Subscription Agreement

This Subscription Agreement (“Agreement”) is between Loft Labs, Inc. (“Loft”) and the individual or entity signing or electronically accepting this Agreement or any Order Form referencing this Agreement (“Customer”). This Agreement is entered into on the earlier of (a) Customer signing or electronically accepting this Agreement, (b) Loft and Customer executing an Order Form referencing this Agreement, or (c) Customer is given access to the Software or Services (“Effective Date”).

The parties agree as follows:

1. DEFINITIONS

“Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where "control" means the ownership of at least fifty percent (50%) of the voting interests of such entity or the powers to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.

“Authorized Reseller” is a reseller, dealer, channel partner, distributor or other person or business entity that is enabled and authorized by Loft to sell Subscriptions of Software and/or Services.

“Authorized User” is an employee, contractor, or other third-party individual authorized by Customer to access and use the Software as permitted herein. Any Authorized User must be over the age of eighteen (18) years old.

“Designated National” is any individual, group, or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or on the U.S. Department of Commerce’s Table of Denial Orders. The list of Designated Nationals is subject to change without notice.

“Documentation” means the written and/or electronic end user technical documentation, usage guides and policies, as updated from time to time, pertaining to the Software as provided and/or made available by Loft.

“Embargoed Countries” refers collectively to countries to which the United States maintains an embargo. The list of Embargoed Countries is subject to change without notice.

“Fees” means those fees for Subscriptions, Services, or otherwise as set forth in an Order Form.

“Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, modifications or corrections thereto, including all derivative works, renewals, extensions and restorations, now or hereafter in force and effect worldwide.

“Loft Marks” means Loft and/or its Affiliates’ trademarks, logos, trade names, service marks, domain names and all other proprietary identifiers used by Loft in connection with the Software or Services.

“Order Form” means an ordering document or online order that is entered into between the parties specifying the Software and/or Services being purchased hereunder, including the Subscription, Subscription Term, Fees and other applicable transaction details.

“Product Features” means the capacity, functionality, feature, storage and/or other elements for the Software and/or Services as set forth in an Order Form.

“Product Limits” means any maximum usage quotas that limit certain aspects of the Product Scope for the Software and/or Services as set forth in an Order Form or as may be altered by a Software Add-On.

“Product Scope” means the details of the Software and/or Services as set forth in an Order Form, which may include Product Features, Product Limits, Software Add-Ons and/or deliverables for any Services.

“Services” means any work performed by Loft to provide assistance or other services to the Customer and/or any Authorized User, including Support Services and other services, as set forth in an Order Form.

“Software” means proprietary software and other branded offerings made available by Loft or its Affiliates, including any applicable Software Add-Ons.

“Software Add-On” means additional capacity, functionality, feature, storage and/or other elements for the Software that Customer may purchase for additional Fees.

“Software Updates” means modifications, improvements, patches, upgrades, or other changes to the Software provided or made available by Loft to the Customer.

“Subscription” means the Customer’s ability to use the Software and/or receive Services, including the Product Scope, Subscription Term and any additional terms, conditions, and limitations as set forth in an Order Form and this Agreement.

“Subscription Start Date” means, unless otherwise agreed to in writing by the parties, the start date of a Subscription as set forth in an Order Form.

“Support Services” means technical support for Software provided by Loft as set forth in an Order Form.

“Supported Release” is a version of the Software that is identified by Loft, in its sole discretion, as being eligible to receive Support Services.

“Third-Party Software” means any software created by any party other than Loft.

“Third-Party System” means any computer systems operated and managed by any party other Loft.

2. LICENSE

2.1 License. Subject to the terms and conditions of this Agreement and solely during the applicable Subscription Term, Loft grants Customer a limited, non-transferable, non-exclusive, and non-sublicensable license to download, install, run, access, and use the Software solely for the Customer’s internal business purposes (the “Permitted Purpose”) in accordance with the terms of the Subscription as set forth in the applicable Order Form. To the extent Loft provides any Software Updates, such Software Updates will be considered part of the Software licensed to the Customer under this Section 2.1.

2.2 Restrictions on Use. Except as expressly authorized herein and to the maximum extent permitted by applicable law, Customer shall not, and shall not permit any third party to, directly or indirectly: (a) use the Software for any purpose other than the Permitted Purpose; (b) allow any person or legal entity other than Authorized Users to access or use the Software; (c) copy, modify or create derivative works of the Software, or any part, feature, function or user interface thereof; (d) reverse engineer, decompile, translate, disassemble, or discover the source code, underlying ideas, algorithms, file formats, programming or interoperability interfaces of all or any portion of the Software; (e) remove or modify any copyright, trademark or other proprietary rights notices or markings that appear on or in the Software or Documentation; (f) distribute, disclose, market, lease, resell, assign, loan, sublicense, rent or transfer the Software to any third party; (g) use the Software in any service bureau arrangement, facility management, time share or similar services to third parties; (h) merge the Software into another product; (i) circumvent, disable or otherwise interfere with the performance of the Software, security-related features of the Software or features that enforce limitations on use of the Software; (j) transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or through the Software; (k) disclose the results of any performance benchmarks or test results of the Software to any third party without Loft’s prior written consent; (l) access or use the Software for the purpose of developing products or services competitive with the Software; or (m) access, use or export the Software, or any portion thereof, in a manner that does not comply with the Documentation, Lofts’s written instructions or specifications, or applicable law, regulations, or governmental orders.

2.3 Customer Responsibilities. Customer will (a) be solely responsible for Authorized Users’ compliance with this Agreement, Documentation and Order Forms and liable for any breach thereof; (b) use commercially reasonable efforts to prevent unauthorized access to, disclosure or use of the Software and Services; (c) notify Loft promptly of any unauthorized access, disclosure, or use of the Software or Services; and (d) reasonably cooperate with Loft to promptly cure any unauthorized access, disclosure or use of the Software or Services.

2.4 Suspension. Loft may suspend Customer’s and/or Authorized Users’ access to and use of the Software or Services if (a) Loft reasonably believes Customer or any of its Authorized Users are in breach of any restrictions set forth in Section 2.2 (Restrictions on Use) or (b) Customer breaches Section 5 (Fees) and fails to cure such breach within ten (10) days of receipt of written notice.

2.5 Changes to Software or Services. Loft may make changes to Software or Services, provided that any modifications to Software or Services will not materially reduce or diminish the core functionality, performance, or usability of the Software or Services. During the Subscription Term, Loft may introduce optional improvements or additional services that would require Customer to pay additional fees to use.

2.6 Third Party Software and Third Party Systems. Customer’s use of any Third-Party Software or Third-Party System is governed by the terms of the applicable license and/or other agreement governing such Third-Party Software or Third-Party System and not the terms of this Agreement. LOFT ASSUMES NO OBLIGATION OR LIABILITY THAT MAY ARISE WITH RESPECT TO SUCH THIRD-PARTY SOFTWARE, THIRD-PARTY SYSTEM OR THE CUSTOMER’S USE OR INABILITY TO USE THE SAME.

2.7 Optional Beta Software. From time to time, Loft may make available to Customer, at no charge, Software (or functionality of Software) that is designated as “alpha”, “beta”, “non-production”, “preview”, “experimental”, or similarly identified prior to general commercial release (“Beta Software”). Beta Software is intended for testing and evaluation purposes only and may be subject to additional terms. Customer may accept or decline any such Beta Software in its sole discretion. Customer acknowledges that any Beta Software is provided on an “as is” and “as available” basis without any warranty, support, maintenance, Performance Warranty, or storage obligations of any kind. Customer acknowledges that Beta Software is used by and available at Customer’s sole risk, and it may contain bugs, errors, and other defects for which Loft will not be liable. Any Feedback Customer provides with regards to Beta Software is subject to Section 7.3 (Feedback) below.

3. LOFT OBLIGATIONS

3.1 Delivery. Loft will make the applicable Software available to Customer on the Subscription Start Date and provide applicable Services as set forth in the Order Form.

3.2 Support. Loft will use commercially reasonable efforts to provide Customer with Support Services for any Supported Release during the Subscription Term as set forth in the Order Form. The scope of any Support Services provided by Loft is strictly limited to the Software set forth in the Order Form to which the Support Services refer. Customer acknowledges that Loft will not provide support for (a) any Software not explicitly included as applicable in the Order Form, including any Third-Party Software or Third-Party System; (b) any Software that is not part of a Supported Release; or (c) any modifications, alterations or derivative works of the Software made by Customer or any third party.

4. TERM & TERMINATION

4.1 Term. This Agreement commences on the Effective Date and continues until ninety (90) days after the expiration or termination of all Subscriptions unless terminated earlier as set forth herein.

4.2 Subscriptions. Unless terminated earlier as set forth herein, each Subscription shall start on the Subscription Start Date and continue for twelve (12) months unless the term length is otherwise agreed to in an Order Form (“Initial Term”), and automatically renew for successive twelve (12) month terms (each, a “Renewal Term”; together with the Initial Term, the “Subscription Term”) unless (a) the Order Form states otherwise; or (b) either party provides written notice of its intent not to renew to the other party no less than thirty (30) days prior to the expiration of the current Subscription Term. Except as set forth in an applicable Order Form, Fees for a Renewal Term shall be at Loft’s list price in effect on the start date of the applicable Renewal Term.

4.3 Material Breach; Insolvency. Either party may terminate this Agreement and any Order Form if: (a) the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days after receipt of written notice; or (b) the other party terminates its business activities or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or an assignment for the benefit of creditors. Notwithstanding the foregoing, Loft may terminate any Subscription, Order Form or this Agreement if Customer fails to pay Fees when due and does not remedy such failure within ten (10) days after receipt of written notice.

4.4 Effects of Termination. Upon expiration or termination of this Agreement or any Subscription: (a) Loft will terminate Customer’s access to the Software; (b) the licenses for the Software granted under this Agreement shall terminate; (c) Customer and Authorized Users shall cease all use of the Software; and (d) Customer will promptly return or destroy all copies and embodiments of the Software and certify in writing that no copies remain in Customer’s or its Authorized Users’ possession or control. If this Agreement is terminated by Customer pursuant to Section 4.3, Loft will refund Customer any prepaid Fees for the prorated portion of the unused Subscription Term. If the Agreement is terminated by Loft pursuant to Section 4.3, Customer will pay any unpaid Fees on all Order Forms. In no event shall termination relieve Customer of its obligation to pay any Fees payable to Loft for the period prior to the effective date of termination.

4.5 Survival. Sections 1 (Definitions), 2.2 (Restrictions on Use), 4.4 (Effects of Termination), 4.5 (Survival), 5 (Fees), 6.2 (Disclaimer), 7 (Intellectual Property Rights), 8 (Confidentiality), 9 (Limitation of Liability), 10 (Indemnification), and 11 (Miscellaneous) will survive the expiration or termination of this Agreement

5. FEES

5.1 Orders. Customer may purchase Software and/or Services directly from Loft or through an Authorized Reseller. With respect to purchases direct from Loft, such Order Form is hereby incorporated into this Agreement by reference. The parties hereby agree to the terms and conditions stated within this Agreement and those found within an Order Form to the exclusion of all other terms. The parties agree that all terms stated within any purchase order, invoice, acknowledgment or other similar document, shall be null and void and each party expressly rejects all additional or conflicting terms or conditions.

5.2 Fees. Customer will pay all applicable Fees, including those set forth in Order Forms and for any applicable Renewal Terms, without any right of set-off or deduction. Except as set forth in an applicable Order Form, all Fees for Subscriptions are due and payable immediately upon the Subscription Start Date or the start date of each Renewal Term, as applicable. Except as expressly set forth in this Agreement or an applicable Order Form, all payment obligations are non-cancellable, and Fees paid hereunder are non-refundable.

5.3 Taxes. Fees do not include any taxes, levies, tariffs, duties or similar governmental assessments of any nature, including national, state or provincial tax, value-added tax, sales tax, use tax or similar taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Fees without withholding or deduction, except for taxes payable on Loft’s net income. If Loft has the legal obligation to withhold, deduct, pay or collect Taxes for which Customer is responsible under this section, Loft will invoice Customer and Customer will pay that amount unless Customer provides Loft with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4 Reseller Orders. To the extent that Customer purchases any Subscription through an Authorized Reseller: (a) except as set forth in this Section 5.4, the provisions of this Agreement, and the obligations, representations, warranties, indemnities, and liabilities herein shall exclusively apply to Subscriptions acquired from or through Authorized Resellers; (b) Sections 5.2 (Fees), 5.3 (Taxes) and 5.5 (Affiliate Orders) will not apply; (c) Loft and Authorized Reseller will enter into an Order Form in which Authorized Reseller shall purchase the Subscription(s) on behalf of Customer and pay the applicable Fees to Loft; (d) Loft will not be bound by any commitment, agreement or understanding entered into between Customer and Authorized Reseller; (e) Loft shall not be liable for any acts or omissions of Authorized Reseller; and (f) any failure of Authorized Reseller to pay Loft applicable Fees shall be considered a breach of this Agreement by Customer, entitling Loft to collect payment directly from Customer without limiting Loft’s rights or remedies set forth in this Agreement or permitted by applicable law. If Loft provides Customer a refund under this Agreement, Loft will issue the refund to the Authorized Reseller and require the Authorized Reseller to refund Customer based on the amount the Authorized Reseller received from Customer for the refunded portion of the Subscription.

5.5 Affiliate Orders. Customer Affiliates may enter into an Order Form with Loft which references this Agreement unless Customer indicates otherwise in writing. Customer shall be liable for any breach of this Agreement by its Affiliates. If Customer Affiliate executes an Order Form with Loft, then that Customer Affiliate will act as “Customer” for sections 5.2 (Fees) and 5.3 (Taxes).

5.6 Overdue Fees. If any Fee is not received by Loft by the due date, then without limiting Loft’s rights or remedies, those amounts may accrue late interest at the rate of two percent (2.0%) per month or the maximum rate allowed by the applicable law, whichever is lower, until fully paid. Customer will pay all costs and expenses of collection incurred by Loft, including reasonable attorneys’ fees and expenses

5.7 Currency. Except as expressly provided in the Order Form, Fees are quoted in United States dollars and Customer will pay Fees in United States dollars.

6. WARRANTY

6.1 Limited Warranty.  Loft warrants that during the Subscription Term, the Software will perform substantially in accordance with the applicable Documentation (“Performance Warranty”). The Performance Warranty only applies to errors causing failures in operation of the Software as made generally available and does not apply if: (a) it is caused by the combination, operation or use of the Software with software, hardware or other materials not authorized by Loft; (b) the Software is used in violation of this Agreement or not in accordance with the Documentation; (c) it is caused by repairs, modifications or alterations of the Software without Loft’s prior written approval; (d) the Software is not part of a Supported Release; or (e) it would have been avoided by the use of an updated version of the Software made generally available. Loft shall use reasonable efforts to cure any breach of the Performance Warranty within thirty (30) days of receipt of written notice from Customer. If Loft cannot remedy the Performance Warranty breach within this time period, Customer may terminate this Agreement and/or the applicable Subscription upon written notice and receive a prorated refund for the unused portion of the Subscription Term as its sole and exclusive remedy for breach of the Performance Warranty.

6.2 Disclaimers. EXCEPT AS SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND THE SERVICES ARE PROVIDED “AS AVAILABLE”, WITHOUT ANY WARRANTIES OF ANY KIND, AND LOFT AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 Ownership. Subject to the limited rights expressly granted hereunder, Loft, its Affiliates and/or its licensors, as applicable, reserve all their right, title and interest in and to the Software, Services, Documentation, and all portions thereof, including any improvements and all associated Intellectual Property Rights. No rights are granted to Customer hereunder other than expressly set forth herein.

7.2 Loft Marks. All right, title, and interest in and to the Loft Marks, including associated Intellectual Property Rights, are reserved by and shall remain with Loft and/or its Affiliates. No right, license or other interest in or to the Loft Marks is granted hereunder, and Customer shall not use the Loft Marks without Loft’s prior written consent.

7.3 Feedback. Customer grants to Loft and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the Software or Services.

7.2 Customer Reference. Except as set forth otherwise in the Order Form, Customer grants to Loft and its Affiliates the right to identify Customer as a customer, including use of Customer’s name and logo, on Loft’s websites, marketing and promotional materials, and other public communications.

8. CONFIDENTIALITY

8.1 Definition. “Confidential Information” means all technical, business, financial, and other information of one party (“Discloser”), whether oral, written, or other tangible form, that is disclosed to or observed by the other party (“Recipient”) in connection with this Agreement, which at the time of disclosure is clearly marked as “Confidential” or “Proprietary” or is reasonably identifiable as confidential given the nature of the information or circumstances of disclosure. All Software, Documentation and information related thereto is Confidential Information of Loft. Confidential Information will not include information that Recipient can demonstrate by its written records: (a) is or becomes generally known to the public without Recipient’s breach of this Agreement; (b) was in its possession or already known to Recipient at time of disclosure; (c) was developed independently without use of or reference to the Discloser’s Confidential Information; and (d) was rightfully disclosed to Recipient by a third party without breach of confidentiality obligations. As between the parties, each party retains all ownership rights in and to its Confidential Information.

8.2 Use and Non-Disclosure. Recipient shall: (a) protect Discloser’s Confidential Information using the same degree of care Recipient uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care; (b) use Confidential Information solely to exercise rights and fulfill obligations under this Agreement; and (c) only disclose Confidential Information to its Affiliates, employees, officers, directors, contractors, professional advisors, or consultants (collectively, “Representatives”) who (i) “need to know” the Confidential Information in connection with rights and obligations under this Agreement and (ii) are bound by confidentiality obligations no less stringent than those in this Agreement.  Recipient shall be liable for any breach of this Agreement by its Representatives.

8.3 Compelled Disclosure. Recipient may disclose Confidential Information to the extent required by applicable law, regulatory authority, or a court of competent jurisdiction (“Compelled Disclosure”), provided that Recipient (a) gives prompt written notice to Discloser of such Compelled Disclosure when legally permissible, (b) reasonably cooperates with Discloser, at Discloser’s expense, in seeking a protective order or otherwise preventing or restricting such disclosure, and (c) only discloses that portion of Confidential Information required to comply with the Compelled Disclosure.

8.4 Return or Destruction of Confidential Information. Upon Discloser’s written request, Recipient shall promptly return or destroy all documents and materials containing Confidential Information of Discloser in its possession or under its control, including all copies, notes and extracts. Recipient shall confirm in writing to Discloser the completion of the return or destruction of Confidential Information. Notwithstanding the foregoing, Recipient may maintain copies of the Confidential Information as required for legal or regulatory purposes or as part of its standard archival or computer back-up systems, provided that such Confidential Information shall continue to be subject to the terms of this Agreement.

9. LIMITATION OF LIABILITY

9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, REVENUE, GOOD WILL OR BUSINESS INTERRUPTION), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND LICENSORS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT THIS SECTION 9.2 SHALL NOT APPLY TO: (A) A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS; (C) CUSTOMER’S BREACH OF SECTION 2 (LICENSE); OR (D) CUSTOMER’S PAYMENT OBLIGATIONS TO LOFT.

10. INDEMNIFICATION

10.1 Indemnification by Loft. Loft will defend Customer against any claim, demand, suit, action, or proceeding made or brought against Customer by a third party alleging that the Software infringes or misappropriates such third party’s the Intellectual Property Rights (a “Customer Claim”) and will indemnify and hold Customer harmless from any damages, losses, liabilities, reasonable attorneys’ fees, expenses and costs finally awarded against Customer as a result of a Customer Claim or for amounts paid by Customer under a settlement agreement approved by Loft in writing. This Section 10.1 does not apply if the Customer Claim arises from (a) modifications of the Software or any part thereof not made or authorized in writing by Loft but solely to the extent the alleged infringement is caused by such modification; (b) the use or combination of the Software or any part thereof with Third-Party Software, Third-Party Systems, or other products, processes or materials not provided by Loft but solely to the extent the alleged infringement is caused by such use or combination; (c) Customer’s continued use of the Software after Loft has provided or made available substantially equivalent software that would have avoided the alleged infringement; or (d) Customer’s use of the Software in breach of this Agreement and/or applicable Order Forms. Notwithstanding the foregoing, in the event of a Customer Claim, Loft may in its sole discretion and at no cost to Customer: (i) modify the Software to make it non-infringing provided there is no material loss of functionality; (ii) procure the right for Customer to continue using the Software in accordance with this Agreement; or (iii) terminate the applicable Subscription(s) and refund a pro-rata portion of the amount paid by Customer for such Subscription for the unused portion of the Subscription Term. This Section 10 states Loft’s sole liability to Customer and Customer’s exclusive remedy against Loft for any Customer Claim.

10.2 Indemnification by Customer. Customer will defend Loft and its Affiliates against any claim, demand, suit, action, or proceeding made or brought against Loft or its Affiliates by a third party arising from or in connection with (a) Customer’s use of the Software or Services in an unlawful manner or in violation of this Agreement, Documentation or Order Form; (b) Customer’s negligence or willful misconduct; or (c) the use of data or information by or on behalf of Customer in connection with or generated by use of the Software or Services (each, a “Loft Claim”), and will indemnify and hold Loft and its Affiliates harmless from any damages, losses, liabilities, reasonable attorneys’ fees, expenses and costs finally awarded against Loft or its Affiliates as a result of a Loft Claim or for amounts paid by Loft or its Affiliates under a settlement agreement approved by Customer in writing. The above defense and indemnification obligations do not apply to the extent a Loft Claim arises from Loft’s breach of this Agreement, Documentation and/or applicable Order Forms.

10.3 Process. The party seeking indemnification (“Indemnified Party”) shall provide the other party (“Indemnifying Party”) prompt written notice of a claim subject to Section 10. The Indemnifying Party shall have sole control and authority over the defense and/or settlement of the claim, provided that the Indemnified Party may join in defense with counsel of its own choice at its own expense. The Indemnified Party shall provide the Indemnifying Party all reasonable assistance at the Indemnifying Party’s expense in the defense, investigation and/or settlement of the claim. The Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement or compromise requiring the Indemnified Party to admit liability, pay money or take (or refrain) from any action without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, conditioned or delayed

11. MISCELLANEOUS

11.1 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties regarding the subject matter hereof and supersedes all prior written or oral agreements, proposals, representations, or understandings. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

11.2 Conflicts. The terms of this Agreement shall take precedence over any conflicting terms in an Order Form unless expressly set forth to the contrary in such Order Form.

11.3 Compliance with Laws. Each party shall comply, at its own expense, with all applicable local, state, national and international laws and regulations, including without limitation laws regarding data protection, security and privacy and with all governmental approvals, licenses, permits and authorizations which may be required with regards to its rights and obligations hereunder.

11.4 Authority. Each party hereto represents and warrants that (a) it has obtained all necessary approvals, consents and authorizations of third parties and governmental authorities, if applicable, to enter into this Agreement and to perform and carry out its obligations under this Agreement; (b) the persons executing this Agreement on its behalf have express authority to do so, and, in so doing, to bind the party thereto; (c) it has the authority to grant all licenses and rights to the other party as set forth in this Agreement; (d) the execution, delivery, and performance of this Agreement does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party; (e) the execution, delivery and performance of this Agreement has been duly authorized by all necessary partnership or corporate action and this Agreement is a valid and binding obligation of such party, enforceable in accordance with its terms; and (f) it has not been induced to enter into such Agreement by any representations or statements, oral or written, not expressly contained herein or expressly incorporated by reference.

11.5 Export Compliance. The Software, Services, other Loft technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer is solely responsible for obtaining any and all required governmental authorizations, including without limitation, any export or import licenses and foreign exchange permits. Loft and Customer each represents that it is not on any U.S. government denied-party list. Customer will not and will not permit any Authorized User to access or use the Software or Services in any Embargoed Country, by any Designated National, or in violation of any U.S. export law or regulation.

11.6 Notices. Except as set forth herein, any notice required or permitted by this Agreement must be in writing and shall be effective upon receipt when personally delivered, sent by recognized overnight delivery service, or sent by certified or registered mail (return receipt requested), postage prepaid, to the address of the party set forth in the most recent Order Form or to any other address designated by prior written notice. Any notices to Loft shall also include a copy to Legal@loft.sh.

11.7 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees as well as all employment-related taxes.

11.8 Injunctive Relief. The parties agree that a breach or threatened breach of confidentiality obligations or Intellectual Property Rights may cause irreparable harm for which there may be no adequate remedy at law. The non-breaching party shall be entitled to seek equitable relief, in addition to any other remedies available to it at law, without the need to prove irreparable harm or post a bond or other security in any court of competent jurisdiction worldwide.

11.9 Force Majeure. Except for payment obligations, neither party will be liable to the other for a failure to perform any of its obligations under this Agreement due to circumstances beyond its reasonable control, provided such party promptly notifies the other of the delay.

11.10 Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California, excluding any conflict of laws principles or rules and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The competent state or federal courts in San Francisco, California shall have sole and exclusive jurisdiction over all disputes arising from or relating to this Agreement. The parties agree and submit to the personal jurisdiction and service of process rules of such courts for litigating any such dispute. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees.

11.11 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that each party may assign this Agreement to its Affiliate or in connection with a merger, acquisition, sale of all or substantially all of its assets, or any similar transaction of such party. The parties’ rights and obligations under this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.12 Severability; Waiver; Modification. If any term of this Agreement is or becomes invalid, illegal or unenforceable, the rest of the Agreement will remain in effect. No failure of either party to enforce any rights under this Agreement shall act as a waiver of such rights. No modification or recission of this Agreement shall be binding unless executed in writing by the party to be bound.

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