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Terms and Conditions





These Terms and Conditions (these “Terms”; and collectively with all Orders, the Privacy Policy, any Supplemental Terms of Service referenced in any Order, and all documents or other terms incorporated herein or therein each as applicable and in effect from time to time, collectively, the “Agreement”) sets forth the terms and conditions under which MAXIO will provide its technology platform offered through the http://www.maxio.com website, the MAXIO mobile application (the “MAXIO Website” or “MAXIO Platform”), and/or any other services, applications and features offered or enabled by or through us with respect thereto, except where we explicitly state otherwise (all services offered through the MAXIO Website or the MAXIO Platform, collectively, “Services”). MAXIO”, “our”, “we” and “us” refer to SO Holdco, LLC, a Delaware limited liability company d/b/a MAXIO and its affiliated companies and subsidiaries worldwide. “You” or “Your” as used in this Agreement refers to each of: (i) the individual (if you are a sole proprietorship), company, firm or entity subscribing to the Services via an Order (each, a “Subscriber”); and (iii) any individual user accessing the Services in connection with its relationship with a Subscriber (each, an “End User”). Capitalized terms used herein and not defined have the meaning assigned in the applicable Order (as defined below).

PLEASE READ THE ENTIRETY OF THESE TERMS CAREFULLY. By subscribing to the Services, You acknowledge and agree that You have read and agree to be bound by all terms of the Agreement and all applicable laws, rules and regulations. If You do not wish to comply with any terms of the Agreement, You should not access or use the Services.

1. GRANT OF LICENSE

MAXIO hereby grants You a limited, non-exclusive, non-transferable, right to access and use the Services, solely for Your own internal business purposes and subject to these Terms and, for each Subscriber, the terms set forth in the applicable subscription services order executed by such Subscriber incorporating these Terms (each, an “Order”). All rights not expressly granted to You are reserved by MAXIO and its licensors. The foregoing license shall immediately terminate upon termination of the Agreement for any reason.

2. PERMITTED USE OF THE SERVICES

You agree to use the Services solely in conjunction with the operation of your business, and, if you are Subscriber, such operation may include use by related third-party partners, vendors, and clients with whom you collaborate in Your normal course of business and to whom you may grant access to Your Services account (the “Account”), all of whom would be considered End Users for purposes of this Agreement. Subscribers are solely responsible for determining and assigning access levels and authority to the Services to their End Users and for all use of the Services by those End Users. You are responsible for maintaining the confidentiality of all usernames, passwords and related information (collectively, "Access Credentials") assigned to or connected with Your access of the Services. You will not share, or permit the sharing of, Access Credentials and related information by End Users or other third parties. If an End User leaves the employ of a Subscriber or transfers to an unrelated position in Subscriber’s employ, Subscribers may designate a replacement End User without charge. MAXIO will not have any liability to any Subscriber or any third party for any End User’s use or misuse of the Services. Subscribers control access to and the management of their Subscriber Data through their Account.

You will not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unrelated third party or competitor of MAXIO the Services in any way; (b) modify or make derivative works based upon the Services; (c) “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (d) reverse engineer or access the Services in order to (i) build or offer a competitive product or service, (ii) build or offer a product or service using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services; (e) use the Services (i) for any illegal purpose, (ii) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (iii) to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.

You will not: (x) intentionally interfere with or disrupt the integrity or performance of the Services; (y) attempt to gain unauthorized access to the Services, or (z) intentionally send or store (and you will use commercially reasonable efforts to prevent the transmission or storage of) software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs intended to interfere with the Services or other users of the Services.

3. INTELLECTUAL PROPERTY RIGHTS

All rights, title and interest (including copyrights and other intellectual property rights or informational rights) in and to the Services and all legally protectable elements or derivative works thereof (including any images, “applets,” photographs, animations, video, audio, music, and text incorporated into or made a part of the Services, and all accompanying electronic materials, together with any copies You are permitted to make under this Agreement) are owned by MAXIO or its licensors and are protected by the United States copyright laws and international treaty provisions. You are permitted to make copies of the training materials accompanying the Services solely for use as reference guides for authorized End Users using the Services pursuant to these Terms. All such copies shall contain the copyright and other proprietary notices of MAXIO. You are prohibited from any other copying of the electronic or printed materials accompanying the Services without the express written permission of MAXIO.

MAXIO may use any feedback or suggestion it receives from You with respect to the Services (“Feedback”) for the purpose of optimizing, improving, enhancing, and/or creating derivative products. MAXIO shall have no obligation to compensate You in connection with the use of such Feedback nor shall MAXIO identify You as the source of any such Feedback. All Feedback shall be owned by MAXIO and You shall and hereby do, assign all of Your right, title, and interest in and to such Feedback to MAXIO.

4. WARRANTIES.

MAXIO represents and warrants to its Subscribers only that:

a. it has the right, power, and authority to enter into this Agreement, grant the rights and licenses granted herein, and fully perform its obligations hereunder;

b. the Services will perform materially in accordance with the applicable Documentation; for purposes of these Terms, “Documentation” means the operator and user information, training materials, guides, listings, specifications, and other materials, including online information and materials, relating to the use of the Services made available to You as part of the Services;

c. the Services (exclusive of any Subscriber Data) do not infringe any intellectual property rights of any third party anywhere in the world and no third party, other than MAXIO’s licensors, has any proprietary interest in or to the Services (exclusive of any Subscriber Data);

d. the Services do not intentionally contain, and MAXIO will use commercially reasonable efforts to prevent introduction of, malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems, or data; and

If the warranty set forth in subsection (b) is breached, then: (i) You must promptly notify MAXIO of the breach and provide any associated details reasonably requested by MAXIO in its attempt to remedy the defect. MAXIO will diligently and in good faith attempt to correct the reported defect within a commercially reasonable period of time. If MAXIO is unable to cure that defect, then You may elect to terminate this Agreement and receive a refund of the unearned portion of any fees paid to MAXIO for the remainder of the then-current term. THE REMEDIES OF REPERFORMANCE, TERMINATION AND REFUND ARE YOUR SOLE AND EXCLUSIVE REMEDIES, AND MAXIO’S ENTIRE LIABILITY FOR BREACH OF THE WARRANTY SET FORTH IN SECTION 4(b).

Each Subscriber represents and warrants to MAXIO that:

a. it has the right, power, and authority to enter into this Agreement, grant the rights and licenses granted herein, provide the Subscriber Data associated with such Subscriber and fully perform its obligations hereunder;

b. the Subscriber Data associated with such Subscriber does not infringe any intellectual property rights of any third party anywhere in the world and no third party, other than Subscriber’s licensors, has any proprietary interest in or to such Subscriber Data;

c. Subscriber will not intentionally transmit or introduce, and Subscriber will use commercially reasonable efforts to prevent introduction of, malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems, or data; and

d. the performance of its obligations and use of the Services by Subscriber or its End Users will not violate any applicable laws, including, without limitation, any laws relating to the collection, maintenance, transmission or use of personal information or data.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FO R A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MAXIO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. AS BETWEEN THE PARTIES, YOU ARE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL SUBSCRIBER DATA USED BY YOU OR YOUR END USERS IN CONNECTION WITH THE SERVICES AND ALL DATA, INFORMATION, REPORTS AND OUTPUT OF THE SERVICES. A SUBSCRIBER MAY NOT MAKE ANY WARRANTIES REGARDING THE SERVICES OR ANY COMPONENT THEREOF TO ITS CLIENTS OR END USERS, OR ANY THIRD PARTY ON BEHALF OF MAXIO. MAXIO’S PROVISION OF THE SERVICES TO ALL END USERS IS ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND.

5. SERVICE CHANGES; SUPPORT; PERFORMANCE

MAXIO makes regular changes and improvements to the Services from time to time. Any intellectual property created in the course of implementing and providing the Services, whether by MAXIO alone or jointly with You, will be and remain the exclusive property of MAXIO, and You assign any of your rights, interest or title in or to the same to MAXIO. In no event will any service changes materially reduce the functionality provided by the Services as of the date of the applicable Order. MAXIO will communicate with Subscribers about planned changes as may be necessary to ensure Your efficient use of the Services. MAXIO will provide standard support to its Subscribers and their authorized End Users at no additional charge. MAXIO is not responsible for (i) correcting errors resulting from misuse, negligence, revision, modification, or improper use of the Services; (ii) errors resulting from any software, hardware or equipment other than those used by MAXIO or its providers to provide the Services; or (iii) any errors resulting from an End User’s failure to comply with any applicable system or browser specifications set forth in the Documentation.

For Subscribers, MAXIO will use commercially reasonable efforts to ensure that the Services will be available 99.6% of the time each month other than during scheduled or emergency maintenance. You understand that normal maintenance and backup procedures will cause temporary downtime during which the Services cannot be used. MAXIO may also suspend or interrupt the Services as necessary to address significant issues or perform emergency maintenance. Without limitation, MAXIO may suspend or interrupt the Services (or part of the Services) without notice: (i) if MAXIO believes that any use of the Services represents a direct or indirect threat to the function or integrity of the Services, MAXIO’s or its service providers' system or networks, or any third party's use of the Services; (ii) if reasonably necessary to prevent unauthorized access to any Subscriber Data or other data or information stored on the Services; or (iii) to the extent necessary to comply with legal requirements. MAXIO will use commercially reasonable efforts to restrict the scope and length of such suspension to that reasonably necessary to address the issues giving rise to the suspension.

Your access to the Services is through the Internet, and you understand that your ability to use the Services is dependent on the global telecommunications infrastructure involving the reliability and performance. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. MAXIO is not responsible for any delays, delivery failures, or other damage resulting from such problems.

6. THIRD PARTY PLATFORMS

The Services may interoperate with various third-party platforms (“Third-Party Platforms”). You acknowledge that such integration features may be unavailable or may not work properly if the Third-Party Platform (or its API) is unavailable or if the applicable service provider (each, a “Third Party Provider”) modifies its API or services in a way that impacts the Services’ integration feature. Continued interoperation of the Services with any Third-Party Platform is dependent upon the availability of each such platform, and MAXIO may cease to provide such functionality (without any liability to you) if access to any Third-Party Platform is not available to MAXIO on commercially reasonable terms.

You further acknowledge and agree that (a) access and use of a Third Party Platform may be subject to Your subscription to or purchase of a separate license from (or agreement or acceptance of separate terms of use or similar terms with) the Third Party Provider; (b) You will review and comply with all such terms and conditions, and will not use the Third Party Platform in any manner that would infringe or violate the rights of MAXIO or any other party or in furtherance of criminal, fraudulent or other unlawful activity; (c) the Third Party Provider, and not MAXIO, is responsible for its own actions and inactions; (d) MAXIO’s provision of integrated access with such Third Party Platform via the Services may be revoked by the Third Party Provider or MAXIO at any time and without notice or any liability to You; (e) if You subscribe to or otherwise use the Third Party Platform, MAXIO may transmit to the applicable Third Party Provider that portion of your Subscriber Data residing in the Services as you direct (or as directed by the Subscriber through whom you have been granted access to the Services) or as otherwise is reasonably necessary for the Third Party Provider to perform and provide the Third Party Platform. Without limiting the generality of the terms of Section 4 of these Terms, each Subscriber represents and warrants that such Subscriber has either provided the owner of any such Subscriber Data notice or received permission from the owner of such Subscriber Data, as required by applicable law, for MAXIO to: (i) use or disclose the Subscriber Data in accordance with MAXIO’s Privacy Policy, (ii) provide the data to Third Party Platform in accordance with the terms of this Agreement, and (iii) otherwise use and disclose the Subscriber Data in accordance with this Agreement.

YOU ACKNOWLEDGE THAT MAXIO'S ACTIVITIES WITH RESPECT TO ANY THIRD PARTY PLATFORM ARE OFFERED BY MAXIO SOLELY AS A CONVENIENCE TO ITS SUBSCRIBERS AND THEIR END USERS, AND MAXIO WILL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH ANY THIRD PARTY PLATFORM, THE INTEGRATION OF SUCH THIRD PARTY PLATFORM WITH THE MAXIO SERVICES, EVEN IF MAXIO, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

7. SUBSCRIBER DATA

A. Data Ownership and License

MAXIO does not own any data, information, or material that is submitted to the Service by You (“Subscriber Data”). You retain all right, title, and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in Subscriber Data, and MAXIO explicitly disclaims any ownership of, or right, title, and interest in such Subscriber Data.

If You provide any Subscriber Data to MAXIO, You: (i) grant MAXIO the right to use, copy, modify, manipulate and create derivative works of the Subscriber Data as necessary in order for MAXIO to provide and perform the Services; (ii) agrees to secure rights in the Subscriber Data necessary for MAXIO to provide the Services without violating the rights of any third party, or otherwise obligating MAXIO to any third party (except as otherwise set out in these Terms). As between MAXIO and its Subscribers, Subscribers have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or right to use, Subscriber Data. MAXIO will only use Subscriber Data solely for purposes of providing the Services, providing support for the Services, and confirming Your compliance with these Terms. MAXIO may transmit or disclose Subscriber Data to third parties in accordance with Your or Your Subscriber’s directions (whether via the Services or otherwise). Subscribers are responsible for exporting Subscriber Data from the Services prior to termination of this Agreement.

In the event (i) MAXIO is required to respond to any search warrant, court order, subpoena other valid legal order relating to a Subscriber or the Subscriber Data, or (ii) a Subscriber requests material assistance from MAXIO in connection with Subscriber’s efforts to conduct any investigation, to cooperate with or respond to any investigation being conducted by a third party, or to pursue or respond to any matter or respond to any legal or administrative proceeding or similar matter, such Subscriber will reimburse MAXIO for any cost that it incurs in so responding or assisting.

You acknowledge that MAXIO may collect and analyze Subscriber Data and other information about Your usage of the Services to improve and enhance the Services, provide support, and for other development purposes including industry-wide benchmarking; provided, however, Subscriber Data used for benchmarking will be aggregated and anonymized, and MAXIO will not disclose any personally identifiable information provided by You.

B. Data Protection Measures

MAXIO will implement, maintain and enforce safety and physical security procedures with respect to its access to and maintenance of Subscriber Data that include reasonable and appropriate technical and organizational measures designed to help secure the Subscriber Data against accidental or unlawful loss, access, or disclosure and will otherwise comply with its Privacy Policy and all applicable law to the extent applicable to any Subscriber Data. MAXIO will on an annual basis perform testing of its systems as reasonably appropriate to detect potential areas where security could be breached. You agree that these measures are MAXIO's only responsibility with respect to the security and handling of Subscriber Data and are in lieu of the terms of Section 10. Except as otherwise required by applicable law, MAXIO does not and will not accept any obligations in any separate license or other agreement that may apply to the Subscriber Data or use of the Services.

In the event of any unauthorized access to Subscriber Data (an “Incident”), MAXIO will: (i) notify You without undue delay, and in any event within seventy-two (72) hours of discovery; (ii) promptly investigate such Incident and provide a written report of such investigation (including the causes of the breach) to Client; (iii) promptly use commercially reasonable efforts to remediate the effects of such Incident; and (iv) provide You with reasonable cooperation respect to any investigation regarding such Incident

C. Data Law Compliance.

Each party is responsible for complying with all local, state, provincial, federal, and international laws and regulations applicable to such party’s activities under this Agreement (“Applicable Laws”), including applicable data protection legal requirements, for the purposes of this Agreement. MAXIO shall implement processes and maintain procedures designed to comply with applicable data protection laws and shall use reasonable efforts to facilitate your compliance with your obligations for data security and response to individual data subject requests with respect to Personal Data (as defined in the Privacy Policy) in MAXIO’s possession or control, to the extent that you are required to comply with the following: (i) the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act ("UK GDPR"); (ii) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) and any applicable laws enacted by an EU member state implementing the requirements of GDPR; (iii) the Australian Privacy Act 1988 and National Privacy Principles; (iv) the Canadian Personal Information Protection and Electronic Documents Act; (v) the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. and implementing regulations (“CCPA”); (vi) any other existing or newly enacted Applicable Laws regarding privacy; and (vii) any amendments and successors to the foregoing. This Agreement and the Documentation constitute your instructions to MAXIO for processing Subscriber Data, and MAXIO shall not process Subscriber Data for any other purpose. MAXIO may use subcontractors to facilitate its obligations under this Agreement, and MAXIO shall be responsible for the acts and omissions of such subcontractors relating to this Agreement as though they were those of MAXIO. MAXIO shall use commercially reasonable measures to ensure that such subcontractors implement and comply with its security measures in handling any Subscriber Data.

If You are a Subscriber and MAXIO processes Subscriber Data on Your behalf for the provision of the Services, the parties acknowledge and agree that MAXIO is a “Service Provider” as defined in the CCPA, and Subscriber Data may include personal information, as that term is defined by the CCPA (“CCPA Personal Information”). MAXIO does not sell CCPA Personal Information. When MAXIO processes CCPA Personal Information for or on a Subscriber’s behalf, MAXIO collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in this Agreement, and for no other commercial purpose. MAXIO certifies that it understands and will comply with the restrictions set forth in the foregoing paragraph.

To the extent that MAXIO processes any Personal Data on Your behalf as a Subscriber and (i) the Personal Data relates to individuals in the EEA or the United Kingdom, or (ii) You are established in the EEA or the United Kingdom, you agree that MAXIO does so as a processor only, and the parties agree to execute and comply with the DPA.

D. Limitations.

You acknowledge and agree that the Services are not intended for use in the storage, processing, or handling of data that is (i) Protected Health Information subject to the Health Insurance Portability and Accountability Act, as amended (“HIPAA”), (ii) Sensitive Personal Data or (iii) the following data elements (a) Social Security number; (b) driver’s license number or government-issued identification card number; or (c) other than the Maxio Payments Services, with respect to which Supplemental Terms apply, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account. “Protected Health Information” has the meaning set forth in HIPAA, and “Sensitive Personal Data” has the meaning set forth in Article 9 of the GDPR or other applicable data protection legislation. You will not transmit or otherwise include any such information in the Subscriber Data.

8. FEES; PAYMENT TERMS.

For Subscribers, the fees payable for the Services (the “Fees”) shall be stated and paid in the currency specified in the applicable Order and are non-refundable. Unless otherwise specified in the applicable Order, Subscribers shall pay the Fees within thirty (30) days from the invoice date, without setoff or deductions and otherwise in accordance with the terms of the applicable Order.

If any invoiced amount is not received by MAXIO by the due date, then those amounts shall accrue late interest at a rate of one and a half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, commencing on the date that payment was due. Time is of the essence with respect to all payment obligations of a Subscriber.

All Fees are exclusive of federal, state, local and foreign taxes, duties, levies, withholdings and similar assessments (“Taxes”) and Subscribers are responsible for the payment of all Taxes, excluding Taxes on MAXIO’s net income.

MAXIO reserves the right to modify the Fees for the Services, effective upon commencement of the next Renewal Term, by notifying You of such change in writing at least sixty (60) days before the end of the then-current Term.

9. TERM AND TERMINATION

For Subscribers, the term of this Agreement shall begin on the effective date of the applicable Order and shall continue as stated in such Order. Either MAXIO or the Subscriber may, at its option, terminate this Agreement if the other party materially breaches the terms of this Agreement or the applicable Order and fails to cure the same within thirty (30) days after notice.

For End Users, the term of this Agreement shall begin on the date you are granted access to the Services and shall end on the date such access is revoked or terminated. Expiration or termination of any Order with a Subscriber shall terminate access and this Agreement for all End Users accessing the Services pursuant to such Order.

MAXIO may suspend your access to the Services and Subscriber Data during any period that you (or any Subscriber through which you have been granted access) are in material breach of this Agreement or your access to and use of the Services or Subscriber Data creates a material security vulnerability. Where practicable, MAXIO will give the applicable Subscriber at least two (2) days’ advance notice of the suspension unless the suspension is made under emergency circumstances. MAXIO will reinstate your access to the Services when the grounds for suspension are cured.

Upon termination of Your access to or use of the Services for any reason, MAXIO will retain Subscriber Data for up to sixty (60) days from the effective date of termination; provided, however, that MAXIO reserves the right to retain Subscriber Data beyond such period for legal, archival or recordkeeping requirements. If a Subscriber wishes to export Subscriber Data following a termination for breach then, subject to payment of all Fees applicable to such Subscriber’s Account, MAXIO will either, at its option, enable short-term access to the Services at a scheduled time so that the Subscriber may export Subscriber Data, or export Subscriber Data using its standard export tools. MAXIO has no obligation to retain Subscriber Data after the sixty (60) day period and may destroy Subscriber Data any time thereafter.

The following sections survive expiration or termination of this Agreement: Section 3 (Intellectual Property Rights), the last paragraphs of Sections 4 and 6, the first paragraph of Section 7 (Subscriber Data); Section 8 (Fee; Payment Terms); Section 9 (Termination); Section 10 (Confidentiality); Section 11 (Indemnification); Section 12 (Limitation of Liability); Section 16 (Governing Law; Export Compliance); and any other terms that by their nature are intended to survive expiration or termination.

10. CONFIDENTIALITY

You and MAXIO may disclose information to one another, and You may access information in connection with the Services, that is considered by the disclosing party to be proprietary or confidential information (“Confidential Information”). Confidential Information includes any information or data, in any form, including, but not limited to oral, written, graphic or electronic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. Subscriber Data is not considered Confidential Information for purposes of this Section 10 and is subject to the terms of Section 7 of these Terms.

All Confidential Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party's Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in these Terms, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.

The restrictions on the use or disclosure of Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed under operation of law (but solely for the purposes of and extent of such disclosure). Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will, to the extent legally permitted, promptly notify the disclosing party of such order or requirement.

You understand that MAXIO implementation and support personnel may need to access Your Account to assist in implementation of the Services, as well as to address support requests that may occur from time to time, but such access shall be on a need-to-know basis. You permit MAXIO’s implementation and support personnel to access Your Account with the understanding that all information in Your Account (other than Subscriber Data) shall be considered Confidential Information by MAXIO personnel.

11. INDEMNIFICATION

MAXIO will indemnify, defend and hold harmless each Subscriber from and against any and all claims, actions, losses, damages, liabilities, fees, fines, costs, and expenses including, without limitation, reasonable attorneys’ fees and disbursements paid or payable to a third party (collectively, “Losses”) incurred by such Subscriber arising out of any third-party claim that the Services delivered under this Agreement (exclusive of any Subscriber Data) infringe any patent, copyright or other intellectual property right of a third party. If the Services or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, MAXIO will either procure the right, at MAXIO’ sole expense, to permit continued use of the Services for such Subscribers (and their associated End Users), or replace or modify the Services so as to avoid infringement without materially altering the functionality and performance thereof. If MAXIO reasonably and in good faith determines that neither of the foregoing are commercially practicable, MAXIO may terminate this Agreement with the Subscriber and the licenses granted herein effective immediately upon written notice to the Subscriber and refund the unearned pro-rata portion of any prepaid Fees. THIS PARAGRAPH STATES YOUR SOLE AND EXCLUSIVE REMEDY AND MAXIO’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS. THE FOREGOING OBLIGATIONS EXTEND TO SUBSCRIBERS ONLY, AND END USERS SHALL HAVE NO RIGHTS THEREUNDER.

If You are a Subscriber, You will indemnify, defend and hold harmless MAXIO and MAXIO’s officers, directors, employees and agents (each, a “MAXIO Indemnitee”) against any and all Losses incurred by a MAXIO Indemnitee in any claim, demand or action brought by a third party (including any regulatory authority) arising out of or relating to (i) Your breach of any representation, warranty or covenant in the Agreement; (ii) Your or your End Users’ use or misuse of the Services; or (iii) Your negligence or willful misconduct.

The foregoing indemnification obligations are contingent upon satisfaction of the following conditions: (i) the indemnified party must promptly notify the indemnifying party in writing of the third party claim or action (but failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent it has been prejudiced thereby); (ii) the indemnified party will reasonably cooperate with the indemnifying party in the defense of the matter, at the indemnifying party’s request and expense; and (iii) the indemnifying party will have sole control of the defense of the action and negotiations for its settlement and compromise, but shall not settle or compromise any underlying claim without the indemnified party’s prior written consent unless such settlement does not (a) admit liability on behalf of the indemnified party; and (b) require the indemnified party to take, or refrain from taking, any action other than the payment of Losses. The indemnified party may, at its own cost, obtain separate counsel to represent its interests.

12. LIMITATION OF LIABILITY

IF YOU ARE A SUBSCRIBER, THEN TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT FOR (i) LIABILITY ARISING FROM A MATERIAL BREACH OF SECTIONS 1, 2 OR 10 OF THESE TERMS, (ii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, (iii) LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (iv) YOUR OBLIGATION TO REMIT ALL AMOUNTS PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) SHALL:

a. BE LIMITED TO DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE (WHICHEVER IS GREATER) BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE; PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY CLAIM BY A SUBSCRIBER FOR BREACH OF MAXIO’S OBLIGATIONS UNDER 7.B (DATA PROTECTION) AS A RESULT OF THE ACTS OR OMISSIONS OF MAXIO OR ITS EMPLOYEES, MAXIO’S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED ONE MILLION DOLLARS ($1,000,000);

b. NOT INCLUDE (AND EACH PARTY EXPRESSLY DISCLAIMS) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND

c. IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY CLAIMS OR DEMANDS OF THIRD PARTIES.

IF YOU ARE AN END USER, THEN TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THEN MAXIO SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY UNDER THIS AGREEMENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT.

13. FORCE MAJEURE

Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement (other than a Subscriber’s failure to pay any fees due hereunder) to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, including, without limitation, acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.

14. INDEPENDENT CONTRACTORS

You and MAXIO are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisee-franchisor relationship is intended or created by this Agreement.

15. NOTICES

Except as explicitly stated otherwise, any notice to MAXIO shall be given via a nationally recognized overnight courier or by certified mail, postage prepaid and return receipt requested, as follows:

MAXIO

SO Holdco, LLC

Attention: Legal Counsel

6575 The Corners Parkway

STE 400

Atlanta, GA 30092

Notice to MAXIO will be effective upon receipt. Any notice to You will be given via email to the address You provide to MAXIO during the registration and provisioning process (or, if you are an End User, such notice may be delivered to your Subscriber) and shall be deemed given upon transmission during the hours of 8 a.m. – 6 p.m. ET or on the following business day if transmitted outside of such hours, unless the sending party is notified that the electronic mail address is invalid. Either party may update its address by proper notice to the other party in the same manner as provided herein.

General information regarding the Services (such as scheduled maintenance information) may also be provided by posting on the Services only. Upon account setup of the Services provided under this Agreement, a Subscriber may designate additional contacts for various types of notices. MAXIO may rely and act on all information, authorizations and instructions provided to MAXIO from any Subscriber administrators.

16. GOVERNING LAW; EXPORT COMPLIANCE

This Agreement is governed by the laws of the State of Delaware, U.S.A. (without regard to its conflicts of laws provisions). The United Nations Convention on Contracts for the International Sale of Goods is excluded from application to this Agreement. No action arising out of this Agreement, regardless of the form, may be brought by either party more than two (2) years after the cause of action has arisen, or if you are a Subscriber, the date of your last payment under the Agreement, whichever is later.

The Services may be subject to export laws and regulations of the United States and other jurisdictions. You may not permit users to access or use the Services in a U.S.- embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes MAXIO to be in violation of U.S. export laws, even if the use is permitted the laws applicable to you or your user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.

17. ENTIRE AGREEMENT; INTERPRETATION

This Agreement comprises the entire agreement between You and MAXIO with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. In the event of a conflict between these Terms, any Supplemental Terms of Service, and any Order, the following order of precedence shall apply: (i) the Supplemental Terms of Service, but only with respect to the Services governed thereby; (ii) the applicable Order; and (iii) these Terms. You acknowledge that any pre-printed terms and conditions on or attached to Your purchase orders will be of no force or effect.

The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. The deemed unenforceability of any part of this Agreement in any circumstance will not affect the remainder of the Agreement. The parties agree that the Agreement should not be more strictly construed against one party than the other.

18. ASSIGNMENT

If You are a Subscriber, this Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) an entity controlled by, controlling or under common control with the assigning party, (ii) the acquirer of all or substantially all of the assignor’s assets, or (iii) a successor by merger; provided, however, that any actual or proposed change in control of You that results or would result in a direct competitor of MAXIO directly or indirectly owning or controlling 50% or more of You shall entitle MAXIO to terminate this Agreement immediately upon written notice. You agree to provide MAXIO with prompt written notice of any assignment.

If You are an End User, this Agreement is personal to you and may not be assigned by you to any person; MAXIO may freely assign this Agreement without your consent.

Any purported assignment in violation of the foregoing will be void. This Agreement will inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. Other than the indemnified parties described in Section 11 of these Terms, there are no third party beneficiaries to this Agreement.

19. MODIFICATIONS & AMENDMENTS

MAXIO RESERVES THE RIGHT TO CHANGE THESE TERMS AT ANY TIME BY POSTING REVISED TERMS ON THIS WEBPAGE OR BY SENDING AN EMAIL TO ADMINISTRATIVE USERS ON THE SUBSCRIBER’S ACCOUNT LISTED ABOVE. ALL SUCH CHANGES WILL APPLY TO MAXIO’S SUBSCRIBERS AND USERS GENERALLY. THE CHANGES WILL BE EFFECTIVE UPON THE (i) EXECUTION OF A NEW ORDER AT LEAST 5 DAYS AFTER THE DATE OF SUCH POSTING OR EMAIL OR (ii) ANY RENEWAL OF AN EXISTING ORDER AT LEAST 35 DAYS AFTER THE DATE OF SUCH POSTING OR EMAIL. A SUBSCRIBER’S USE OR CONTINUED USE OF THE SERVICES FOLLOWING SUCH NEW ORDER OR RENEWAL WILL CONSTITUTE SUBSCRIBER’S ACCEPTANCE OF THE CHANGED TERMS. For End Users, an End User’s use or continued use of the Services following posting of any updated Terms will constitute such End User’s acceptance of the changed terms.

We may amend or otherwise modify all or a portion of the Privacy Policy from time to time. The revised Privacy Policy will be available on the MAXIO Website, and we may also provide Your administrative users (as identified in Your Account) with notice of such changes by e-mail. You are responsible for periodically reviewing the Privacy Policy as posted on the Website. Amendments and modifications to the Privacy Policy will be deemed effective once posted online. Your continued use of the Services following any modification constitutes Your acceptance of the modified terms, except to the extent that (i) other notice or consent is required by Applicable Law; or (ii) such change has a material adverse impact on You and You do not agree to the change, in which case You may terminate this Agreement by giving at least thirty (30) days prior written notice to MAXIO (such termination notice to be sent at the latest 60 days after such change was posted to the Website). You are not entitled to object to, and shall not have the rights set out in this clause, for any change that MAXIO implements in order to comply with Applicable Law. For such imposed changes shorter notice periods may be applied by MAXIO as is need to comply with the relevant requirement.

Except as set forth in this Section 19 or otherwise in the applicable Supplemental Terms or an Order, no waiver, amendment or modification of any provision of this Agreement will be effective unless it is in writing, refers to the Agreement, and is executed by both parties.

20. PUBLICITY

If You are a Subscriber, You agree that MAXIO may include identification of you as a customer on MAXIO's website, provided that such identification is no more prominent than the identification of MAXIO’s other customers and is otherwise consistent with MAXIO’s practice of identifying its customers on its website at the time. Except as otherwise provided herein, each party agrees to submit to the other party all press releases and other publicity matters or materials relating to this Agreement, or mentioning or implying the trade names, logos, trademarks or service marks of the other party, and each party further agrees not to publish or use such press releases or publicity matters or materials, without the other party’s prior written consent except to the extent that a Party determines that a disclosure is required by applicable law.

21. AUTHORITY

If this Agreement is being accepted by any individual for a Subscriber, then You represent, warrant and attest that such individual has the authority to execute this Agreement on Your behalf.