Subscription Services Agreement.

1. Services

Krossings will provide marketing, sales management services (the “Service(s)”) to Customer pursuant to an Order Form defining the use of such Services by Customers, incorporated herein by reference as Exhibit A and made part of this Agreement.

2. Data Ownership

Customer User Data. In order for Krossings to provide the Services, Krossings may collect information about Customer and about visitors to Customer’s website (“Customer User Data”). All Customer User Data is the sole property of Customer and Krossings has no ownership rights in any Customer User Data. Customer User Data includes, without limitation, all sales and marketing information provided by Customer to Krossings, and all individually identifiable information about visitors to Customer’s website, including statistical and demographic information. Krossings shall adopt adequate archival procedures to store the Customer User Data. In the event of any loss or corruption of Customer User Data, Krossings shall use its commercially reasonable efforts to restore the lost or corrupted Customer User Data from the latest backup of such Customer User Data maintained by Krossings in accordance with its archival procedures. Krossings shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer User Data caused by any third party. KROSSINGS’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER USER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE KROSSINGS’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER USER DATA. Krossings reserves the right to establish or modify its general practices and limits relating to storage of Customer User Data.

Grant of License to Krossings of Customer User Data. Customer grants to Krossings a limited, royalty-free license to use, reproduce and modify Customer User Data solely as necessary for Krossings to provide Services for Customer and to perform its other obligations to Customer hereunder. Customer’s license to Krossings includes the right to collect Customer User Data, either directly from Customer or through other means such as the use of redirects and pixels. Krossings will not disclose Customer User Data to any third party unless such disclosure is (i) approved by Customer, or (ii) is made by Krossings in response to legal process and provided that Krossings has given Customer reasonable notice of, and a reasonable opportunity to contest, such legal process.

Grant of License to Krossings of Aggregated Anonymous Data. So that Krossings may improve and promote its offerings, Customer grants Krossings a perpetual, unlimited, royalty-free license to aggregate Customer User Data with other data (and/or segregate portions of the Customer User Data) so that it is non-personally identifiable with respect to both Customer and visitors to Customer website(s) (“Aggregated Anonymous Data”). Customer agrees that Krossings may create Aggregated Anonymous Data, and may use, reproduce, distribute, execute, display and commercially use the Aggregated Anonymous Data at its discretion. Krossings may disclose Aggregated Anonymous Data to third parties, publish it through its website, blog, or by other means, and may transfer or sublicense its rights with respect to Aggregated Anonymous Data. Customer shall have no interest in such Aggregated Anonymous Data or any use thereof by Krossings. This license shall survive the termination of this Agreement.

3. Customer Obligations

Customer Responsibility. Customer is solely responsible for all activity occurring under Customer’s User Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer is solely responsible for maintaining the confidentiality of Customer’s User Account and password and for restricting access to Customer’s computer(s), and Customer is responsible for all activities that occur under Customer’s User Account by Customer or any Authorized User of Customer’s User Account, including but not limited to Customer Orders. Customer shall promptly notify Krossings of any suspected or alleged violation of this Agreement including any unauthorized use of any password or User Account or any other known or suspected breach of security. Customer shall cooperate with Krossings with respect to: (a) investigation by Krossings of any suspected or alleged violation of this Agreement and (b) any action by Krossings to enforce this Agreement. Krossings may suspend or terminate any User Account upon notice to Customer in the event that Krossings reasonably determines that such User Account has been involved in a violation of this Agreement. Customer shall remain liable for the losses incurred by Krossings or others due to any unauthorized use of Customer’s User Account or any User Account created by Customer, including but not limited to any charges associated with any Customer Advertising Account or Customer Order.

Marketing. Customer grants Krossings a non-exclusive, perpetual, royalty-free, fully paid-up limited right to use Customer’s name, trademarks, service marks and logos in the production of marketing materials promoting the Company and the Service, provided that such use is in accordance with Customer’s trademark and intellectual property use guidelines. All goodwill from the use of such properties shall inure to Customer’s benefit.

4. Confidential Information

“Confidential Information” shall mean any data or information, oral or written, treated as confidential that is disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that relates to past, present, or future research, development or business activities, including but not limited to any unannounced products and services, any information relating to products or services, developments, services documentation (in whatever form or media provided), programs, inventions, processes, plans, financial information, revenue, transaction volume, forecasts, projections, customers (past, present or prospective) and any and all information or data in connection with such customers (including, without limitation, any and all customer personal identification information (“PII”) as may be defined under the laws of each and every jurisdiction exercising or claiming to exercise control over or protection of each such customer) or the legal or commercial terms of this Agreement. For the avoidance of doubt, the Customer User Data, Data Exchanges and Aggregated Anonymous Data shall be deemed to be the Customer’s Confidential Information. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the Receiving Party prior to the date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the Receiving Party; (iii) it has been rightfully received by the Receiving Party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; or (iv) it has been approved for release by written authorization of the owner of the Confidential Information.

Each Party hereby agrees: (i) to hold the other Party’s Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder; (iv) not to copy or reverse engineer any such Confidential Information; and (v) that a Party shall obtain from any employee, subcontractor, or agent such confidentiality agreements as it may customarily, from time to time, obtain from such persons and/or otherwise make reasonable efforts to limit access to any such Confidential Information to those persons who have a legitimate “need to know” and that the Receiving Party is subject to and otherwise bound in writing to comply with the Receiving Party’s confidentiality obligations under this Agreement.

Notwithstanding any provision in this Agreement to the contrary, each Party may disclose Confidential Information of the other Party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information shall be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it.

5. Representations and Warranties; Limitation of Liability; Indemnity

Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out its provisions; (b) it is duly authorized to execute and deliver the Agreement and to perform its obligations; and (c) the Agreement is valid and legally binding upon it and the execution, delivery and performance thereof by such party does not conflict with any other agreement, instrument or understanding to which it is a party or by which it may be bound nor would violate any law or regulation of any court, governmental body or agency having jurisdiction over it.

Customer represents and warrants that (i) the content or services provided by Customer and marketed by Krossings will not contain any information or materials that is unlawful, hateful, threatening, obscene, defamatory or offensive, and (ii) the content or services provided by Customer and marketed by Krossings through the Search Engine Marketing Services or Additional Services will not violate any law, regulation or rights of any third party including, without limitation, intellectual property rights or rights of publicity or privacy.

Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY ESTIMATES OF ANY PERFORMANCE IMPROVEMENT IN CUSTOMER’S ADVERTISING CAMPAIGN. KROSSINGS DOES NOT WARRANT THE RESULTS OF THE SERVICES OR ADDITIONAL SERVICES, THAT THE SERVICES OR ADDITIONAL SERVICES WILL MEET CUSTOMER’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE), THAT THE PROVISION OF THE SERVICES OR ADDITIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR THAT ANY ERROR IN THE SERVICES OR ADDITIONAL SERVICES WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT THE SERVICES OR ADDITIONAL SERVICES MAY BE INACCESSIBLE, UNAVAILABLE OR INOPERABLE FROM TIME TO TIME.

Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY, FOR (I) ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION OR BUSINESS, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR AS ARISING UNDER THE INDEMNIFICATION PROVISIONS CONTAINED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNT IN EXCESS OF THE AMOUNT IN AGGREGATE PAID TO KROSSINGS HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

Indemnification. Each party (an “Indemnitor”) hereby agrees to indemnify, defend and hold the other party, and its respective officers, directors, shareholders, affiliated entities and persons, employees, agents, representatives and attorneys (the “Indemnitee”) harmless from and against any and all third party claims or proceedings, including all liabilities, costs and expenses (including without limitation, reasonable attorneys’ fees and related costs and expenses, whether or not suit is filed or proceedings instituted thereon) related thereto, arising in connection with any breach or default by the Indemnitor of its representations and warranties hereunder. Each Indemnitor’s obligations of indemnification under this paragraph shall be conditioned upon the Indemnitee (i) providing the Indemnitor prompt written notice of any such claim, (ii) cooperating with the Indemnitor, at Indemnitor’s expense, in connection with the defense and/or settlement of the claims, and (iii) permitting the Indemnitor to control the investigation, defense, settlement and appeal of the claim, provided that any settlement that involves liability or an admission on the part of the Indemnitee shall be first approved in writing by such Indemnitee. The Indemnitee may, at its expense, participate in the defense and settlement of the claim.

6. Miscellaneous

Entire Agreement. This Agreement, including the applicable Exhibits, Work Orders or Order Forms entered into hereunder, contains the entire understanding and agreement of the parties, incorporating herein all previous negotiations and agreements, superseding all prior or contemporaneous proposals, communications and understandings, whether written or oral.

Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.

Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.

Assignment. Neither party may assign this Agreement to a third party without the prior express written consent of the other party, which consent shall not be unreasonably delayed or withheld; provided however, either party may assign this Agreement to (i) an affiliate of such party, or (ii) any acquirer of all or of substantially all of such party’s equity securities, assets or business related to the subject matter of this Agreement.

Partial Invalidity. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to the Agreement.

Compliance with Law. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under the Agreement.

Independent Contractors. The relationship of the parties shall be solely that of independent contractors, and nothing in the Agreement, or in the business or dealings between the parties, shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.

Notices. Except as provided elsewhere herein, both parties must send all notices relating to the Agreement in writing via overnight mail (or international express mail by an internationally recognized courier) or email to the parties at the address and email address listed in the signature block or as maintained by Customer within Customer’s Krossings Service online account. Notices shall be effective five (5) days after the date of mailing.

Jurisdiction and Venue; Attorney’s Fees. This Agreement shall be governed by the laws of the State of California without respect to choice of law rules, and the parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in San Mateo County, California. Customer waives the personal service of any process upon it and agrees that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. The non-prevailing party in any dispute shall be responsible for the other party’s reasonable attorney’s fees.

Counterparts. This Agreement, and its exhibits, may be entered into by each party in separate counterparts and shall constitute one fully executed agreement upon execution by both Customer and Krossings.

Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, Internet disruption (including without limitation denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of nature.

Survival. All outstanding payment obligations, the complete sections entitled “Grant of License; Restrictions,” “Confidential Information” and “Representations and Warranties,” and the sub-sections entitled “Customer Responsibility,” “Survival,” and “Rights and Obligations Upon Expiration or Termination” survive the termination or expiration of this Agreement.

7. Fees, Term and Termination

Fees. As defined in Exhibit A to this Agreement.

Term. As defined in Exhibit A to this Agreement.

Termination. As defined in Exhibit A to this Agreement.

Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and Customer’s Authorized Users’ right to access and use the Services shall immediately terminate, Customer and Customer’s Authorized Users shall immediately cease all use of the Services, and Customer shall return to Krossings and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to Krossings. Upon expiration or termination of this Agreement, Krossings shall have no obligation to deliver any copy of the Customer User Data to Customer, and may delete such Customer User Data at any time.