BY AGREEING TO A DOCUMENT INCORPORATING THESE SMARTWINNR LICENSE TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDER FORM”) SMARTWINNR AND CUSTOMER AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY SMARTWINNR PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO CUSTOMER AS SET FORTH IN SUCH ORDER FORM. AS TO ANY PARTICULAR ORDER FORM, THE ORDER FORM, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDER FORM AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDER FORM EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.

Customer and Company agree as follows:

“Company” means SmartWinnr, Inc. DBA SmartWinnr or one of its affiliates, as set forth in the Order Form.

“Customer” means the party to whom Company is to provide products or services pursuant to the Order Form (whether identified as “Customer”, “customer”, “client” or similar designation in the Order Form). If “Customer” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Customer” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.

1. Customer’s Use of the Service.

1.1 Company Obligations.

Company shall: (i) make the Service available in accordance with the Documentation to Customer during the Term pursuant to this Agreement; (ii) not use Customer Data except to provide the Service, or to prevent or address service or technical problems, in accordance with this Agreement and the Documentation, or in accordance with Customer’s instructions; and (iii) not disclose Customer Data to anyone other than Authorized Parties.

1.2 Customer Obligations.

Customer may enable access of the Service for use only by Authorized Parties solely for the internal business purposes of Customer and its Affiliates in accordance with the Documentation and not for the benefit of any third parties. Customer is responsible for all Authorized Party use of the Service and compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (b) prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized access or use. Customer shall not: (i) use the Service in violation of applicable Laws; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Service; (iv) interfere with or disrupt performance of the Service or the data contained therein; or (v) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation. Customer shall be liable for the acts and omissions of all Customer Affiliates relating to this Agreement.

2. Fees.

2.1 Invoices & Payment.

Fees for the Service will be invoiced in accordance with the relevant Order Form. The time at which payment shall be due from Customer shall be forty-five (45) days from receipt of the invoice except as otherwise stated in an Order Form, all fees are quoted and payable in United States Dollars and are based on Service rights acquired and not actual usage. Customer shall provide Company with complete and accurate billing and contact information including a valid email address for receipt of invoices. Upon Company’s request, Customer will make payments via wire transfer.

2.2 Non-cancelable & non-refundable.

Except as specifically set forth to the contrary under Section “Warranty Remedies”, Section ”Indemnification by Company”, Section “Termination”, all payment obligations under any and all Order Forms are non-cancelable and all payments made are non-refundable. The license rights for the number of Employees set forth on any respective Order Form cannot be decreased during the Term.

2.3 Overdue Payments.

Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Company’s discretion, late charges at the rate of 1 percent per month on the unpaid balance.

2.4 Non-Payment and Suspension of Service.

If Customer’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Company reserves the right to suspend the Service upon thirty (30) days written notice, without liability to Customer, until such amounts are paid in full.

2.5 Taxes.

Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). The Customer is responsible for paying the Taxes that would be levied against the Customer by government authorities. The Company will invoice the Customer for such Taxes if the Company believes it has a legal obligation to do so and the Customer agrees to pay such Taxes if so invoiced.

3. Proprietary Rights.

3.1 Ownership and Reservation of Rights to Company Intellectual Property.

Company and its licensors own all right, title and interest in and to the Service, Documentation, and other Company Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Service, and Documentation, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

3.2 License Grant.

Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, right to use the Service and Documentation, solely for the internal business purposes of Customer and Affiliates and solely during the Term, subject to the terms and conditions of this Agreement within scope of use defined in the relevant Order Form.

3.3 License Restrictions.

Customer shall not (i) modify, copy or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Company in the provision of the Service and Documentation. except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.

3.4 Ownership of Customer Data.

Customer shall own all right, title and interest in and to the Customer Data.

3.5 Customer Input.

Company shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Customer Input. Company shall have no obligation to make Customer Input an Improvement. Customer shall have no obligation to provide Customer Input.

3.6 Aggregated Data Use.

Company owns the aggregated and statistical data derived from the operation 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 and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Company from utilizing the Aggregated Data for purposes of operating Company’s business, provided Company’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event does the Aggregated Data include any personally identifiable information.

4. Confidentiality.

4.1 Confidentiality.

A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other party’s prior written permission.

4.2 Protection.

Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

4.3 Compelled Disclosure.

A disclosure by one party of Confidential lnformation of the other party to the extent required by Law shall not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

4.4 Remedies.

If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.

4.5 Exclusions.

Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party. Customer Data shall not be subject to the exclusions set forth in this Section.

5. Customer Data.

5.1 Protection and Security.

During the Term of this Agreement, Company shall maintain a formal security program that is designed to: (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Such security program will conform to the Company Information Security Policy.

5.2 Backup and Data Recovery.

Company shall make periodic backups of Customer Data and restore Customer Data lost due to Company error or disaster in accordance with Company’s documented backup and recovery process. In the event that Customer deletes Customer Data and requires Company’s assistance to restore it, Company will provide reasonable assistance at its then-current rates for such services. Throughout the Term, Customer shall have the right to access and extract Customer Data through the Service using the methods described in the Documentation.

5.3 Unauthorized Disclosure.

If either party believes that there has been a disclosure of Customer Data to anyone other than an Authorized Party or Company, such party must promptly notify the other party. Additionally, each party will reasonably assist the other party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted.

6. Warranties & Disclaimers.

6.1 Warranties.

Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it. Company warrants that during the Term (i) the Service shall perform materially in accordance with the Documentation; and (ii) the functionality of the Service will not be materially decreased during the Term.

6.2 Warranty Remedies.

As Customer’s exclusive remedy and Company’s sole Liability for breach of the warranty set forth in Section 6.1 (i) and (ii), (a) Company shall correct the non-conforming Service at no additional charge to Customer, or (b) in the event Company is unable to correct such deficiencies after good-faith efforts, Company shall refund Customer amounts pre-paid but unused, from the date Company received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Company, but no later than thirty (30) days of the first date the deficiency is identified by Customer.

6.3 DISCLAIMER.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES SET FORTH IN SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.

7. Indemnification.

7.1 Indemnification by Company.

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement is directly attributable to such combination, (v) where Customer continues allegedly infringing activity after being notified in writing thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

7.2 Responsibility of Customer.

Customer is responsible for the content of its Customer Data. Customer shall not upload Customer Data that infringes the rights of, or causes harm to, a third party or violates any applicable Law.

8. Limitation of Liability.

8.1 Limitation of Liability.

TO THE MAXIMUM EXTENT PERMlTTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 OF THIS AGREEMENT, AND EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4 OF THIS AGREEMENT, AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S (OR COMPANY’S THIRD PARTY LICENSORS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR COMPANY’S SERVICE DELIVERY DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID FOR THE FIRST TWELVE MONTH PERIOD).

8.2 Exclusion of Damages.

EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 OF THIS AGREEMENT, AND EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4 OF THIS AGREEMENT, AND EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR, CONSEQUENTlAL DAMAGES,-HOWEVER CAUSED OR FOR ANY LOST PROFITS, LOSS OF USE, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9. Term & Termination.

9.1 Term of Agreement.

The Initial Service Term of the Agreement is that which is set forth in the Order Form (together with any period of extension under this section, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.

On the date that is 60 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Customer shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the fees to be paid to Company for such Services during such period of extension shall be equal to the annualized amount of the fee applicable to all Services to which Customer was subscribed as of the Extension Date, plus any applied discount, multiplied by the length of the term in years. Fees for the period of extension hereunder shall be due upon extension of the Term, and shall be payable as invoiced. Company will invoice the fees for any period of extension in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date.

9.2 Termination.

Either party may terminate this Agreement,: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event 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. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon any termination by Customer pursuant to this section, Company shall refund Customer any prepaid fees for the affected Service that were to be provided after the effective date of termination.

9.3 Effect of Termination.

Upon any termination of this Agreement, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under section 9.5) and Company Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Company prior to the effective date of termination. Upon termination for cause by Company, all future amounts due under all Order Forms shall be accelerated and become due and payable immediately.

9.4 Retrieval of Customer Data.

Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Company will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to thirty (30) days after such request is received by Company. After such thirty (30) day period, Company will have no obligation to maintain or provide or delete any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data. Additionally, during the Term of the Agreement, Customers can extract data using process as outlined in the Documentation. If Customer requires Company’s assistance, Customer may acquire Company professional services at Company’s then-current billing rates pursuant to a separately executed Statement of Work and Professional Services Agreement. Customer will determine the scope of the professional services engaged to extract data from the Company system and as such may increase or decrease Company’s professional services involvement in order to control costs.

9.5 Surviving Provisions.

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, indemnification obligations, warranty disclaimers, and limitations of liability.

10. General Provisions.

10.1 Relationship of the Parties.

The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

10.2 Notices.

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Notices to Company shall be addressed to the attention of Company’s signatory in this agreement. Notices to Customer shall be addressed to Customer’s signatory of this Agreement. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.

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 or any other 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 Force Majeure.

Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood. fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

10.5 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 (which consent shall not 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 in connection with a merger, acquisition. corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full, except that Customer shall have no right to assign this Agreement to a direct Competitor of Company. Any attempt by a party 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 Dispute Resolution and Applicable Law.

Except for (a) disputes involving confidentiality pursuant to Section 4 of this Agreement, or for (b) disputes involving indemnification pursuant to Section 7 of this Agreement, or for (c) a breach of a material term of this Agreement, any dispute arising with regard to any aspect of this Agreement between the Parties shall be resolved as far as possible by mutual discussion and consultations. In case the dispute remains unresolved through consultations and deliberations for a period of 90 days, it shall be settled by reference to arbitration under the rules of California International Arbitration Council to be conducted by a single arbitrator. This Agreement and the arbitration proceedings shall be governed by the Laws of the State of California, USA, without regard to its conflict of law provisions. The arbitration proceedings shall be conducted in English and the venue for such arbitration shall be California. For avoidance of doubt, the matters set forth in 10.6 (a), (b) and (c) above shall not be subject to arbitration. Further, whether or not a term of this Agreement is “material” shall be determined by a court of competent jurisdiction.

11. Miscellaneous.

This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment, however, no Order Form shall vary sections 2.4, 3.1, 3.4, 3.5, 4, 6, 7, 8, 9, or 10 of this Agreement unless the Order Form clearly states that the parties are agreeing to do so and any such variance shall be effective only with respect to that specific Order Form. This Agreement 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 signed by the party against whom the modification, amendment or waiver is to be asserted. 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. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Company may use Customer’s name and logo in lists of customers, on marketing materials and on its website. This Agreement may be executed electronically, by electronic mail, facsimile and in counterparts, which taken together shall form one binding legal instrument.

12. Amendment.

Company may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Customer informs Company that it does not accept such amendments. In the event Customer informs Company that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Company and Customer.

13. Definitions.

When used in this Agreement with the initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Master Agreement, including the Company Production Support and Service Level Availability Policy (as may be updated from time to time), any exhibits or attachments hereto, and any fully executed Order Form.

“Authorized Parties” means Customer’s Employees and third-party providers authorized to access or receive Customer Data by Customer (i) in writing, (ii) through the Service’s security designation, or (iii) by system integration or other data exchange process.

“Competitor” means any entity that may be reasonably construed as offering competitive functionality or services to those offered by Company.

“Confidential Information” means (a) any software utilized by Company in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).

“Customer Data” means the electronic data or information submitted by Customer or Authorized Parties to the Service.

“Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Employees and Authorized Parties relating to the operation or functionality of the Service, excluding Customer Data.

“Documentation” means Company’s electronic and hardcopy user guide for the Service, which may be updated by Company from time to time.

“Employee” means employees, consultants, contingent workers, independent contractors, and retirees of Customer and its Affiliates whose active business record(s) are or may be managed by the Service and for which a subscription to the Service has been purchased pursuant to an Order Form. The number of permitted Employees will be as set forth in the applicable Order Form. Information related to former employees, consultants, contingent workers, independent contractors and retirees in the form of static, historical records may be maintained in the system but shall be excluded from the calculation of Employees unless self-service access to the record through the Service is provided to the individual.

“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation, as developed by Company and made generally available for use.

“Initial Service Term” means the initial term mentioned in the Order Form.

“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

“Order Form” means the separate ORDER FORMs under which Customer subscribes to the Company Service pursuant to this Agreement that have been fully executed by the parties.

“Service” means Company’s software-as-a-service applications as described in the Documentation and subscribed to under an Order Form.