CLOUD SERVICES AGREEMENT

BY INSTALLING IN ELOQUA OR OTHERWISE UTILIZING ANY OF 4THOUGHT MARKETING’S CLOUD SERVICES, YOU OR THE ENTITY THAT YOU REPRESENT (“LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”) AND THAT YOU HAVE READ IT IN FULL. LICENSEE’S USE OF THE CLOUD SERVICES SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE CLOUD SERVICES AND REMOVE ALL COPIES FROM YOUR VERSION OF THE ORACLE ELOQUA MARKETING CLOUD OR OTHER LOCATIONS WHERE THE CLOUD SERVICES ARE UTILIZED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

This Software Services Agreement (referred to as “Agreement”) is between 4THOUGHT MARKETING SA (identified in this Agreement using “we”, “us” “our” or similar words) and the LICENSEE (referred to in this Agreement as “you”, “your”, “yours” or similar words) and your affiliates.

Contact Information. The following is the contact information for the purpose of this agreement and specifically for the “Notices” Section:

For 4Thought Marketing:
5301 Porter Ranch Rd
Garden Valley, CA 95633
Contact: Legal Department
Fax: (831) 335-1448
Email: Legal@4ThoughtMarketing.com

1. DEFINITIONS: Defined Words and Terms. In this Agreement, you will find various words and terms which begin with a capital letter. These words and terms have specific meanings, which you will find defined either in Section 1 or elsewhere throughout this Agreement.Contract Documents. This agreement consists of the terms set out herein and possibly an associated Order OR Scope of Work (SOW) Agreement. Separate but non-dependent agreements may exist for consulting or professional services between the parties now and in the future.Cloud Services means 4Thought Marketing’s add on products for the Oracle Eloqua Marketing Cloud, Salesforce.com or similar system including Cloud Connectors, Cloud Actions, Cloud Decisions, Cloud Content, or other similar Cloud Software Services provided by us at designated URLs as we may assign from time to time (including all components, User Guides, thereof, on an individual and collective basis), or the associated software provided by us via electronic delivery. Under this Agreement, we agree to provide you with the Cloud Services described on an accepted specified Order Form or SOW. In return, you agree to pay us the Fees on the terms set out in that document. Any Cloud Services provided may be used to connect to 1 (one) instance of the system specified. If an organization is running multiple copies of Eloqua or multiple copies of a CRM or other system, multiple Cloud Services must be licensed.”Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.”Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Non-4Thought Marketing Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Cloud Services.
“SOW” or “Order Form” are interchangeable terms that mean the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto and any purchased line items in this Agreement. By entering into an SOW or Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. In the event of any conflict in language between the SOW or Order Form and this Agreement, this Agreement shall take precedence.
“Purchased Services” means Cloud Services that You or Your Affiliates purchase under an Order Form or SOW, as distinguished from those provided pursuant to a free trial.
“Free Services” means the Cloud Services and other products and services that you utilize but do not pay for and are made available by Us via web pages or URLs designated by Us or delivered software, including associated offline components, as described in the User Guide. “Free Services” exclude Non- 4Thought Marketing Applications such as, but not limited to, those provided by Oracle or a CRM vendor.
“User Guide” means the online user guide along with help files, community services and videos, as updated from time to time and provided with and for the Purchased Services.
“Users” means individuals who are authorized by You to use the Cloud Services either expressly or implicitly by providing access to a system (such as Oracle Eloqua or Salesforce.com) where the Cloud Services are made available. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Your Data” means all electronic data or information submitted by You to the Purchased Services or transferred through the Purchased Services.

1. PURCHASED SERVICES AVAILABILITY: We will make the Purchased Services directly available to Users who have been supplied user identification and passwords by you either directly for the Cloud Services, or indirectly via a supported system like Oracle Eloqua. We hereby grant You and Your Users a limited, non-exclusive right to access and use one instance of the Cloud Services specified on an accepted Order Form or SOW, in each case during the subscription term and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form or herein). You agree that your purchase is not dependent on any future functionality or features (or any public comments or other disclosure made by us with respect thereto).
2. FREE SERVICES AVAILABILITY: If You register on our website or via a request to us for a free trial, We may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE FREE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE FREE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST. IF YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, BEFORE THE END OF THE TRIAL PERIOD AND REQUEST IN WRITING THAT YOUR DATA BE SAVED, 4THOUGHT MARKETING MAY AT ITS OPTION SAVE THE DATA SUPPLIED DURING THE FREE TRIAL.NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. USE OF THE SERVICES
   1. Our Responsibilities. We shall: (i) provide Our Basic Support for the Purchased Services as defined at www.4ThoughtMarketing.com/Software-Support “Basic Support” to You at no additional charge, and/or “Cloud Systems Support” if purchased separately, (ii) Provision (turn on) each products purchased one time at no charge.  Additional fees will apply if you request us to (a) transfer ownership of this product to another company, (b) move the product between Eloqua instances, or (c) require re-provisioning on your same instance (for reasons not our responsibility or cause).  These fees can be found on the 4Thought Marketing Eloqua Add On Cloud Apps Pricelist available upon request.  (iii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via email and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
   2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Cloud Services and prevent or address service or technical problems, or at Your request in connection with provided services or customer support matters.
   3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Cloud Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Cloud Services available to anyone other than Users, (b) sell, resell, rent or lease the Cloud Services, (c) use the Cloud Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Cloud Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Cloud Services or third-party data contained therein, (f) attempt to probe, scan or test the vulnerability of the Cloud Services, breach the security or authentication measures of the Cloud Services without proper authorization or willfully render any part of the Cloud Services unusable;or (g) attempt to gain unauthorized access to the Cloud Services or their related systems or networks.
   4. Usage Limitations and Reasonable Use: Unless otherwise specified in an SOW or License agreement, both parties agree that for any Cloud Connectors , Cloud Apps, Upload Wizards, or other similar custom or non-custom cloud software products hosted by 4Thought Marketing and used by you, Reasonable Use shall be defined as staying within and under both: a. No more than 5 instances of any single Cloud App may be installed at any time (“Max Instances”); and  b. No more than 250,000 records will be processed per day, summed across all 4Thought Marketing Cloud Apps owned by the customer (“Max Records”).  If you exceed either the Max Instances or the Max Records additional fees may apply. Cloud Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against system or Our application programming interface, and, for Cloud Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide or your Order Form or SOW.
4. NON-4THOUGHT MARKETING PROVIDERS
   1. Acquisition and use of Non-4Thought Marketing Products and Services. We or third parties may from time to time make available to You third-party products or services, including but not limited to Non-4Thought Marketing Applications and implementation, customization and other consulting services. Any acquisition by You of such non-4Thought Marketing products or services, and any exchange of data between You and any non-4Thought Marketing provider, is solely between You and the applicable non-4Thought Marketing provider. We do not warrant or support non-4Thought Marketing products or services, whether or not they are authorized, promoted, or referenced by us, except as specified in an SOW. Subject to Section 5.3 (Integration with Non-4Thought Marketing Services), no purchase of non-4Thought Marketing products or services is required to use the Services except a supported integrated service (such as Oracle Eloqua, Salesforce.com, NetSuite, SalesLogix, etc) computing device, operating system, web browser and Internet connection.
   2. Non-4Thought Marketing Applications and Your Data. When and/or if You install or enable Non-4Thought Marketing Applications for use with Cloud Services, You acknowledge that We may allow providers of those Non-4Thought Marketing Applications to access Your Data, other integrated systems and 4Thought Marketing systems and services as required for the interoperation of such Non-4Thought Marketing Applications with the Cloud Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-4Thought Marketing Application providers. The Purchased Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-4Thought Marketing Applications for use with the Purchased Services.
   3. Integration with Non-4Thought Marketing Services. The Services may contain features designed to interoperate with Non-4Thought Marketing Applications (e.g., Oracle Eloqua, SFDC, Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Non-4Thought Marketing Applications from their providers. If the provider of any such Non-4Thought Marketing Application ceases to make the Non-4Thought Marketing Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
5. FREE SERVICES AVAILABILITY
   1. If You register on our website or via a request to us for a free trial, We may make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) The processing of a maximum number of records specified in the trial, or (c) the start date of any Purchased Services ordered by You.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
   1. Fees. You shall pay all fees specified in all Order Forms or SOW approved between us. Except as otherwise specified herein or in an Order Form or SOW, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of months purchased cannot be decreased during the relevant subscription term stated on the Order Form or SOW. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
   2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form or SOW for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form or SOW. If the Order Form or SOW specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form or as per this Agreement. Invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. You may choose to pay us by wire transfer provided a simultaneous email is sent to Accounting@4ThoughtMarketing.com notifying us of the transfer.
   3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
   4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
   5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
   6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
7. PROPRIETARY RIGHTS
   1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Cloud Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
   2. Restrictions. You shall not (i) permit any third party to access the Cloud Services except as permitted herein or in an Order Form or SOW, (ii) create derivate works based on the Cloud Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Cloud Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Cloud Services, or (v) access the Cloud Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Cloud Services.
   3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Cloud Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Cloud Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
   4. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
   5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Cloud Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Cloud Services.
8. CONFIDENTIALITY
   1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Cloud Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
   2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
   1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Purchased Services shall perform materially in accordance with the User Guide, (iii) subject to Section 5.3 (Integration with Non-4Thought Marketing Services), the functionality of the Purchased Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Cloud Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
   2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
   4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products, new features for our products, or services that are not generally available to Our customers (“Non-GA Services”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “CLOUD SERVICES” or “PURCHASED SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.
   5. Recording of Conversations. You agree that this clause is sufficient notification and give 4Thought Marketing permission to, record conversations between Our and Your employees for quality control and record keeping purposes, however and wherever they occur.
10. MUTUAL INDEMNIFICATION
    1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance. In the event of a Claim Against You, or if We reasonably believe the Purchased Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Purchased Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Purchased Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Cloud Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
    2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Cloud Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
    3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
    1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $10,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
    2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Free Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
    2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the effective date specified on the applicable Order Form or SOW and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 8% of the pricing for the relevant Purchased Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional, discounted, or one-time.
    3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
    5. Return of Your Data after Termination. We shall have no obligation to maintain or provide to You any of Your Data after termination, and may upon termination, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
    6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
    1. General. You are contracting with 4Thought Marketing SA under this Agreement.
    2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Purchased Services system administrator designated by You.
    3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law in Santa Clara, California, USA, and to the exclusive jurisdiction of the applicable courts therein.
    4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
    1. Export Compliance. The Cloud Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Cloud Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
    2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (Legal@4ThoughtMarketing.com).
    3. Changes to This Agreement:  4Thought Marketing reserves the right to make changes to this agreement from time to time, such changes to take effect 30 days after publication on this web page.  You accept that publication on this web page is sufficient notification of such changes.
    4. 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.
    5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    6. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
    7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    8. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment). The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
    9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

*** END OF 4THOUGHT MARKETING CLOUD SERVICES AGREEMENT ***