Proceeding”) to the extent arising from (1) an allegation that any Vendor Materials infringe, misappropriate, or violate a third party’s intellectual property rights or applicable laws or do not comply with any licenses governing third-party materials included in the Vendor Materials; (2) a Customer’s use of a Product; (3) any disputes or claims arising under the Product EULA; or (4) Vendor use of (x) information relating to a Customer that CompTool provides or makes available to Vendor or (y) Customer information, content, or data that Vendor processes in connection with a Product.

(ii) CompTool will defend Vendor and its Affiliates and indemnify them against any settlement amounts approved by the indemnifying party and damages and costs finally awarded against the indemnified party by a court of competent jurisdiction in any Third-Party Legal Proceeding to the extent arising from (1) an allegation that CompTool’s technology used to provide the Marketplace (excluding Vendor Materials) or any Marketplace Brand Feature infringes, misappropriates, or violates a third party’s intellectual property rights or applicable laws or does not comply with any licenses governing third-party materials included in the Marketplace (excluding Vendor Materials); (2) a Customer’s use of the Marketplace (excluding any Product and Vendor Materials); (3) any disputes or claims arising under CompTool’s customer terms of use for the Marketplace; or (4) CompTool’s use of (x) information relating to a Customer that Vendor provides or makes available to CompTool or (y) Customer information, content, or data that CompTool processes in connection with a Product.

(b) Exceptions. An indemnifying party’s obligations under Section 9(a) (Obligations) do not extend to claims to the extent the underlying allegation arises solely from breach by the indemnifying party of its material obligations hereunder.

(c) Conditions. The indemnifying party’s obligations under Section 9(a) (Obligations) are conditioned on the following:

(i) The indemnified party must promptly notify the indemnifying party in writing of any allegation that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation or proceeding. If breach of this Section 9(c) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 9(a) (Obligations) will be reduced in proportion to the prejudice.

(ii) The indemnified party must give sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent (not to be unreasonably withheld, conditioned, or delayed).

(d) Remedies. In the event an injunction preventing continued use of Products is threatened or granted, Vendor will, at Vendor sole option and expense: (i) procure the right to continue providing the Products in compliance with this Agreement; or (ii) modify the Products to make them non-infringing. If Vendor is unable to do either despite commercially reasonable efforts, Vendor will remove the affected Product from the Marketplace in accordance with Section 10(a) (Removal By Vendor).

10. Product Takedowns.

(a) Removal By Vendor. Vendor may remove any Product from the Marketplace at any time.

(b) CompTool’s Right to Removal. CompTool reserves the unilateral right to, at its sole discretion, conceal, prohibit access to, or remove any Product from the Marketplace at any time, without prior notice.

11. Term and Termination.

(a) Term. This Agreement begins on the Effective Date and will remain in effect for one-year (“Initial Term”). At the end of the Initial Term or any Renewal Term, this Agreement will automatically renew for an additional one-year period (each a “Renewal Term”) unless a party provides written notice to the other party of its intent not to renew this Agreement at least 90 days prior to the end of the then-current Initial Term or Renewal Term. The “Term” of this Agreement begins on the Effective Date and continues until this Agreement is terminated in accordance with this Section 11.

(b) Termination. Either party may terminate this Agreement (i) for convenience at any time; or (ii) immediately if the party is required to do so by applicable laws, if a Product violates applicable laws, or if CompTool reasonably determines that immediate termination is necessary to avoid harm, liability, or reputational damage to CompTool, the Marketplace, or a Customer.

(c) Effect of Termination. Upon termination of this Agreement, (i) all Products will be removed from the Marketplace; and (ii) Vendor must cease use of any Vendor Account credentials.

(d) Survival. The following sections survive termination of this Agreement: Sections 4(d) (Ownership), 6 (Disclaimer of Warranties), 7 (Confidentiality), 8 (Limitations of Liability), 9 (Indemnification), 11 (Term and Termination), and 12 (General Terms). In addition, the parties’ payment obligations with respect to Products sold prior to the effective date of termination will survive termination until paid with respect to such Products.

12. General Terms.

(a) Modifications. CompTool may make changes to this Agreement from time to time. CompTool will post any change to this Agreement to comptool.com/tos and send an email notice to Vendor regarding such change. Unless Vendor separately agrees to the changes (e.g., via a click-to-accept), Vendor hereby agree that changes to this Agreement will become effective 30 days after they are posted and that Vendor are bound by such changes, except to the extent the changes apply to new Marketplace functionality or are required by applicable law, in which case they will be effective immediately. If Vendor does not agree to the revised Agreement, Vendor will stop using the Marketplace. Vendor may also terminate this Agreement for convenience under Section 11(b) (Termination). Vendor’s continued use of the Marketplace after such change will constitute Vendor consent and agreement to such changes.

(b) Notices. Notices to be provided under this Agreement must be in writing. CompTool will provide notices under this Agreement to Vendor by sending an email to the means the Vendor email address in CompTool’s records. Vendor will provide notices under this Agreement to CompTool by sending an email to info@CompTool.com. Notice will be treated as received when the email is sent. Vendor is responsible for keeping its email address current throughout the term.

(c) Emails. The parties may use emails to satisfy written approval and consent requirements under this Agreement.

(d) Assignment. Neither party may assign this Agreement without the written consent of the other, except CompTool may assign this Agreement without such consent and upon 10 days prior written notice to Vendor, to (i) one of its Affiliates or (ii) an entity that acquires all or substantially all of CompTool’s business or assets, whether by merger, reorganization, acquisition, sale, or other change of Control (defined below). Any other attempt to assign is void.

(e) Change of Control. If Vendor experiences a change of Control other than an internal restructuring or reorganization, then Vendor will give written notice to CompTool within 30 days after such change of Control (such notice will include the identity of the entity with which Vendor have entered into or undergone a change of Control).

(f) Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

(g) No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

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

(i) Severability. If any part of this Agreement is invalid, illegal, or unenforceable, it will be modified where practicable to the extent necessary so as to be enforceable (giving effect to the intention of the parties), or severed if such modification is not possible, and the rest of this Agreement will remain in effect.

(j) No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

(k) Counterparts. The parties may execute this Agreement in counterparts, including DocuSign, PDF, and other electronic copies, which taken together will constitute one instrument.

(l) Independent Development. Nothing in this Agreement will be construed to limit or restrict either party from independently developing, providing, or acquiring any materials, services, products, programs, or technology that are similar to the subject of this Agreement, provided that the party does not breach its obligations under this Agreement in doing so.

(m) No Obligation to List. The parties acknowledge that neither party is obligated by this Agreement to list any Product on the Marketplace, and each party may remove a Product from the Marketplace in accordance with Section 10 (Product Takedowns).

(n) Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

(o) Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE GOVERNED BY TEXAS LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF TRAVIS COUNTY, TEXAS; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

(p) Entire Agreement. This Agreement states all terms agreed between the parties relating to its subject matter, and the parties hereby agree that this Agreement completely replaces any prior agreements between Vendor and CompTool in relation to its subject matter, notwithstanding any language in such prior agreements to the contrary. If any Products have been listed on the Marketplace before the Effective Date, then, as of the Effective Date, such Products will be governed by this Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement.

(q) Electronic Signatures. The parties consent to electronic signatures.

(r) Headers. Headings and captions used in this Agreement are for reference purposes only and will not have any effect on the interpretation of this Agreement.