Last Updated: November 27, 2020

This Sponsorship Agreement (the “Agreement”) is a binding agreement between the Sponsor listed on the applicable Order (hereinafter “Customer,” “You” or “Your”) and Making IT Safer, Inc.,  (hereinafter, “MITS,” “We,” or “Us”) and governs Your sponsorship, access, and use of all MITS entitlements and the provisioning of any Deliverables as further described in the applicable Order (such Deliverables, as defined in Amendment A, and collectively, the “Deliverables”) now or hereinafter developed by MITS.

This Agreement may be periodically updated, and the current version will be posted at www.makingitsafer.org/sa. Your continued sponsorship after a revised Agreement has been posted constitutes your acceptance of its terms, however existing sponsorship agreements will survive any updates.

1.0 DEFINITIONS

1.1    “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party. “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.

1.2    “Aggregated Data” means Customer Data (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner from which Customer’s or Customer Users’ identity may not be derived.

1.3       “Customer Data” means all data or information submitted by or on behalf of Customer.

1.4    “Customer User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to provide content for the completion of Deliverables.

1.5    “Fees” means any fees paid or to be paid for Deliverables under an Order.

1.6    “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within MITS’s possession or reasonable control and denial of service attacks.

1.7    “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

1.8    “Order” means a written order form/sponsorship proposal, purchase order, or similar ordering document for Deliverables submitted to, and approved, by MITS and/or Partner.

1.9    “Partner” means the MITS approved partner authorized by MITS to remarket or otherwise provide Deliverables to end user customers.

1.10   “Deliverable Sheets” means the MITS materials available at www.makingITsafer.org that provide Service descriptions, service levels, and terms applicable to specific Deliverables.

1.11   “Sponsorship Term” means, collectively, the Initial Sponsorship Term and all Renewal Sponsorship Terms.

1.12    “Support Deliverables” means the support Deliverables provided by MITS  with respect to each applicable Service, including Deliverables as described at www.makingitsafer.org.

1.13    “MITS Materials” means all MITS proprietary materials, including the Documentation, and Intellectual Property Rights embodied in the Deliverables and Documentation, MITS’s processes and methods, and/or materials distributed by MITS during any presentations, proof of concepts, or demonstrations of MITS Deliverables.

2. ORDERS

Customer and/or Customer Affiliates may Sponsor through an Order. All Orders shall be governed by the terms and conditions in this Agreement regarding Customer’s and its Affiliates’ access and use of the Deliverables. For clarity, MITS will not be obligated to provide any Deliverables to Customer or its Affiliate(s) until MITS receives a valid Order for such Deliverables, executed by Customer. Customer and any Customer Affiliate agrees that its Sponsorship is neither contingent upon the delivery of any future Deliverables nor dependent upon any oral or written public comments made by MITS with respect to any future Deliverables.

3 PAYMENT

Customer agrees to pay to MITS the Fees as agreed to in the applicable Order within [30 days] of receipt by Customer of applicable invoice. Customer shall be responsible for the payment of all taxes associated with Customer’s purchase of the relevant Deliverables together with any fees, duties, or other amounts, however designated, including value added and withholding taxes which are levied or based upon such charges, or upon this Agreement. If any tax for which Customer is responsible hereunder is paid by MITS, Customer will reimburse MITS upon MITS’s request therefor.

4 INTELLECTUAL PROPERTY; RESTRICTIONS; AND GUIDELINES

4.1 Ownership and Intellectual Property Rights

4.1.1 MITS.  All rights, title and interest in and to the Deliverables, MITS Materials and any and all Feedback (as defined below) belong exclusively to MITS and its licensors. No rights are granted to Customer other than as expressly set forth in this Agreement.

4.1.2 Customer.  All rights, title and interest in and to the Customer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Customer. No rights are granted to MITS other than as expressly set forth in this Agreement.

4.2 Use and Restrictions.  Customer agrees that it shall: (i) use the Deliverables solely for its internal business purposes; (ii) only permit access to the Deliverables by Customer Users; and (iii) comply with all Documentation provided by MITS. Customer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Deliverables or MITS Materials; (ii) use the Deliverables to send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws and/or regulations; (iii) upload to the Deliverables or use the Deliverables to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Deliverables or the data contained therein; (v) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Deliverables; and (vi) access or use the Deliverables from, or provide Deliverables too, an embargoed nation, or denied party, in violation of U.S. trade and economic sanctions.

4.3 Customer Guidelines and Responsibilities.  Customer agrees and understands that (i) it is solely responsible for all activity of Customer Users and for Customer Users’ compliance with this Agreement; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the Deliverables, and notify MITS promptly of any such unauthorized access or use; and (c) comply with all applicable laws and/or regulations in using the Deliverables; (iii) the Deliverables do not include Customer’s connection to the Internet or any equipment or third party licenses necessary for Customer to use the Deliverables, which shall be Customer’s sole responsibility; and (iv) MITS shall have the right to (a) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Deliverables (collectively “Feedback”); (b) utilize information collected regarding Customer’s use of the Deliverables for the purposes of (1) maintaining, improving and/or analyzing the Deliverables, including providing advanced analytics and reporting to Customer, and/or (2) complying with all legal or contractual requirements; and (c) develop and commercialize benchmarks and measures based on Aggregated Data. The foregoing shall in no way limit MITS’s confidentiality and security obligations set forth in this Agreement.

5 REPRESENTATIONS AND WARRANTIES

5.1 Mutual.   Each party represents and warrants to the other party that (i) it has, and will maintain throughout the Sponsorship Term, the legal power and authority to enter into this Agreement, and (ii) it will comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws) in fulfilling its respective obligations under the Agreement.

5.2 By Customer. Customer further represents and warrants to MITS that all Customer Data is correct, accurate, complete and shall remain current at all times, and MITS’s access to and use thereof in connection with MITS’s provisions of Deliverables hereunder will not infringe upon, misappropriate or otherwise violate the intellectual or any other rights of any third party.

5.3 By MITS.  MITS warrants that the Deliverables will be performed in a professional manner in accordance with industry standards for like Deliverables.

5.4 Disclaimer of Warranties.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL DELIVERABLES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER.  MITS EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.  MITS ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT DELIVERABLES WILL BE ERROR-FREE.

6 CONFIDENTIAL INFORMATION

6.1 Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed 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 or the circumstances of disclosure, including the terms and conditions of this Agreement (including sponsorship amount, unless authorized by client, and other terms reflected in all Orders hereunder), the Customer Data, the Deliverables, the MITS Materials, MITS’s security information and reports, and each party’s respective business and marketing plans, technology and technical information, Deliverable designs, and business processes. The obligations in this section shall not apply to 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 and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

6.2 Obligations.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written consent. Either party may disclose Confidential Information to its personnel, auditors, legal representatives and accountants, provided that such disclosure is made on a “need to know” basis only and provided, further that such recipients are bound by obligations of confidentiality no less restrictive than those set forth herein.

6.3 Protection. The Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable degree of care.

6.4 Compelled Disclosure.  If the Receiving Party is compelled by applicable law or regulation or compulsion of other proper judicial or other legal process to disclose Confidential Information of the Disclosing Party, the Receiving Party shall provide prompt notice of the same prior to such required disclosure such that the Disclosing Party may seek a protective order or other appropriate remedy to safeguard, restrict and/or limit the disclosure of such Confidential Information.

6.5 Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.

7 TERM AND TERMINATION

7.1 Order Term.  The Sponsorship Term will begin on the start date set forth in an Order and will continue for the period of time stated in the Order (“Initial Subscription Term”).  Prior to the end of the Initial Subscription Term, the parties will work together to agree on the length and pricing for a renewal term (“Renewal Sponsorship Term”); otherwise, Customer’s subscription will terminate at the end of the Initial Subscription Term (or the then-applicable Renewal Sponsorship Term).

7.2   Termination for Material Breach.  Either party may terminate this Agreement and any Order (i) if the other party breaches any terms and conditions of this Agreement and does not cure such breach within 30 days of receipt of notice of such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

7.3    Effect of Termination.  The following provisions shall survive the termination of this Agreement and all Orders:  Section 3 (Payment), Section 4 (Intellectual Property; Restrictions; and Guidelines), Section 5.4 (Disclaimer of Warranties), Section 6 (Confidential Information), Section 7.3 (Effect of Termination), Section 8 (Indemnity), Section 9 (Limitation of Liability), Section 10 (Processing of Personal Data), Section 11 (Export Compliance and Commercial Item Software), and Section 12 (General Provisions).

8 INDEMNITY

8.1        MITS will indemnify, defend and hold Customer harmless, from and against any claim against Customer by reason of Customer’s use of the Deliverables as permitted hereunder, brought by a third party alleging that the Deliverables or MITS Materials infringe or misappropriate a third party’s Intellectual Property Rights.  MITS shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by MITS for such defense.  If the Deliverables, or parts thereof, become, or in MITS’s opinion may become, the subject of an infringement claim, MITS may, at its option: (i) procure for Customer the right to continue using the Deliverables as set forth herein; (ii) replace or modify the Deliverables to make it non-infringing; or (iii) if options (i) or (ii) are not commercially and reasonably practicable as determined by MITS, terminate this Agreement. MITS will have no liability or obligation under this section with respect to any claim if such claim is caused in whole or in part by (1) Customer’s use of a Deliverable not in accordance with the Documentation; (2) modification of a Deliverable by anyone other than MITS; or (3) the combination, operation, or use of any Deliverable with other hardware or software not provided by MITS where the Deliverables would not by itself be infringing. THIS SECTION 8.1 STATES MITS’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE DELIVERABLES OR MITS MATERIALS.

8.2        Customer will indemnify, defend and hold MITS harmless against any claim brought by a third party against MITS arising from or related to Customer’s (i) use of the Deliverables in any manner other than as expressly permitted hereunder, and (ii) violation of applicable law. Customer shall not settle any claim against MITS without MITS’s prior written consent.

8.3        The indemnification obligations in this section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.

9 LIMITATION OF LIABILITY

9.1        Waiver of Consequential Damages.  IN NO EVENT WILL MITS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9.2         Limitation of Monetary Damages.  MITS’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER SHALL BE LIMITED TO THE TOTAL FEES RECEIVED BY MITS FOR THE RELEVANT ORDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.

9.3         Applicability.  THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.

10 GENERAL PROVISIONS

10.1      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.

10.2      Notices.  All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as listed in the Order, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.

10.3      Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.4      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 full force and effect.

10.5      Assignment.  Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of MITS (not to be unreasonably withheld), except that Customer may assign this Agreement in its entirety, without the consent of MITS, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of MITS. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.6      Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.

10.7      Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) for the duration of the Force Majeure Event. The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.

10.8      Entire Agreement.  This Agreement, including the applicable Order(s) and Deliverable (https://www.makingitsafer.org/tiers/), constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No terms or conditions set forth on any purchase order, preprinted form or other document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.