SOFTWARE-AS-A-SERVICE (SAAS) AGREEMENT

v.120524

This online Software-as-a-Service (SaaS) Agreement (including any Order Forms, the “Agreement”) applies to sales made by i2H, Inc. dba “Ambassador”, a Delaware corporation, to the customer executing an Order Form or similar instrument (“Customer”). As of the date of full execution of such Order Form (the “Effective Date”), Ambassador and Customer agree as follows:

INTRODUCTION.

Ambassador provides an end-to-end solution to create, track and manage referral programs.

1. DEFINITIONS.

“Ambassador API” means the Ambassador application programming interface, scripts, widgets, embeddable snippets and other tools that allow Customer to integrate with Ambassador’s referral system.

“Ambassador Services” means, collectively, the Hosted Service, Platform, Ambassador API, and Documentation.

“Customer Website” means the website owned and operated by Customer as set out in the applicable Order Form.

“Customer Campaign” means any Customer program or campaign, including but not limited to any referral, loyalty, incentives, and/or email campaign built in the Hosted Service, as operated through the Ambassador Services.

“Data” means all data and information created, received, or processed by Ambassador in performing the Ambassador Services for Customer, or that result from performance of the Ambassador Services for Customer, with the exception of data and information contained in Ambassador Services.

“Documentation” means any user guide, help information and other documentation and information regarding the Hosted Service that is delivered by Ambassador to Customer in electronic or other form, as applicable, including any updates provided by Ambassador from time to time.

“Hosted Service” means the real-time website analytics service (currently branded the Customer-Led Growth service or platform) hosted by Ambassador and provided to Customer. The Hosted Service includes any change, update, improvement, extension or other new version thereof made available to Customer.

“Platform” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Ambassador in providing the Ambassador Services.

2. AMBASSADOR SERVICES.

2.1 Order Forms. This Agreement will be implemented through one or more written and signed orders that reference this Agreement and contain such information as generally illustrated in Exhibit A attached hereto (“Order Forms”). Any change to the terms of this Agreement within an Order Form will apply only to the Ambassador Services described therein. Ambassador may provide the Ambassador Services directly, or indirectly using contractors or other third-party vendors or service providers. Ambassador agrees that it shall be fully responsible for performance of Ambassador Services for Customer by any such third-party contractors, vendors or service providers.

2.2 Hosted Service. Subject to all terms and conditions of this Agreement, Ambassador will use commercially reasonable efforts to operate the Platform to assure the Hosted Service is available to Customer in accordance with the service levels attached hereto as Exhibit B. Customer may use the Documentation solely in connection with the Hosted Service. Ambassador reserves the right to modify the Hosted Service (in whole or in part) at any time, provided that Ambassador will not materially reduce the functionality of the Ambassador Services.

2.3 API License. If indicated in the applicable Order Form and subject to Customer’s compliance with this Agreement, Ambassador hereby grants Customer a non-exclusive, non-transferable license to access and use the Ambassador API solely in connection with its use of the Ambassador Services.

2.4 Support. Ambassador will use commercially reasonable efforts to provide Customer with technical support and updates for the Hosted Service as set forth in Exhibit B attached hereto.

2.5 Limitations. Ambassador will not be responsible or liable for any failure in the Ambassador Services resulting from or attributable to (a) usage in excess of the usage for which Customer has ordered pursuant to an applicable Order Form, (b) Customer’s failure to add JavaScript or use the API in accordance with Ambassador’s requirements, (c) failures in any telecommunications, network or other service or equipment that are not within Ambassador’s reasonable control, (d) Customer's products, services, negligence, acts or omissions, (e) any force majeure or other cause beyond Ambassador's reasonable control, (f) scheduled maintenance in accordance with Exhibit B, or (g) unauthorized access, breach of firewalls or other hacking by third parties (except to the extent such access, breach or hacking is caused by Ambassador’s gross negligence or willful misconduct).

2.6 Privacy & Protections. Each party will comply with any applicable data protection legislation existing in all jurisdictions in which the Ambassador Services are performed (together, the “Data Protection Laws”).  The parties agree that provision of the Ambassador Services may involve the collection, processing, storage or recording of certain “Personal Data” or “Personal Information” (as defined by applicable Data Protection Laws and referred to collectively herein as “Personal Data”) of Customer and participants. Where applicable under Data Protection Laws, the parties acknowledge Ambassador acts as a “Data Processor” in relation to the Personal Data it processes on Customer’s behalf and Customer remains the “Data Controller” with respect to such Personal Data. Ambassador hereby undertakes that it will (i) use Personal Data only to provide and administer the Ambassador Services as outlined in the applicable privacy statement(s) referenced below; (ii) process the Personal Data in accordance with Customer’s instructions; (iii) implement appropriate security measures designed to provide a commercially reasonable level of protection of the Personal Data; (iv) implement and maintain commercially reasonable technical and organizational measures, insofar as is possible, for the fulfillment of Customer’s obligations to respond to requests by users of the Ambassador Services (“Data Subjects”); (v) take commercially reasonable steps to destroy or permanently de-identify Personal Data when it no longer is necessary to retain it; and (vi) ensure that its personnel authorized to process Personal Data are bound to appropriate confidentiality obligations.  Personal Data may be collected, processed and/or stored by Ambassador or its third-party suppliers in the United States of America, the United Kingdom, the European Union and the rest of the world. Customer represents and warrants it has a valid lawful basis for Ambassador to process the Data Subjects’ Personal Data in connection with the Ambassador Services in accordance with applicable Data Protection Laws.  Ambassador processes Personal Data in accordance with the applicable privacy policies set forth at https://www.getambassador.com/privacy (or successor website).

2.7 Customer Responsibilities. Customer is responsible for maintaining the confidentiality of Customer’s accounts, owner numbers, access codes, passwords and personal identification numbers used with the Ambassador Services, and for all authorized or unauthorized use of the Ambassador Services in association with Customer’s accounts including, but not limited to, unintended Customer usage due to holidays, daylight savings, computer clock errors or similar circumstances. Customer will immediately notify Ambassador if it becomes aware of any unauthorized use of Customer’s accounts. Customer will provide information reasonably requested and required by Ambassador to perform the Ambassador Services. As between Customer and Ambassador, Customer is the sole owner and is solely responsible for all such information and for all content provided to Ambassador, including all audio, visual, electronic or written communications (collectively “Customer Content”) on Customer’s accounts. Customer warrants that Customer is solely responsible for the content and rights to Customer Content. Customer will comply with applicable all laws, rules and regulations while using the Ambassador Services, and ensure it has the right to use the Ambassador Services where Customer is located and where any of its users or invitees are located. Customer will not (i) transmit any communication that violates any applicable law, rule or regulation; (ii) violate any third-party rights in the course of using the Ambassador Services; (iii) use the Ambassador Services in any way that damages Ambassador’s property or interferes with or disrupts Ambassador’s system(s) or other users; or (iv) transmit, upload, receive or store on or through Ambassador’s network any Customer Content or other material that contains any viruses, worms, “Trojan Horses” or other code features that may damage, disrupt or disable computers, networks or any information thereon. Customer acknowledges and agrees Ambassador does not control or monitor Customer Content and does not guarantee the accuracy, integrity, security or quality of Customer Content.

3. PROPRIETARY RIGHTS.

3.1 Data. Customer shall own all rights in and to any Data. Customer hereby grants to Ambassador a worldwide, non-exclusive, royalty-free license to use, reproduce, transmit and distribute the Data solely as necessary for Ambassador to provide the Ambassador Services provided under each Order Form. Subject to the foregoing, Customer retains all right, title and interest in and to the Data. Customer agrees to not reverse engineer, decompile, disassemble, translate or attempt to learn the source code of any software related to the Ambassador Services. Customer will not use the Ambassador Services contrary to or outside of the technical limitations provided or approved by Ambassador. Customer may not resell, license or sublicense the Ambassador Services. Notwithstanding any of the foregoing, Ambassador may collect usage data, query data and other aggregated or de-identified data in connection with Customer’s use of the Ambassador Services. Ambassador and its affiliates may use such data for purposes of improving its products and services (e.g., corroborating the data in Ambassador’s databases) and/or for benchmark reporting and analytics. Provided that (i) such data does not identify, relate to, describe, present a capability of being associated with, or risk being reasonably linked with, directly or indirectly, a particular person, entity, household, or Customer, (ii) Ambassador does not seek to re-identify such data, and (iii) such data do not reveal any confidential information of Customer, Ambassador may also collect, retain, disclose, distribute and otherwise utilize the foregoing data.

3.2 Ambassador Services. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Ambassador (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Ambassador Services.

Use of the Ambassador Services by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is i2H, Inc. (dba Ambassador), 2212 Queen Anne Avenue North, Suite 759, Seattle, WA 98109.

3.3 Restrictions.

1. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Ambassador's Confidential Information or Ambassador Services to create any service, software, documentation or data that is similar to any aspect of the Ambassador Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Ambassador Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Ambassador Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States, or (f) permit any third party to engage in any of the foregoing proscribed acts.
2. Except as expressly permitted in this Agreement, Ambassador shall not directly or indirectly (a) use any of Customer’s Confidential information or Data except as permitted under this Agreement and as required to provide the Ambassador Services; (b) sublicense, monetize, sell, exploit in any manner, transfer, rent, lease, time-share or use the Data or Customer Confidential Information; (c) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Data and Customer’s Confidential Information; (e) disclose or permit any third party to access Data; or (f) use Data or any part thereof beyond the Term.

4. CONFIDENTIALITY.

Each party may disclose (“Discloser”) Confidential Information to the other party (“Receiver”). Receiver will use Confidential Information only in connection with Ambassador Services performed or received, hold Confidential Information in confidence, and not disclose Confidential Information except to its Affiliates, employees or agents who have need to know such Confidential Information in order to perform such party’s obligations under this Agreement. Receiver is responsible for such parties’ compliance with the confidentiality obligations set forth herein. Confidential Information means all information disclosed by Discloser that is marked as confidential or proprietary or that by its nature or context constitutes information that a reasonable businessperson would treat as proprietary, confidential, or private, even if not so marked. Confidential Information includes the terms of this Agreement and any Order Form, business strategies, marketing plans, industry and competitive information, technology, trade secrets, computer systems, software, analytical procedures, techniques, skills, ideas, models, research, pricing, employee information and financial information of each party and its Affiliates. Confidential Information will not include information (i) generally available to the public other than by Receiver’s breach of this Agreement; (ii) already known to Receiver at the time of disclosure by Discloser; (iii) rightfully received from a third party without restriction on disclosure; or (iv) independently developed by a party without use of Discloser’s Confidential Information. Neither party will have any right in the other party’s Confidential Information and will return or destroy all such Confidential Information upon written request of Discloser, provided that Confidential Information residing on Receiver’s backup, disaster recovery or business continuity systems will not be subject to return or destructions but will continue to be subject to all other terms of this Agreement until destroyed. Receiver may disclose Discloser’s Confidential Information as required by law or court order, provided that Receiver (unless prohibited by law) promptly notifies Discloser and cooperates with Discloser in Discloser’s efforts to challenge the disclosure or seek appropriate protective order.

5. PAYMENTS.

5.1 Fees. Customer will pay all fees specified in each Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are based on subscriptions purchased and outlined in the Order Form (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. At least thirty (30) days prior to the renewal date of any subscription term, Ambassador will notify Customer of any applicable price changes and, if Customer renews its subscription, it shall be deemed to have also accepted such price changes. If Customer exceeds any usage specified in an Order Form or exceeds agreed units or modules, Ambassador will charge Customer an overage fee based on Ambassador’s then-current rates, which will be invoiced and paid as provided in Section 5.2 below.

5.2 Invoicing and Payment. Customer will provide Ambassador with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Ambassador. If Customer provides credit card information to Ambassador, Customer authorizes Ambassador to charge such credit card for all Ambassador Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term and Termination” section below. Such charges shall be made in advance, either (i) annually, (ii) by increments of contacts established by Ambassador (e.g., in minimum increments of 10,000 contacts), or (iii) or in accordance with any different billing frequency stated in the applicable Order Form. Any overage beyond the allotted contacts subscribed for by Customer in its Order Form shall be invoiced to Customer at Ambassador’s standard, non-discounted rates for such contacts. Ambassador also reserves the right to charge a reasonable overage fee for each instance of Customer consuming more than its allotted contacts. If the Order Form specifies that payment will be by a method other than a credit card, Ambassador will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Ambassador and notifying Ambassador of any changes to such information. 

5.3 Overdue Charges. If any invoiced amount is not received by Ambassador by the due date, then without limiting Ambassador’s rights or remedies, (a) those charges may accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Ambassador may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above. 

5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for Ambassador Services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Ambassador to charge to Customer’s credit card), Ambassador may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Ambassador Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Ambassador will give Customer at least 10 days’ prior notice that its account is overdue before suspending Ambassador Services to Customer.

5.5 Payment Disputes. Ambassador will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. 

5.6 Taxes. Ambassador's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes, and complying with all tax reporting obligations (including but not limited to assembling the required information for, and then filing, any 1099-K reports) associated with (a) its purchases and subscriptions hereunder; and (b) its referral programs and Customer Campaigns. If Ambassador has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Ambassador will invoice Customer and Customer will pay that amount unless Customer provides Ambassador with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Ambassador is solely responsible for taxes assessable against it based on its income, property, and employees.

6. LIMITED WARRANTY AND DISCLAIMERS.

6.1 General. Each party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound; and (e) each party will comply with all applicable self-regulatory, industry guidelines, privacy laws, and other applicable laws and regulations.

6.2 Ambassador. Ambassador warrants to Customer that (i) the Ambassador Services will be provided in a professional and workmanlike manner; (ii) the Ambassador Services will perform in accordance with the Documentation in all material respects; and (iii) it will not engage in, nor cause others to engage in, (a) spamming, or (b) improper, malicious or fraudulent marketing activities relating to any Ambassador Services.

7. INDEMNIFICATION.

7.1 Customer Indemnification. Customer will indemnify and hold Ambassador, Ambassador Affiliates and their officers, directors and employees harmless from any and all Claims (as defined in Section 7.2) which arise out of or relate to Customer’s violation of applicable law, Customer Content, Customer-provided systems, hardware, software, data or other materials or devices, or Customer’s use of the Ambassador Services in violation of the terms of this Agreement or Order Form.

7.2 Ambassador Indemnification. Ambassador will indemnify and hold Customer, Customer Affiliates and their officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees and expenses (collectively, “Claims”), which arise out of or result from Ambassador’s violation of applicable law or any Claim against Customer that the Ambassador Services infringe a patent, copyright, trademark or other similar property right in the United States or Canada; provided that Ambassador will have no indemnity obligation to the extent arising from: (i) Customer’s negligence, breach of the Agreement or alteration of the Ambassador Services; (ii) Ambassador Services that are based upon information, design, specifications, directions, instruction, software, data, or material not furnished by Ambassador; (iii) combination of the Ambassador Services with any item not provided by Ambassador; or (iv) third-party services. If such an infringement claim is or is likely to be made, Ambassador will, at its own expense and sole discretion, exercise one or more the following remedies: (1) obtain for Customer the right to continue to use the Ambassador Services consistent with this Agreement; (2) modify the Ambassador Services so they are non-infringing and in compliance with this Agreement; (3) terminate the applicable Ambassador Services without liability for such termination other than (a) the refund of pro-rated amounts prepaid and unused as of the date of termination for the applicable Ambassador Services, and (b) Ambassador’s ongoing indemnity obligation hereunder. The foregoing states the entire obligation of Ambassador and its suppliers, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.

7.3 Procedures. The party seeking indemnification for a Claim must: (i) promptly notify the indemnifying party in writing of the Claim; (ii) relinquish control of the defense and settlement of the Claim; and (iii) assist the indemnifying party as reasonably requested. The indemnifying party may settle any Claim without the indemnified party’s consent if the settlement does not affect the rights of the indemnified party. The indemnified party may participate in the defense of the Claim at its own expense.

8. LIMITATION OF LIABILITY.

8.1. To enable Ambassador Services, the parties may use networks, facilities and technology which are not in the parties’ possession or under the parties’ direct control; therefore, Ambassador cannot provide warranties relating to such networks, facilities or technology. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AMBASSADOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, AND AMBASSADOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. AMBASSADOR EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE AMBASSADOR SERVICES OR RELATED SYSTEMS WILL OPERATE ENTIRELY UNINTERRUPTED OR ERROR-FREE.

8.2. NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED UNDER THIS AGREEMENT BY EITHER PARTY.

8.3. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER. THE TOTAL LIABILITY OF AMBASSADOR FOR ANY REASON, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO AMBASSADOR BY CUSTOMER UNDER THE ORDER APPLICABLE TO THE EVENT GIVING RISE TO SUCH ACTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT FOR THE PARTIES’ PAYMENT AND INDEMNIFICATION OBLIGATIONS, THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL CASES, INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE.

9. TERM AND TERMINATION.

9.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below (the “Term”). Each Order Form shall automatically renew for successive terms of one (1) year (each an “Extension Period”) unless either party provides written notice of its intent to terminate this Agreement at least sixty (60) days prior to the expiration of the applicable Term. Each Extension Period will include a 3% increase (assuming the same volume under contract) to the total renewal amount of Platform and Hosted Service fees.

9.2 Termination. This Agreement may be terminated (in whole, or in respect of any Order Form) by a party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party or (b) as otherwise set forth in the Order Form. A party’s insolvency, assignment of any or all of its assets for the benefit of its creditors or voluntary or involuntary filing for dissolution, liquidation or bankruptcy will be a material breach. If Customer terminates an Order Form for cause, Ambassador will reimburse Customer for any applicable amounts prepaid and unused by Customer under such Order Form and Customer will be relieved of any future payments or minimum commitment related to the terminated Order Form. Otherwise, upon any termination of an Order Form, Customer will pay for all Ambassador Services rendered through the termination date, any future amounts due under the Order Form, and the shortfall of any applicable minimum commitment(s). The parties agree that Ambassador has made pricing concessions based on the provisions agreed to herein and that any minimum commitment shortfall payments due are a fair approximation of the damages to Ambassador and do not constitute a penalty.

9.3 Effects of Termination. Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive, (b) Customer shall remove all Ambassador JavaScript or other scripting, including, but not limited to all widgets and other embeddable snippets derived from the Ambassador Services within 10 days following any termination or expiration of this Agreement (if Customer does not do so, then Ambassador reserves the right to continue to charge the monthly fees payable hereunder until such scripting is removed); and (c) Ambassador shall destroy or delete all Data, (if requested by Customer) as certified by a department head or Vice President of Ambassador that all Data has been deleted or destroyed from the Ambassador Services; and (d) the provisions which by their nature should survive termination will so survive, including Term and Termination, Proprietary Rights, Confidentiality, Payments, Limited Warranty and Disclaimers, Indemnification, Limitation of Liability, and General Provisions.

10. GENERAL PROVISIONS.

10.1 Entire Agreement. This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/ electronic signature shall be deemed an original and valid signature. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects.

10.2 Governing Law. This Agreement and Orders shall be governed under the laws of Delaware without regard for its choice of law principles. Customer agrees that any legal action involving this Agreement or Orders in any way will be instituted in a court of competent jurisdiction located in King County, Washington, and Customer consents to jurisdiction of the state or Federal courts in the State of Washington over Customer’s person for purpose of such legal action.

10.3 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

10.4 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated in the latest Order Form, or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

10.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

10.6 Publicity. Neither party may use the other party’s name, trademarks, trade names or logos for any purposes without the prior written approval of the other party or to the extent necessary to provide the Ambassador Services. Notwithstanding the preceding, Ambassador may use Customer’s name and logo as part of a list of customers and may refer to Customer as a user of its Ambassador Services in its advertising and marketing activities.

10.7 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise), provided however that Customer may not assign this Agreement to a competitor of Ambassador, in Ambassador’s sole discretion, under any circumstances. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

10.8 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

10.9. Enforcement. All users of the Ambassador Services must adhere to the terms of this Agreement. Ambassador has the right, but is not obligated, to strictly enforce this Agreement through self-help, active investigation, litigation and prosecution. Ambassador may also access and disclose any information (including transactional information) related to Customer’s access and use of our website or network for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with law, rule or regulation (e.g., a lawful subpoena); (3) protecting our rights or property and those of our customers; or (4) protecting users of those Ambassador Services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such Ambassador Services.

10.10. Recording. Customer agrees that all calls may be recorded or monitored by Ambassador at Ambassador’s option. Such recording or monitoring shall not violate any state or federal law.

10.11. No Third-Party Beneficiaries. This Agreement and Orders are for the sole benefit of the parties to such Order and are not intended to, nor shall it be construed to, create any right or confer any benefit on or against any third party.

Exhibit A (Form of Order Form)

The separately executed Order Form is hereby incorporated into this Agreement as Exhibit A of same.

Exhibit B (Service Levels)

1. SERVICE LEVEL COMMITMENT.

1.1 General. Ambassador shall use commercially reasonable efforts to maintain the “Minimum Service Level”, as set forth in the table below, during the Term of the Agreement.

1.2 Service Disruption. Ambassador will inform Customer by email (or other prompt, appropriate means) of any service disruption, unless such disruption is of an insignificant nature (less than 1 hour). Ambassador will use commercially reasonable efforts to restore service as soon as practicable and inform Customer by email (or other prompt means if email is unavailable) once service is restored.

1.3 Exceptions. The following downtime minutes will be excluded from the measurement of compliance with the Minimum Service Level: (i) downtime minutes related to scheduled maintenance; (ii) downtime minutes related to any matter constituting force majeure pursuant to the Agreement; (iii) downtime minutes resulting from Customer noncompliance with the Agreement, including but not limited to any negligence, willful misconduct and (iv) downtime minutes resulting from data or transmission quality issues outside of Ambassador’s reasonable control. All scheduled maintenance will be conducted between the hours of 12:00 am ET and 5:00 am ET. Ambassador at its sole discretion may plan additional scheduled maintenance which will be communicated to Customer at least 24 hours in advance with notice of the anticipated duration of the downtime.

1.4 Support Hours. Normal hours of operation are 9:00 am – 6:00 pm ET, Monday through Friday, excluding Ambassador-observed holidays (Support Hours). Outside of Support Hours, Customer can text Ambassador support at 248.792.3472. Ambassador will use commercially reasonable efforts to address issues within 8 business hours during Support Hours and within 24 business hours outside of Support Hours.

1.5 Remedy. If Ambassador fails to meet the Minimum Service Level as set forth above, then as Ambassador’s sole obligation and Customer’s exclusive remedy, Customer shall be entitled to a 5% credit based on fees actually paid by Customer to Ambassador pursuant to the Agreement for each 60 minute period below the Minimum Service Level set forth above that the Ambassador Service remains unavailable, provided that in no event shall service credits in any calendar month exceed 30% of the monthly fees for the given month. Any such credit shall be applied to fees owed by Customer to Ambassador in the following calendar month. Customer must request such service credit within 10 business days following the end of the calendar month in which the failure occurred.

v.120524