This Master Subscription Agreement (“Agreement”) governs our customers’ use of Opaline’s services (the “Service”). It is entered into by and between Opaline and any entity (“Customer”) accessing the Service through any registration or sales order process that references this Agreement (“Order”). The effective date of this Agreement (“Effective Date”) is the earlier of Customer’s initial access to the Service or the effective date of the first sales order referencing the Agreement.

1. DEFINITIONS

   1.1. “Business Associate Agreement” means the Business Associate Agreement between Opaline and Customer, if applicable.

   1.2. “Confidential Information” means business, technical, or financial information relating to the Disclosing Party’s business, as well as non-public information regarding features, functionality, and performance of the services, business practices, data processes, computer or software products or programs, and all related documentation, cost and pricing data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, trade secrets and discoveries, software source code and object code, and patent information. For the purposes of this Agreement, “Confidential Information” also includes Customer Data, Privacy Data, and all non-public information or other information relating to an identified or identifiable natural person. For the purposes of this Agreement, “Confidential Information” shall not include “System Data” as defined in Section 1.16 .

   1.3. “Customer Data” means data or information that is provided to the Service from Customer’s business information management system or other third-party software or through Customer’s, its Users’, or its Existing or Prospective Clients’ use of the Service, including Privacy Data.

   1.4. “Damages” means any and all losses, claims, obligations, liabilities, actions, suits, proceedings, demands, judgments, payments, costs and expenses (including court costs, amounts paid in settlement, judgments, and reasonable attorney fees and other expenses) and damages of any kind, nature or description whatsoever.

   1.5. “Documentation” means operating guides, information security policies, or other policies, materials or documentation associated with the Service published by Opaline or made available by Opaline to Customer.

   1.6. “Disruption” means any nonperformance, downtime, outage, interruption, unavailability, malfunction, error or Opaline Technology failure relating to the Service or any component thereof, or any inability to use or access all or part of the Service.

   1.7. “Existing or Prospective Clients” means an existing or prospective client of the Customer who accesses or uses the components of the Service designed for existing or prospective client use, through Customer’s website or other authorized means.

   1.8. “Opaline Technology” means the facilities, equipment, software and services, including those of third parties, used by Opaline to provide the Service, including cloud computing platforms and other web services provided by third parties in connection with the hosting, backup and recovery, and data security aspects of the Service.

   1.9. “Privacy Data” means data or information provided to the Service that identifies an individual (including Users or Existing or Prospective Clients), including their name, address, telephone number, date of birth, social security number, health conditions, biometric data, personal images, or other nonpublic personal information.

   1.10. “Processes” means policies and processes implemented by Opaline to enable provision of the Service.

   1.11. “Renewal Term” means consecutive, additional twelve (12) month periods after the initial Term as defined in Section 1.17, unless either party provides written notice of non- renewal to the other party not less than thirty (30) days prior to the commencement of a Renewal Term.

   1.12. “Security Incident” means any breach of security or intrusion to the of Opaline Technology, or accidental, unauthorized, or unlawful use, access to, or acquisition, disclosure, modification, or loss of, Customer Data stored on or processed by the Opaline Technology.

   1.13. “Service” means the Software made available to Customer under the applicable Order.

   1.14. “Software” means Opaline’s proprietary software that may be made available to Customer as the Service, and shall include the Documentation and all new releases of the Software which are made generally available to all customers without an additional charge.

   1.15. "Subscription Fees" means the monthly fee for the Service, as agreed during the Order process.

   1.16. “System Data” means information that originates in the Service, including artificial intelligence, metadata or analytics, or that is based on or derived by Opaline from Customer Data, so long as such information does not include Privacy Data that identifies any individual.

   1.17. “Term” means the twelve (12) month period from the Effective Date and each Renewal Term, until either party terminates this Agreement as provided in Section 9.

   1.18. “User” means Customer’s employees, agents, and subcontractors or any other individual other than an Existing or Prospective Client who uses or accesses the Service through a commercially accepted method of Customer.

   1.19. “Usage Limits” means limits placed on the Service as described in the Order along with any applicable fees for additional usage by Customer of the Service in excess of those limits.

2. SERVICE ACCESS

   2.1. Right to Use. Opaline grants to Customer the right for Customer to use the Service during the Term, contingent on Customer paying the fees set forth in, and complying with the other terms and conditions of this Agreement. Customer will use the Service solely for Customer’s own internal business purposes and only in connection with its Users and Existing or Prospective Clients as specified in the Order or as otherwise approved in writing by Opaline. Customer will use the Service only to process its own Customer Data.

   2.2. Customer License. Customer hereby grants Opaline a nonexclusive, royalty free license during the Term to use Customer’s trademarks and other intellectual property rights (“Intellectual Property Rights”) to the extent necessary to customize the Service for Customer’s use, and shall include the right to use Customer’s name, image, brand, logos, product descriptions, pricing information, and the like as may be approved by Customer. Customer further consents to Opaline’s use of its Intellectual Property Rights in connection with the marketing of Opaline’s products and services.

3. FEES

   3.1. Fees. Customer’s Subscription Fees will remain fixed during the Term of the Agreement unless the Customer (i) exceeds Usage Limits for the Service as described in the Order, (ii) changes the features or Usage Limits of the Service subscribed to through a new Order, or (iii) as described in the initial Order. Customer agrees to pay all Subscription Fees, including fees for exceeding Usage Limits, without setoff or deduction, in United States Dollars and immediately available funds. After the initial Term, Opaline may increase such fees prior to each Renewal Term. Opaline will notify Customer thirty (30) days prior to the price increase through communications via Customer’s account, email or other means. Customer’s continued use of the Service will constitute Customer’s acceptance of such increased fees.

   3.2. Invoicing. Customer will maintain a direct method of payment with Opaline. Opaline will invoice Customer monthly for immediate payment as set forth in the Order, and charge the payment method on file. Customer will be responsible for providing complete and accurate billing and contact information to Opaline and for notifying Opaline of any changes to such information. Except as otherwise set forth in the Order or this Agreement, payment obligations are non-cancelable, and fees paid are non-refundable.

   3.3. Overdue Fees. Any payment not received by Opaline from Customer within fifteen (15) days after the due date of the invoice will be considered a late payment by Customer and will bear interest at the rate of one percent (1%) per month or, if lower, at the maximum rate permitted by law.

   3.4. Taxes. The fees set forth in the Sales Order do not include any applicable sales, use, utility or other taxes, or regulatory or governmental taxes, however designated. Opaline may charge Customer, and Customer will pay as invoiced by Opaline, all applicable taxes (including sales tax) that Opaline may be required or permitted to collect or pay (other than taxes based on Opaline’s net income). Opaline may also pass-through to Customer for payment or reimbursement any regulatory or government taxes. Customer may not set off any amount owed to Opaline as a result of Customer’s tax liabilities. If Customer is required by law to make any deductions or withholdings from payments to Opaline, Customer will pay such additional amounts to Opaline as may be necessary to ensure that the actual amount received by Opaline after deduction or withholdings (and after payment of any additional taxes due as a consequence of such additional amount) equals the amount that would have been payable to Opaline if such deductions or withholdings were not required.

4. OPALINE TECHNOLOGY AND PROCESSES.

   Opaline will maintain the Opaline Technology and Processes described in Documentation to be made available by Opaline to Customer, including the Opaline Technology or Processes designed to minimize Disruptions or provide backup and recovery of Customer Data. Opaline may, from time to time, change or update any Opaline Technology, Process, or Documentation. Such changes or updates will be effective upon Opaline’s making them available to Customer. Customer’s continued use of the Service thereafter will constitute Customer’s acceptance and agreement to be legally bound by any such changes or updates, provided that, if any change or update materially adversely affects, or creates material additional risk to Customer, then Customer will have a period of up to fifteen (15) days in which to provide Opaline with written notice, as Customer’s sole and exclusive remedy, of Customer’s election to terminate this Agreement. Except for breach by Opaline of this Section 4, Opaline will have no liability or responsibility arising out of any Disruption, or any performance or nonperformance of the Service, any Opaline Technology or any component thereof, or any matter that is the subject of a Process that is made available by Opaline to Customer.

5. CUSTOMER RESPONSIBILITIES

   5.1. Legal and Regulatory Matters. As between Opaline and Customer, Customer will be solely responsible for Customer and its Users’, or its Existing or Prospective Clients’ use of the Service, or data or information produced by the Service, in connection with Customer’s legal or regulatory requirements or otherwise in connection with its business or its or their business decisions. Customer acknowledges and agrees that it and its Existing or Prospective Clients have independently verified the scope of any clinical treatment or services that may result from the use of the Service, and that as between Opaline and Customer, Customer shall solely be responsible to Existing or Prospective Clients for all treatments or services resulting from the use of the Service. Opaline will not be responsible or liable to assist Customer in connection with any decisions regarding clinical treatment services resulting from the use of the Service or with the identification, interpretation or application of any laws or regulatory requirements related to its use of the Service.

   5.2. Technology Matters. If required by Opaline for Opaline’s performance, or enforcement of its rights, under this Agreement (including to audit Customer’s compliance with this Agreement), Customer will permit Opaline to remotely access or monitor any web-based or offline applications utilized in connection with access to or use of the Service. Customer acknowledges that Opaline has not made, and Customer has not relied upon, any oral or written comments, public or otherwise, regarding the future functionality, features, or capabilities of the Service.

   5.3. Third Party Applications. In the event that Customer utilizes third-party applications or software in connection with the Service, Customer will be responsible to agree to the terms and conditions for use of that third-party application or software separate from this Agreement. Third-party applications and software will not be Opaline Technology, and Opaline makes no representations or warranties (including with regard to fitness, functionality or performance), and will not provide support or other services, with respect to such applications or software. Without limiting the foregoing, Opaline will not be responsible or liable for any Disruption or Security Incident arising out of such applications or software and Customer will look solely to the provider of such applications or software in connection with such matters.

   5.4. User Responsibilities. Customer will establish access requirements for its Users and will be responsible for any and all use of, and activities, data, transactions or administration conducted through or that occur under, Customer’s account or any User account, whether or not authorized by Customer or the User. Customer will not, and will ensure that its Users will not, (i) make available or disclose to any third party the Service or Opaline proprietary rights or Opaline Technology, (ii) make derivative, competitive or its own works based upon the Service or Opaline proprietary rights, including any ideas, features, functions or graphics of the Service, or (iii) use the Service for any purpose other than that for which it is intended. Customer will be responsible and liable for compliance with the Agreement by its Users and for all actions or inactions of its Users.

   5.5. Compliance. Customer will operate its business and use, and will ensure that its Users use, the Service in compliance with this (i) Agreement, (ii) the Documentation, (iii) applicable laws, including without violating any rights of any User, any Existing or Prospective Clients, or third party, and (iv) not in aid of any unlawful, inappropriate or improper act or in any manner that, in Opaline’s reasonable discretion, could adversely affect Opaline’s public image, goodwill, reputation or contractual relations, or could subject it to liability, or could threaten or put at risk Opaline’s or its third-party providers’ Opaline Technology or other services. Customer will not grant access to the Service to anyone or in a manner intended to circumvent, or that circumvents, any provisions of this Agreement. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall notify Opaline promptly of any such unauthorized access or use.

6. CUSTOMER INFORMATION

   6.1. Customer Data. Customer Data (including all Privacy Data) and Customer’s Confidential Information will, as between Opaline and Customer, always be the sole property of Customer. As such, Customer will have responsibility for the accuracy, sufficiency, ownership and copyright, legal compliance and other aspects of Customer Data and Customer’s Confidential Information, including the means and authority by which Customer acquired and used such Customer Data. Opaline will have the right to use Customer Data in order for Opaline to provide the Service (including by providing Customer Data to third party providers of services or Opaline Technology contracted by Opaline in connection with the Service) or, subject to Customer’s written election to revoke such right, for any other purpose reasonably related to Opaline’s business.

   6.2. Privacy Data. Customer will comply with applicable laws relating to Customer Data or Privacy Data, and Opaline will comply with commercially reasonable directions of Customer to permit Customer to comply with such laws. Customer will remain both the data owner and controller with regard to Customer Data and Privacy Data under applicable federal and state data protection laws, and acknowledges that Customer Data and Privacy Data will be collected by or on behalf of Customer (and not by Opaline ) and transferred by Customer to Opaline, as a service provider to Customer under this Agreement. Accordingly, Customer appoints Opaline as its data processor of Customer Data and Privacy Data under this Agreement, and Customer grants to Opaline the right to use, process, transmit, and subcontract the processing of Privacy Data, for the purpose of Opaline’s provision of the Service to Customer, its Users, or Existing or Prospective Clients, or otherwise in accordance with Customer’s instructions. Customer will be responsible for compliance of data processing instructions given to Opaline with applicable data protection laws. Customer will be responsible for and will undertake any policies, registrations or notifications required by applicable data protection laws and will be responsible for, and will provide any notice and obtain, any consent related to its use of the Service, including those related to the collection, use, processing, transfer or disclosure of Customer Data or Privacy Data. Customer will be responsible for all claims of or liabilities to its members or Users arising out of the collection, transfer or use of their Privacy Data. As between Customer and Opaline, Opaline’s liability relating to Customer Data or Privacy Data will be limited to its compliance the provisions of this Section 6 and Customer will be responsible and liable for compliance with applicable laws relating to Customer Data and Privacy Data, including the collection, transfer and use of Customer Data or Privacy Data, unauthorized access to or disclosure or use of Customer Data or Privacy Data, and the compliance of the provisions of this Section 6 with applicable laws relating to Customer Data or Privacy Data.

   6.3. Data Security.

   6.3.1. Opaline warrants that Customer Data will be hosted on Opaline Technology that is consistent with commercial practices for comparable providers of similar products and services under similar conditions, taking into account the costs of such Opaline Technology, the need for Privacy Data in connection with the Service, and the risk and impact of a security breach on individuals whose Privacy Data is hosted on such Opaline Technology.

   6.3.2. Opaline warrants that Customer Data will be managed by Opaline utilizing technical and organizational measures designed to (i) comply with and meet the applicable privacy laws, (ii) protect against unauthorized access to, or disclosure or use of, Customer Data by Opaline employees and contractors, (iii) protect against substantial harm or inconvenience to account holders of Customer, and (iv) protect against reasonably anticipated third party threats to the security of Customer Data. Opaline’s data security Processes will be set forth in Documentation to be made available by Opaline to Customer*.*

   6.3.3. If Opaline becomes aware of a Security Incident, Opaline will, as Opaline determines to be appropriate in accordance with its Processes regarding Security Incident response, (i) promptly notify Customer of the Security Incident, (ii) investigate the Security Incident and provide Customer with a description of the Security Incident and corrective action to be taken by Opaline, (iii) take commercially reasonable steps to remediate the cause of the Security Incident and cure any deficiencies, (iv) take any additional action(s) pertaining to such unauthorized disclosure required by applicable laws, and (v) communicate (as permitted by law and the restrictions of any pertinent non-disclosure agreements) the cause, remediation, and steps to prevent future incidents to Customer. Except as required by applicable law, Opaline will not disclose the fact of, or details regarding, the Security Incident to any person other than Customer, or in connection with its investigation of the Security Incident, without Customer’s prior written authorization. Customer acknowledges that Customer alone will be responsible for giving any required notices to its Users or Existing or Prospective Clients impacted by a Security Incident or to relevant law enforcement or regulatory agencies. In the event of a Security Incident, the parties will work together in good faith to mitigate any risk of harm to either of the parties.

   6.3.4. Customer acknowledges that Opaline Technology may include services, such as cloud computing platforms or other web services, or facilities, such as data centers, provided by third parties. Customer authorizes and consents to the use of such services and facilities in connection with the Service. Opaline will remain responsible for compliance with this Agreement by any subcontractors engaged by Opaline. Opaline will not host, transfer, share or access Customer Data outside of the United States without Customer’s prior written consent in each instance. Opaline will ensure that Opaline’s employees, agents, and subcontractors providing the Service are subject to confidentiality obligations no less stringent than those set out in this Agreement.

   6.3.5. Except for breach by Opaline of this Section 6.3 or for Opaline’s gross negligence or willful misconduct, Opaline will have no responsibility or liability for the security of Customer Data or otherwise relating to or arising out of any Security Incident. Notwithstanding anything to the contrary, if a Security Incident results from Opaline’s breach of this Agreement, then Opaline will be responsible for the costs of complying with Section 6.3.3 or otherwise remediating the breach, subject to Section 11.2.

   6.4. Use of Anonymized Data. Notwithstanding any other provision of this Agreement, nothing herein shall prevent, and Customer hereby consents to, Opaline’s use of any anonymized data derived from Customer Data (“Anonymized Data”), including its use or sale in the aggregate, to assist with product development, research, marketing, trend analysis, or any other use, provided all such information has been deidentified and any personally identifiable information has been removed. For the avoidance of doubt, Customer Data as defined in Section 1.3 does not include Anonymized Data.

   6.5. Data Transition. Upon request by Customer at any time, Opaline will turn over to Customer or destroy, at Customer’s option, all Customer Data and all documents or media containing any such Customer Data and any and all copies thereof. Upon request from Customer, Opaline shall certify the return or destruction of such Customer Data. In the event of termination of this Agreement, Opaline will assist Customer (or a third party designated by Customer) with the transition of its Customer Data by making the Customer Data history available to Customer in a format mutually agreed upon by Opaline and Customer, and providing other assistance that may be mutually agreed upon, upon payment of fees at Opaline’s standard professional services rates. Other than the foregoing, Opaline will have no obligation to assist or support Customer in reinstalling, transitioning, administering, maintaining, supporting or otherwise operating its Customer Data or any service, including copying or providing any data backup. Opaline will have no liability in connection with such data or service deconversion or transition, and Customer waives and releases Opaline from all such liability. Unless otherwise mutually agreed, Opaline will have no obligation to provide transition services, or to retain any Customer Data for more than thirty (30) days after completion of transition services or thirty (30) days after Termination if Customer chooses not to use Opaline transition services. Notwithstanding the foregoing, Opaline will not permit Customer to remove any Customer Data from the Service at any time unless and until all fees and other amounts due and owing under this Agreement shall have been paid in full.

7. PROPRIETARY RIGHTS

   The Service, System Data, Opaline’s Confidential Information and other Opaline proprietary rights or assets, and related intellectual property rights, are and will be the property of Opaline. Nothing in this Agreement assigns or licenses, or will be construed as assigning or licensing, to Customer any ownership or other beneficial rights in and to any of the foregoing, including any software code or other intellectual property. Opaline will have exclusive ownership of all intellectual property (and related intellectual property rights), materials, technology, ideas, inventions or other work product or information that are conceived or developed by Opaline in the course of providing the Service or other products and services. Customer assigns to Opaline, without further consideration, all right, title and interest of Customer in or to any of the foregoing and in or to any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer, its Users, or its Existing or Prospective Clients relating to the Service.

   7.1. Confidentiality.

   7.1.1. Opaline shall implement and maintain an internal security program in place at all times designed to: (i) utilize commercially reasonable physical, administrative, and technical security measures to safeguard and protect Confidential Information; (ii) protect against any actual or anticipated threats or hazards to the security or integrity of Confidential Information; (iii) protect against unauthorized access, exfiltration, disclosure, use, or other unauthorized dissemination of Confidential Information; (iv) ensure proper destruction of Confidential Information; and, (v) comply with all applicable laws and regulations governing such Confidential Information.

   7.1.2. Each party shall maintain in strict confidence, and use reasonable care to protect and safeguard (a) Confidential Information set forth in item (i) of the definition of Confidential Information and (b) Confidential Information of the other party and shall not, directly or indirectly, except as otherwise permitted in this Agreement, (i) reproduce, disclose, or make available to any third party any such Confidential Information, (ii) assist or enable any third party to access or use any such Confidential Information, or (iii) use or exploit any such Confidential Information to its or any other person’s or entity’s enrichment or advantage or to derive any economic gain or for any other purpose whatsoever. Without limiting the foregoing, Customer will not demonstrate, make available or otherwise describe the feature set of the Service to any person or entity that provides products or services that are similar to or in competition with those of Opaline .

   7.1.3. All materials (including electronic media) provided by a party, and copies thereof, in which Confidential Information of such party may be contained shall remain the property of the disclosing party. Upon written request of such party, or upon any termination of this Agreement, the other party will promptly deliver to such party all such materials and destroy all materials prepared by the other party in which Confidential Information may be contained. Without limiting the foregoing, in such event, Opaline will destroy all Customer Data in its possession in accordance with written directions provided by Customer. Notwithstanding the delivery or destruction of such materials, the parties shall continue to be bound by their obligations under this Section 7.1.

8. REPRESENTATIONS AND WARRANTIES

   8.1. Mutual Representations. Each party represents to the other that (i) the execution of this Agreement and the performance of the party’s obligations hereunder will not breach any other contract to which that party is bound and (ii) all necessary action has been taken to authorize such party's execution, delivery and performance of the Agreement and that the Agreement is the valid and binding obligation of such party, enforceable in accordance with its terms.

   8.2. Opaline Representations. Except as otherwise set forth herein the Service is provided “as is”, “where is”, and “with all faults”. Opaline shall not be responsible for or liable to correct any problem caused by: (i) Customer's failure to use the Service or any part thereof in accordance with the Documentation; (ii) the modification, alteration or maintenance of the Service by any person other than Opaline; (iii) negligence, misuse, or abuse of the Service by Customer, its Users, or its Existing or Prospective Clients, or any Customer’s third party.

   8.3. Customer Representations. Customer represents and covenants to Opaline that

   1. Customer has independently determined the scope of any clinical treatments or services that may be received from Customer by its Existing or Prospective Clients; and

   2. To the extent applicable to Customer, Customer shall execute and deliver to Opaline a Business Associate Agreement in the form and substance of that set forth in Exhibit A; and

   3. Customer is a direct pay recipient from its Existing or Prospective Clients for all services performed for such Existing or Prospective Clients and that Customer does not invoice or receive payments from any third party payors including, but not limited to Medicare, Medicaid, Tricare, any federal or state third party payors, commercial insurance companies or the like; and

   4. Customer is compliant with applicable privacy laws, rules, and regulations including, but not limited to the California Consumer Privacy Act, the Illinois Biometric Information Privacy Act, the Texas Capture of Use of Biometric Identifier Act, and Washington Biometric Law, and the European Union General Data Privacy Regulation.

   8.4. Warranty Exclusions. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, OPALINE DOES NOT MAKE, AND HEREBY DISCLAIMS, TO THE FULL EXTENT PERMITTED BY LAW, ANY AND ALL EXPRESS OR IMPLIED (BY OPERATION OF LAW OR OTHERWISE) OR STATUTORY WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. OPALINE DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. OPALINE DISCLAIMS ALL WARRANTIES AS TO, AND WILL HAVE NO LIABILITY ARISING OUT OF CUSTOMER’S TECHNOLOGY OR THIRD-PARTY PROVIDERS OF CUSTOMER’S TECHNOLOGY INCLUDING SOFTWARE OR APPLICATIONS, FACILITIES, NETWORKS, SERVERS AND OTHER PRODUCTS, EQUIPMENT OR SERVICES, EVEN IF ANY ARE USED TO PROVIDE THE SERVICE OR PROCESS, STORE OR BACKUP CUSTOMER DATA. CUSTOMER HEREBY WAIVES ALL DAMAGES BASED ON ANY OF THE FOREGOING.

9. TERMINATION

   9.1. Customer Rights. Customer may, in its sole discretion, elect to suspend or terminate this Agreement upon thirty (30) days written notice to Opaline as detailed in the Order. In the case of suspension, Customer may reinstate the use of the Service upon written notice to Opaline and conditioned upon the payment of any reinstatement fees which may apply.

   9.2. Opaline Rights. In addition to the termination rights set forth in this Agreement and to any other available rights or remedies, Opaline may, in its sole discretion, terminate this Agreement after written notice to Customer describing in reasonable detail a material breach of this Agreement by Customer*,* and the expiration of a period of not less than thirty (30) days in which such breach shall remain uncured, provided that any failure by Customer to make timely payment in full of any fees or other amounts due and owing under this Agreement shall be deemed material and there shall be no cure period for any such failure.

   9.3. Mutual Rights. Either party may, in its sole discretion, elect to terminate this Agreement upon the other party’s failure to continue to function as a going concern or to operate in the ordinary course of business, or if such party commits an act of bankruptcy within the meaning of the federal bankruptcy laws, or if bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or other similar proceedings will be instituted by or against such party.

   9.4. Consequences of Termination. Upon termination of this Agreement, Customer will cease use of the Service and notify all Users that use of the Service has been discontinued. Upon or after any such termination, or any material breach of this Agreement by Customer and the expiration of the cure period above, if any (whether or not this Agreement has been terminated), Opaline may, in its sole discretion, elect to shut down the Service to Customer and its Users, terminate or prevent Customer's and its Users’ access to the Service (including to Customer Data), or cease the provision of any other services. Upon termination of this Agreement, Customer will be obligated to pay to Opaline all fees accrued or incurred through the date of termination. Customer agrees to pay such fee without any invoice or demand from Opaline within ten (10) days after termination of this Agreement. Except as expressly provided in this Agreement, Customer will not be entitled in any circumstances to a refund of any fees or deposits.

   9.5. Survival. In addition to Customer’s payment obligations to Opaline for all fees payable under this Agreement, the obligations of the parties under this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, shall survive termination or expiration of this Agreement, including Sections 7 and 10-12.

10. INDEMNIFICATION

    10.1. Indemnification of Customer. Opaline agrees to indemnify, defend and hold harmless Customer and its owners, shareholders, partners, managers, trustees, directors, officers, employees, agents, representatives, consultants and subcontractors from and against Damages arising out of (i) any breach of this Agreement by Opaline or (ii) any matter for which Opaline expressly has responsibility under this Agreement.

    10.2. Indemnification of Opaline. Customer agrees to indemnify, defend and hold harmless Opaline and its member, managers, officers, employees, agents, representatives, consultants and subcontractors from and against Damages arising out of (i) any breach of this Agreement by Customer (or any act or omission of its Users that, if taken by Customer, would constitute a breach of this Agreement by Customer) or (ii) any matter for which Customer expressly has responsibility under this Agreement.

    10.3. Third Party Claims. Promptly (and in any event within five business days) after receipt of actual notice that a third party is commencing a lawsuit, arbitration or other action (a “Third Party Action”) against a party hereto (the “Indemnified Party”) based on allegations which, if proven, would entitle the Indemnified Party to indemnification pursuant to Section 10.1 or 10.2 of this Agreement, the Indemnified Party shall give written notice of the pending or threatened Third Party Action to the party that would be obligated to provide such indemnification (the “Indemnifying Party”). Delay in notifying the Indemnifying Party shall relieve the Indemnifying Party from liability only to the extent the Indemnifying Party shall have been materially prejudiced by such delay. As a condition to its right to indemnification hereunder, the Indemnified Party shall give the Indemnifying Party the right (without prejudice to the right of the Indemnifying Party to contest its obligation to indemnify the Indemnified Party with respect to any claims made in the Third Party Action) to assume control of the defense of the Third Party Action, including through the selection and engagement of counsel reasonably satisfactory to the Indemnified Party. The party hereto not in control of the defense of a Third Party Action shall have the right to participate in the Third Party Action through its own separate counsel at such party’s own expense; except, however, even if the Indemnifying Party assumes the defense of a Third Party Action, the Indemnifying Party shall be liable for the fees and expenses of the Indemnified Party’s separate counsel if the Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to the Indemnified Party which may conflict with or be inconsistent with those available to the Indemnifying Party. No party shall be liable for or bound by any settlement of an action effected without such party’s written consent, which shall not be unreasonably withheld, delayed or conditioned. In addition, neither party will settle, compromise or consent to the entry of a judgment in or otherwise seek to terminate any pending or threatened action in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Party is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional release of the Indemnified Party from all claims arising out of such action.

11. LIMITATIONS OF LIABILITY

    11.1. NO CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, RELIANCE, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORESEEABILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

    11.2. LIABILITY MAXIMUM. IN THE EVENT OPALINE WILL BE LIABLE TO CUSTOMER OR CUSTOMER WILL BE LIABLE TO OPALINE NOTWITHSTANDING THE LIMITATIONS AND EXCLUSIVE REMEDIES HEREIN, OPALINE’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE), WILL NOT EXCEED, IN THE AGGREGATE, (I) WITH RESPECT TO LIABILITY OF OPALINE AS A RESULT OF A BREACH OF SECTION 6.3 OR OTHERWISE OF EITHER PARTY ARISING OUT OF A SECURITY INCIDENT, ONE (1) TIMES THE AMOUNT OF THE ANNUAL FEES RECEIVED FOR THE SERVICE BY OPALINE UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE BREACH AND (II) OTHERWISE, THE AMOUNT OF THE ANNUAL FEES RECEIVED FOR THE SERVICE BY OPALINE FOR THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RIGHT TO THE LIABILITY. OPALINE WILL HAVE NO LIABILITY ARISING OUT OF ANY ACT OR OMISSION OF ANY PERSON OR ENTITY OTHER THAN OPALINE.

    11.3. CLAIM PERIOD. NO ACTION OR PROCEEDING AGAINST OPALINE SHALL BE COMMENCED MORE THAN ONE YEAR AFTER THE EVENT GIVING RISE TO THE CLAIM.

12. ADDITIONAL PROVISIONS

    12.1. Modifications to this Agreement. From time to time, Opaline may modify this Agreement. Unless otherwise specified by Opaline, changes become effective for Customer upon renewal of Customer’s current Term or entry into a new Order. Opaline will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before a Renewal Term or entering into a new Order.

    12.2. Severability and Waiver. In the event any provision of this Agreement is held to be contrary to the law or invalid or unenforceable for any reasons, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party. No failure or delay on the part of either party in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder operate as a waiver thereof. In addition, no single or partial exercise of any right or power, nor any abandonment or discontinuance of steps to enforce any right or power will preclude any other or further exercise thereof, or the exercise of any other right or power by either party.

    12.3. Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party may assign this Agreement in whole as part, directly or indirectly (including by change of control), without the express prior written consent of the other party, and any attempted assignment without such consent will be void, provided that, either party may, without the consent of the other party, assign all of its rights and obligations under this Agreement to any person or entity that purchases all or substantially all of its assets or any successor entity to such party by way of merger or other business combination.

    12.4. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the signature page to the Sales Order or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is later.

    12.5. Relationship of Parties. Opaline and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Opaline and Customer. Neither Opaline nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

    12.6. Entire Agreement. This Agreement, including the Sales Order and each Exhibit (which are incorporated into and made part of this Agreement), constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.

    12.7. Interpretation. The term “written” means anything reduced to a tangible form by a party, including a printed or handwritten document, e-mail or other electronic format. The word “including” (and correlative words, such as “include” and “includes”) shall not be construed as a term of limitation but shall mean including without limiting the generality of any description preceding such term. The terms “hereby,” “hereof,” “herein” and “hereunder” mean by, of, in and under this Agreement, respectively, and refer to this Agreement as a whole and not merely to the Section or provision in which such term is used. The term “or” will be construed to be inclusive and have the meaning of “and/or”. All references herein to the masculine gender will also include the feminine and neuter, and vice versa, and all references to the singular form will also include the plural, and vice versa, as the context may require. No provision herein will be construed against a party merely because of the role of such party or its counsel in the drafting thereof.

    12.8. Binding Agreement. The terms and conditions of this Agreement will apply to, bind, extend to and inure to the benefit of the parties hereto and each of their respective successors and permitted assigns. This Agreement is being made and entered into solely for the benefit of the parties hereto and no party intends hereby to create any rights in favor of any other person as a third-party beneficiary of this Agreement or otherwise.

    12.9. Cumulative Rights and Remedies. Except as otherwise expressly provided in the Agreement, the rights and remedies of the parties under the Agreement (including the right to terminate the Agreement and the right to indemnification and the limitations on liability) shall be cumulative with and in addition to, not exclusive or in replacement of, any other rights or remedies that may be available under any other agreement between the parties, at law or in equity.

    12.10. Governing Law. The Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to its principles of conflicts of laws. Each of the parties to the Agreement hereby submits to the exclusive, personal jurisdiction of either the state or federal courts located in such county where Opaline conducts its business, for all claims, disputes or controversies involving the parties and relating to the Agreement; provided, however, nothing herein shall prevent a party hereto from asserting a claim for indemnification or any other claim hereunder against the other party hereto in connection with a third party action in the same jurisdiction where a third party action has been brought.

    12.11. Counterparts. This Agreement, and the Sales Orders, may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together will constitute one instrument. Executed copies of this Agreement or the Sales Order (including copies of any signatures) that are reproduced or transmitted via digital or electronic means (e.g., a portable document format (PDF) attached to an e-mail) will be equivalent to original documents.

    12.12. Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such party or its contractors, agents or suppliers, including utility or transmission failures, failure of phone lines, phone equipment, VPN’s, cloud accessibility, power failure, strikes or other labor disturbances, Acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters, pandemic or related governmental orders.

    12.13. Equitable Enforcement. In the event of a breach or threatened breach of Section 7.1 of this Agreement, the non-breaching party will be entitled to seek from any court of competent jurisdiction preliminary and permanent injunctive relief, which remedy will be cumulative and in addition to any other rights and remedies to which the non-breaching party may be entitled, without necessity of posting bond or other security.