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Impartner Subscription Agreement

THIS SUBSCRIPTION AGREEMENT (this Agreement) IS A LEGAL AGREEMENT between (Customer), and IMPARTNER, INC., a Delaware corporation (the Provider) having an office at 10713 South Jordan Gateway, Suite 120, South Jordan, UT 84095. As used in this Agreement, the term Service means, collectively, any and all web-based applications and modules of Provider to be provided to Customer as described in the order form to which this Agreement is attached or any subsequent order form mutually agreed to by the parties (collectively, the Order Form).

1. Ownership

In this Agreement, Provider is providing its web-based Service to Customer on a non-exclusive basis for use only on a web server hosted and controlled by Provider. Provider owns and retains all rights to the Service. In no event does this Agreement entitle Customer to any rights of ownership in any of the work flow design, process flow design, or the code in the underlying page, program, database, software, or other code used by Provider to draw or render the elements on the web page, including derivatives thereof, all of which is considered to be Provider's Confidential Information under this Agreement. Rights not specifically granted in this Agreement, including without limitation Federal and International Copyrights, are expressly reserved by Provider. Provider has all requisite rights to make the Service available to Customer.

Customer will never receive a copy of the software used to provide the Service (the Software). Because some of the Software is in a decompiled, human-perceivable form, Provider will never release the source code for any of the Software to Customer. The rights granted herein is entirely contingent upon Provider hosting the Service on a web server hosted and controlled by Provider, with the exception of Provider's Sales Force application, and never releasing any copies of the Software, which means that Customer will never host the Service itself and may never install the Software on any of its computers.

As between the parties, Customer, owns and retains exclusive rights to all data, graphics and webpage content which is provided to Provider by Customer to place into the Service's database (Customer Data), on behalf of Customer. Provider will automate a SQL backup of Customer's data every five days. With the exception of Customer Data, Provider owns all right to the graphics, content, and layout of the Service including any revisions and derivative works thereof. Specifically, Customer understands and agrees that with respect to the SalesForce Application, even though options within the application may be configured or modified by Customer such configuration or modification does not give Customer any right in or to the SalesForce Application or derivative works thereof, all of which is owned by Provider or its licensors.

At any time during an Applicable Term Customer may, via the System interface, access the Customer Data and download a copy of all data owned by Customer that has been entered into the Service database(s), at Customer's expense. Customer Data shall be available for such access and download fifteen (15) days after information has been entered into the respective product database.

Upon termination or expiration of this Agreement, Customer will be granted a period of thirty (30) days to download a copy of all Customer Data that has been entered into the Service database(s) in a standard machine readable format, provided that Customer's pays then current hourly prices for access to and use of the Service. If during this thirty day period Customer requires any assistance from Provider in extracting data owned by Customer or transferring such data to a third party (Transition Period), Customer shall notify Provider of its need for additional assistance, in writing, and any assistance rendered shall be subject to Provider's then current hourly and list prices. Following this thirty (30) day period, Provider shall remove all Customer Data from any media and shall destroy or securely erase such media.

Customer owns the Customer Data and any other data derived from Customer's access or use of the Service. Notwithstanding any other provision of this Agreement to the contrary, Provider may access, use and disclose any aggregate, statistical or de-identified data derived from Customer's access or use of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service, the performance results for the Service and any other aggregated, anonymized, statistical or de-identified data, as may be permitted under applicable law (the De-Identified Data), provided that Provider's access, use and disclosure of such De-Identified Data will not enable any third party to determine the identity of any individual or the details of any specific transaction included in the De-Identified Data. In addition, Provider may also access, use and disclose any De-Identified Data when combined or aggregated with de-identified data of other licensees or customers of Provider and nothing herein shall be construed as prohibiting Provider from utilizing the De-Identified Data for purposes of operating Provider's business, provided that Provider's access, use or disclosure of De-Identified Data will not enable any third party to determine the identity of any individual or the details of any specific transaction included in the De-Identified Data.

2. Provider Services; Term

Pursuant and subject to the terms and conditions of this Agreement, Provider agrees to make the Service available to Customer (the Subscription), solely and strictly in accordance with the terms, conditions and restrictions described herein. Customer's right to access and use the Service is non-exclusive, non-transferable, non-assignable and revocable as provided herein.

Except as explicitly provided in this Agreement, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted by Provider under this Agreement.

The term of the Subscription shall be as described in the Order Form.

During the term of the Subscription, Provider will create and maintain a database and computer infrastructure which hosts Customer's Data in connection with the Service and will provide the Service to access, to populate, maintain, manipulate, report and export Customer Data. Provider shall host the dedicated servers needed for Customer's use of the Service; such servers will be located at a Tier 1 Class A data center. This Agreement includes all future bug fixes, error corrections, new releases, updates and program improvements to the Service during the term of the Subscription. Any other services to be provided by Provider, such as customizations, program modifications or additions, new optional modules which add new functionality and new releases of net new products which have different names and different functionality from the Service are not included and shall be ordered pursuant to separate written statement of work by the parties, which is governed by the terms of this Agreement.

3. Confidential Information

Provider shall not disclose any Confidential Information (defined below) of Customer that Provider has been or hereafter becomes privy to by hosting data that is the property of the Customer, subject to the exceptions of this Agreement. Customer shall not disclose any Confidential Information of Provider and shall take all reasonable steps to protect the Service and related documentation against copying or unauthorized use. Customer shall not reverse engineer or copy the Software or the Service. The Software source code represents and embodies the confidential trade secrets of Provider. The Software source code, pricing, interfaces, data mappings, and embodied trade secrets are not licensed to Customer, and Customer shall take all reasonable measures to avoid any unauthorized disclosure of the same.

Customer and Provider each agrees (a) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as necessary to perform its obligations under this Agreement or otherwise as expressly permitted in this Agreement, and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the reasonable degree of care it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, the receiving party may disclose the Confidential Information of the other party to its responsible employees and consultants (collectively Responsible Persons) who have a bona fide need to know such Confidential Information, but only to the extent necessary to carry out the purposes of this Agreement, and only to the extent such Responsible Persons are bound in writing by non-use and non-disclosure obligations similar to those of this Agreement.

For the purposes of this Agreement, Confidential Information means information about or used in connection with the disclosing party's business or activities that is proprietary and confidential, which shall include all business, financial, technical, software and other information of a party (I) disclosed in writing and marked by such party as confidential or proprietary or (II) which is disclosed orally and (a) is identified as confidential at the time of disclosure and (b) within 5 days of such disclosure, is summarized in a written memorandum identifying the disclosure as confidential. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving party knew prior to receiving such information from the disclosing party, (d) the receiving party develops independently of any information originating from the disclosing party, or (e) any De-Identified Data related to or generated from the use of the Service.

Upon expiration or termination of this Agreement, each party will: (a) immediately cease all use of the other party's Confidential Information; and (b) within ten calendar days after such expiration or termination, certify in writing to the other party that it has permanently erased from computer memory, destroyed or returned to the other party the other party's Confidential Information, as well as any copies thereof on any media or in any form.

4. Indemnification for Infringement Claim

Provider shall, at its own expense indemnify, defend and hold harmless Customer and its directors, officers, employees, subcontractors and agents (the Customer Indemnified Parties), against any and all losses, liabilities, judgments, settlements, awards and costs (including legal fees and expenses) arising out of or related to any third-party claim against a Customer Indemnified Party alleging that Customer's use of the Service infringes or violates any patent, copyright, trade secret, trademark, or other intellectual property right. Customer shall promptly provide Provider with written notice of any claim which Customer believes falls within the scope of this Section. Customer's failure to provide written notice to Provider shall not effect Provider's indemnification obligations hereunder except to the extent that Provider is materially prejudiced thereby. At any time after Customer becomes aware of any such claim, Provider may procure for Customer the right to continue to use the Service and/or Services at its own expense. If Customer's continued use of the Service becomes, of if Provider believes that Customer's continued use may become impeded in any way due to such a claim, or the issuance of a related injunction or any other order preventing Customer from using the Service, then Provider shall, at its option and expense: (1) replace the Service with a compatible, functionally equivalent and non-infringing product; (2) modify the Service to avoid the infringement and retain the functionality of the Service; (3) obtain a license for Customer to continue use of the Service for the term of this Agreement; or (4) terminate this Agreement and provide a pro rata refund of any amounts pre-paid for the Service for any period of time following such termination.

Customer shall, at its own expense indemnify, defend and hold harmless Provider and its directors, officers, employees, subcontractors and agents ("Provider Indemnified Parties"), against any and all losses, liabilities, judgments, settlements, awards and costs (including legal fees and expenses) arising out of or related to any third-party claim brought against a Provider Indemnified Party alleging that information provided by Customer to Provider for use in connection with the Service, infringes or violates any patents, copyrights, trademarks, trade secrets, licenses, or other proprietary rights of any third party. Provider shall promptly provide Customer with written notice of any claim which Provider believes falls within the scope of this Section. Provider's failure to provide written notice to Customer shall not effect Customer's indemnification obligations hereunder except to the extent that Customer is materially prejudiced thereby. At any time after Customer becomes aware of any such claim, Customer may procure for Provider the right to continue to use the information for use in connection with the Service and/or Services at its own expense. Provider shall not be responsible for any delay or disruption to the Customer's use of the Service and/or Services, including any damages stemming therefrom, caused by a claim falling under this section.

5. Compliance with Applicable Law

Customer shall comply with all applicable laws, rules and regulations in its use of the Service (and any other software or hardware of Provider), including without limitation the federal CANSPAM ACT OF 2003. Customer agrees to indemnify Provider and its owners, officers, employees, representatives, agents, licensors, successors and assigns (collectively, the Provider Parties), and hold Provider each of the other Provider Parties harmless, from and against any and all claims, damages, charges, costs, expenses, causes of action, liabilities and other obligations resulting from Customer's failure to so comply.

6. Standards for Accepting Client Email Lists

Customer shall send emails on an Opt-In basis only; no email sends shall be made unless they are Opt-In and are in compliance with all applicable laws. Provider strongly urges Customer to send to double Opt-In lists only. In no event shall any Service be used to send SPAM. As used herein, Spam shall mean (a) unsolicited commercial email sent to a recipient who has not provided his/her/its email address directly to the sender or sent to a recipient who would not have a reasonable expectation of receiving email from the sender, or (b) any email advertising illicit or illegal activities, or (c) any electronic message sent to email addresses provided by a third party. Customer agrees that its data and lists loaded into the Service will not be used to send Spam, or otherwise constitute Spam, and that all emails sent by or on behalf of Customer will comply with the CANSPAM Act of 2003 and other applicable laws, and the Acceptable Use Policies of Provider's hosting and bandwidth providers. Customer accepts any and all liability for, and agrees to indemnify and hold harmless Provider and the other Provider Parties from and against, any and all costs, expenses, liabilities, damages and other obligations in connection with any and all complaints, fines, cleaning of IP addresses and/or other services required as a result of supplying Provider with addresses and/or sending electronic mail that do not comply with the foregoing.

7. Opt-Out Policy

All emails built and/or sent by or on behalf of Customer using the Service must use a built-in unsubscribe link. Clicking unsubscribe links in the Service will flag an email address of a contact in Customer's database as an Opt-Out and prevent sending of email to that contact email address in the future. Physical mailing addresses are required for all emails sent through the Service and by the CAN SPAM Act of 2003. Customer shall remove all contacts that have elected to unsubscribe via US mail within 48 hours of receipt of the written request. Provider subscribes to major feedback loops and automatically unsubscribes all recipients who have registered complaints if and when Provider has sufficient information to do so.

8. License Fees

The fees to be paid by Customer to Provider for the Subscription shall be as agreed by the parties in a separate written (paper or electronic) agreement, and are payable within thirty (30) days of Customer's receipt of Provider's invoice. Subscription fees are applicable for the number of Partner Members listed in the pricing schedule. Customers who exceed the contracted level of Partner Members for three (3) months by more than ten (10) percent will be automatically notified and a new pricing level will be charged.

9. Service Fees

This Agreement does not include monthly customizations or program customizations or integrations. Any programming services requested by Customer will be subject to a separate statement of work. Hours will be approved by Provider in advance, and tracked online in Provider's TASK VIEW application. On-site training of Customer's employees will be available for $1,500 per day plus reimbursable expenses, upon mutual agreement of Customer and Provider. Additional services shall be available by Provider upon mutual agreement, for additional fees. Customers who exceed the allotted hours purchased in their support pack level (10, 20, 40 hour packs) will charged a fee of $125 per hour.

10. Reimbursable Expenses

In addition to the fees for the Subscription and for services, if and as applicable, Customer shall reimburse Provider for all expenses incurred by Provider with the prior approval of Customer in the performance of requested services, such as additions to the products, including but not limited to expenses of transportation in connection with providing services, reasonable expenses for out-of-town travel including meals, rental cars and lodging, professional and programming services which may be required such as secondary employees and other experts, as well as outside services such as programmers. Records of reimbursable expenses including statements and receipts shall be provided to Customer along with the invoice to which they pertain.

11. Arbitration

Any controversy or claim arising out of or relating to this Agreement or the use of the Service shall be settled by arbitration before a single arbitrator in Salt Lake City, Utah in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. If any arbitration is commenced between the parties to this Agreement, the substantially prevailing party shall be entitled to reimbursement of its costs and expenses, including without limitation attorney's fees, as determined by the arbitrator.

12. Default; Cure; Suspension; Termination

In the event Customer fails to make any payment when due hereunder, Provider shall give Customer written notice of such failure via certified mail. If such payment is not received by Provider within five (5) days after such written notice is sent by Provider, Provider may immediately either (a) terminate the Subscription and this Agreement without further notice, or (b) suspend the Subscription and performance of services under this Agreement. In the event of a suspension, the Subscription and this Agreement and any agreed upon services will be restored upon Provider's receipt of payment in full hereunder plus a late fee of ten percent (10%) of the amount of the late payment.

Other than Customer's payment default, in the event that either party believes the other has failed to substantially perform in accordance with the terms of the Agreement, the non-defaulting party shall submit written notice via certified mail to the defaulting party describing in detail the alleged deficiencies by the defaulting party. The defaulting party shall have 30 (thirty) days from the date notice was received to cure such deficiencies. If the deficiencies remain uncured after such 30 (thirty) day period, the non-defaulting party may terminate this Agreement.

In the event of any suspension or termination, Provider shall have no liability whatsoever to the Customer for delay or damage caused the Customer due to such suspension or termination. Any notices to be delivered to Provider hereunder shall be sent to the address of Provider set forth below. Any notices to be delivered to Customer hereunder shall be sent to the address last known by Provider for Customer. Upon termination of the Subscription and/or this Agreement, the terms, rights and obligations under this Agreement which by their nature should survive termination shall survive (such as, without limitation, Sections 1, 3 through 5, 8 through 13 through 15 and 17).

13. Governing Law

This Agreement shall be governed by the laws of the State of Utah.

14. Assignment and Transfer

Customer shall have no right whatsoever to transfer or assign this Agreement or the Subscription. Provider shall not assign this Agreement without the written consent of Customer, which shall not be unreasonably withheld, except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall be binding on the heirs, executors, administrators, successors and assigns of the respective parties.

15. Personnel Hiring Policy; Hiring Fees

Customer acknowledges and agrees that Provider has invested substantial time, money and other resources in building its professional staff. This staff constitutes a substantial company resource and valuable asset of Provider. In recognition of this fact, in the event Customer hires an employee of Provider during the term of this Agreement or within one year after termination of this Agreement, Customer agrees to and shall pay to Provider a fee in an amount equal to 30% of such new hire's first year salary, plus anticipated commissions and bonuses for the first year. This fee shall be payable immediately upon hire of the individual.

16. Entire Agreement

This Agreement represents the entire and integrated agreement between Customer and Provider, and supersedes all prior negotiations and/or representations. This Agreement may be amended or superseded only by written instrument signed by both the Customer and the Provider.

17. Limitations On Damages

In no event will Provider or any of the other Provider Parties be liable to Customer for any consequential, indirect, special, incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of or related to this Agreement, including but not limited to the use or inability to use the Service, or based on breach of contract, tort (including negligence), product liability or otherwise, even if Customer or any of the other Customer Parties have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose.

Except with respect to the parties obligations pursuant to Section 4 above, the liability of either party to the other for actual damages from any cause arising out of or related to this Agreement, and regardless of the form of the action (whether in contract, tort including negligence, product liability or otherwise), shall in no event exceed the fees paid hereunder to Provider during the twelve (12) month period prior to the event giving rise to the liability at issue. With respect to its obligations under Section 4 above, the liability of Provider or any other Provider Party to Customer for actual damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort or otherwise), shall in no event exceed the total amount fees paid by Customer to Provider hereunder.

The limitations set forth above in this section shall not apply to fees which are owed to Provider under this Agreement.

18. Notices

Any notices to be delivered pursuant to this Agreement shall be sent to below addresses:

TreeHouse Interactive Holding, Inc. (dba Impartner)
Attn: Bert Young
10713 South Jordan Gateway, Suite 120
South Jordan, UT 84095.

19. Representations and Warranties

Provider represents and warrants to Customer that the Service will perform in material compliance with the applicable documentation. In the event of any breach of the foregoing warranty, Provider will use commercially reasonable efforts to promptly repair or replace the Service so as to be conforming. In the event of any breach of the foregoing warranty extending for thirty (30) days or more, Customer may terminate this Agreement and receive a pro rata refund of any amounts pre-paid for the Service for any period of time following such termination.

Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. EXCEPT AS PROVIDED IN THIS SECTION 19, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Provider does not warrant, guarantee or make any representations regarding the use or the results of the use of the Service in terms of its correctness, accuracy, reliability, currentness or otherwise. The entire risk as to the results and performance of the Service is assumed by Customer.

During the term of this Agreement, Provider shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data as described in Provider's documentation. Provider represents and warrants that it has taken commercially reasonable steps to prevent the introduction of any viruses, Trojan horses, trap doors, protecting codes or any other internal components, devices or mechanisms designed to disrupt, disable, harm, or otherwise impair in any material respect the normal and authorized operation of the Service.

20. Force Majeure

Neither party shall be in default if a failure to perform any obligation hereunder is caused solely by supervening conditions beyond that party's reasonable control, including acts of God, civil commotion, strikes, labor disputes and governmental demands or requirements. When a party's delay or non-performance continues for a period of five (5) days or more, the other party may terminate this Agreement without penalty. Any prepaid amounts shall be refunded on a prorated basis.

21. Severability

If any of the provisions of the Agreement shall be invalid or unenforceable, the invalidity or unenforceability shall not invalidate or render unenforceable this Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.

22. No Waiver

No delay or omission by either party hereto to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof. A waiver by either of the parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant.

23. Headings

The headings of the articles and sections used in the Agreement are included for convenience only and are not to be used in construing or interpreting the Agreement.

24. Counterparts

The component documents of the Agreement may be executed in two counterparts, each of which shall be an original; and such counterparts together shall constitute one and the same Agreement.

25. Relationship of the Parties

The parties intend to create an independent contractor relationship and nothing contained in the Agreement shall be construed to make them partners, joint ventures, principals, agents or employees of the other. No officer, director, employee, agent, affiliate or contractor retained by Provider to perform work on Customer's behalf under the Agreement shall be deemed to be an employee, agent or contractor of Customer. Neither party shall have any right, power or authority, express or implied, to bind the other.

In witness whereof, the parties hereto have caused this Agreement to be executed as of the Effective Date.