Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) is made between Metal Corp. (“METAL”), a New Hampshire corporation and the party that subscribes (“Licensee”) for the Metal Corp’s Products, Services and Support.  

This “Agreement” consists of this Metal Cloud Subscription Agreement and each Order Form (as defined below).

Except where Licensee has previously negotiated and agreed to a Master Subscription Agreement with Metal Corp, this Agreement supersedes any previously agreed upon terms.

Licensee’s use of “METAL Products, Services and Support” is governed by METAL’s Products, Services & Support License.

Where Customer is using any of METAL’s Products, Services and Support including Trial Licenses, Licensee consents to this Agreement by clicking Agree or using the METAL Products & Services.

Definitions.

a.     “Addendum” means any written modification to this Agreement executed by Metal Corp. and specifying additional services to be provided by Metal Corp. to the “Licensee” beyond those identified in this document.

b.     “Affiliate” means any entity, directly or indirectly, controlling, controlled by, or under common control with, Metal Corp.

c.     “User Account” means: (i) Licensee User Accounts that have been authorized by the Licensee for Metal Corp. to utilize for Services API integration.

d.     “Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of Metal Corp. includes, without limitation, the documentation, and the services, including any software code and all algorithms, methods, techniques, and processes revealed or utilized therein. Confidential Information of Metal Corp. includes Licensee Data. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Licensee;(ii) the Discloser regularly discloses to third parties without restriction ondisclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to Recipient; or (iv) is independently developed by the Recipient without use of Confidential Information.

e.     “Discloser” means the party providing Confidential Information to the Recipient.

f.      “Documentation” means the then-current Metal Corp. provided documentation relating to the features, functions, and use of METAL’s Products & Services.

g.     “Effective Date” means the date on which the Licensee signs this document.

h.     “Intellectual Property Rights” means any and all rights in patents, copyrights,trademarks and service marks.

i.      “Licensee Data” means information provided, entered transferred or uploaded foruse by or with the Services.

j.      “Licensee Metadata” means the mapping data, rules, connectors, or jobs developedby Metal Corp. that are unique to the Licensee and that are used to accomplishthe data transformation using the Services.

k.     “Licensee Restriction” means any limitation on the use of the Services identifiedin any Addendum to this agreement executed by Licensee and Metal Corp., such aslocations and/or connection points.

l.      “Licensee” means the party receiving Services from Metal Corp.

m.    “Metadata” means data that describes and gives information about other data.

n.     “Order Form” means an ordering document, online order, or Term Sheet enteredinto between Customer and METAL, or online order process completed by Customerand confirmed by METAL, including any applicable terms, in each case specifyingthe METAL Products, Services & Support to be provided under this Agreement.

o.     “PersonalInformation” means information provided to Metal Corp. by or at thedirection of Licensee, or to which access was provided to The Metal

Corp. in the course of Metal Corp.’sservices performed under this Agreement that: (i) identifies or can be used toidentify an individual (including, without limitation, names, signatures,addresses, telephone numbers, e-mail addresses and other unique identifiers);or (ii) can be used to authenticate an individual (including, withoutlimitation, employee identification numbers, government-issued identificationnumbers, passwords or PINs, financial account numbers, credit reportinformation, biometric or health data, answers to security questions, and otherpersonal identifiers). Personal Information shall include any non-publicpersonal information regarding any individual that is subject to applicablenational, state, regional, and/or local laws and regulations governing theprivacy, security, confidentiality, and protection of non-public personalinformation.

p.     “Residual Knowledge” means ideas, concepts, know-how or techniques related to theDiscloser's technology and Confidential Information that are retained in theunaided memories of the Recipient who had rightful access to ConfidentialInformation.

q.     “Fees” means the fees for the Services.

r.      “SaaS” means Software as a Service.

s.     “Products,Services & Support” means the Products, Services and Support relateddata transformation services and support that Metal Corp. provides the Licenseeunder this Agreement.

t.      “Software” means collectively or individually the computer software programs for which MetalCorp. uses to provide the Licensee with data transformation Services.

u.     “Term” means the period following the Effective Date for the Services.

v.     “Third Party Licensor” means a third party whose software products have beenmade available to Metal Corp. for distribution and/or licensing under the termsof its agreement with Metal Corp.

w.    “Updates” means generally available updates, enhancements, or modifications to thethen-current, general release version of the Software that are not separatelypriced or licensed as new products.

x.     “User ID” means a unique user identification credential used in combination with a uniquepassword to access the Services.

1.     Products& Services License.

Subject to the terms and conditions of this SaaSbased offering, Metal Corp. hereby grants to the Licensee a non-exclusive,nontransferable, limited (without the right to re-license) license to use thedata transformation services offered by Metal Corp., during the associatedagreement Term, in a hosted operating environment, for Licensee’s B2B’s purposeof extracting, transforming, and loading data from one licensed data source toany other affiliated Metal Corp. Licensee’s data source.  Metal Corp. offers, its Licensees a limited termlicense to connect, extract, transfer and load data using the “Service”, asreasonably necessary for Metal Corp. to provide the Services in accordance withthis Agreement. Subject to the limited license granted herein, Metal Corp.acquires no right, title, or interest from Licensee under this Agreement in orto any Licensee Data (excluding Metadata) or non-Metal Corp. applications.  

2.     Anyrights not expressly granted in this Agreement are expressly reserved.

a.     Documentation. Licensee may make areasonable number of copies of the Documentation surrounding the Service forits internal use in accordance with the terms of this Agreement.

b.     Restriction. Licensee’s use of the Services is subject to any Restriction specified in an Addendum signed by Metal Corp.and the pertinent Licensee.

c.     Additional Restrictions on Use of the Software and Services. Licensee is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of the Service Platform or software used to provide the Services. Except as expressly provided by this Agreement, Licensee is prohibited from using the Service to provide service bureau services to third parties. A Licensee will not allow the Service to be used by or disclose any part of the Service to, any person except Authorized Users. Licensee acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Service, and Licensee will neither export or re-export, directly or indirectly, the Service platform, nor any direct product or service thereof in violation of such laws or use the Service for any purpose prohibited by such laws.

d.     Intellectual Property Rights Notices. Licensee is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in the Service Platform or that Metal Corp. other wise provides with the Services. Licensee must reproduce the unaltered IntellectualProperty Rights notice(s) in any full or partial copies that Licensee makes of the Documentation.

e.     Ownership. Use of the Service does not grant any ownership rights in or to the Service platform and/or the Services, theDocumentation. Licensee Data shall be the sole property of Licensee; however, MetalCorp. may aggregate anonymous statistical data regarding use and functioning of its system by its various services platforms, and all such data including meta data (none of which shall be considered Licensee Data), will be the sole property of Metal Corp.

3.     Services.

a.     Service Provided.  Metal Corp. will provide the ability for the Licenseeto automate the transfer of identified data from their Customer RelationshipManagement database to any other Metal Corp. Licensee’s Customer RelationshipManagement database.  Each Licensee willbe billed based on the above selected pricing model.

b.     Hosted Environment. Metal Corp. will providethe data transformation hosting environment, including the hardware, equipment,and systems services platform on which Metal Corp. supports the use of theService, on systems located at a facility selected by Metal Corp.

c.     Support. Metal Corp. shall provide Licenseewith access to Support (via the internet, telephone or other means establishedby Metal Corp. Support that is required because of customer modifications totheir associated systems which impacts “The Service”, will be billed on a perhour charge which will be applied at a rate of $200/hr.

d.     Licensee User Accounts.   Licensee User Accounts are used to gainaccess to the Services Platform’s Customer portal that provides a variety ofinformation relating to the customer’s integration. The Licensee is responsiblefor maintaining the confidentiality of Licensee’s User IDs and passwords andshall cause its Authorized Users to maintain the confidentiality of their UserIDs and Passwords. Licensee is responsible for all uses of and activitiesundertaken with User IDs registered on Licensee’s account. Licensee agrees toimmediately notify Metal Corp. of any unauthorized use of Licensee’s User IDsof which Licensee becomes aware.

e.     Connectivity. Metal Corp. will beresponsible for maintaining connectivity from the network where the “Service”is hosted to the Internet that is capable of servicing the relevant Internettraffic to and from the Licensee’s environment. Licensee is responsible forproviding connectivity to the Internet for itself, its Authorized Users, andthe data sources from which and to which Licensee’s data is being transformed. Licenseeshall also be responsible for ensuring that latency and available bandwidthfrom the Licensee’s systems to Metal Corp.’s hosted systems is adequate to meetLicensee’s desired level of performance. If Licensee requires a VPN or privatenetwork connection to the Services, Licensee is responsible for all costsassociated with any specialized network connectivity required by theSubscription.

f.      Monitoring. Metal Corp. shall have noobligation to correct a problem caused by Licensee’s negligence but willattempt to notify the Licensee if alerted. If the Licensee needs support to fix the problem, Metal Corp. will workwith the Licensee to fix the problem under the guidelines outlined in section4c.

4.     Payment and Taxes.

a.     Payment. Licensee shall pay Metal Corp. Feesin the full amount as outlined in the “Pricing” section for a period outlinedin the Service Term. Except as otherwise set forth in this Agreement, Fees arenon-refundable.

b.     Taxes. Metal Corp. Services Group’s fees donot include any taxes, levies, duties or similar governmental assessments ofany nature, including, for example, value-added, sales, use or withholdingtaxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Licensee is responsible forpaying all Taxes associated with Licensee’s purchases hereunder. If Metal Corp.has the legal obligation to pay or collect Taxes for which the Licensee isresponsible under this Section 5b, Metal Corp. will specify the amount of suchtaxes and will require payment of such taxes while the Fees are paid unless Licenseeprovides Metal Corp. with a tax exemption certificate authorized by theappropriate taxing authority. Metal Corp. is solely responsible for taxesassessable against it based on its income, property, and employees.

5.     Confidential Information.

a.     Confidentiality. The Confidential Information disclosed under thisAgreement may be used, disclosed, or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement. Except as otherwise permitted under this Agreement, the Recipient will not knowingly disclose to any third party or make any use of the Discloser’s ConfidentialInformation. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. The nondisclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years afterRecipient’s receipt of that item; provided, however, that Licensee’s obligations to maintain the Software, Services and Documentation as confidential will survive in perpetuity. Licensee and Metal Corp. shall be responsible for the breach of the confidentiality terms contained in thisSection by any of its directors, officers, employees, Authorized Users, agents, accountants, and advisors. Notwithstanding the foregoing, this Section is not intended to prevent (a) a Recipient from using Residual Knowledge, subject to any Intellectual Property Rights of the Discloser, or (b) Metal Corp. from using aggregated data regarding the use of the Services to provide reports or analytics to the Licensee or to improve the performance of Metal Corp.’s services, provided such data does not contain any Personal Information regardingLicensee, its employees, customers or Authorized Users. If the Recipient should receive any legal request or process in any form seeking disclosure ofDiscloser’s Confidential Information, including User IDs or passwords, or if the Recipient should be advised by counsel of any obligation to disclose suchConfidential Information, the Recipient shall (if allowed by law) provide theDiscloser with prompt notice of such request or advice so that the Discloser, at the Discloser’s sole expense, may seek a protective order or pursue other appropriate assurance of the confidential treatment of the ConfidentialInformation. Regardless of whether a protective order or other assurance is obtained, the Recipient shall furnish only that portion of the Discloser’s ConfidentialInformation which is legally required to be furnished and to cooperate with any reasonable efforts by the Discloser to assure that the information is maintained in confidence by the party to whom it is furnished. Metal Corp. may use Licensee’s name and logo for marketing purposes in a list of customers using the Services.

b.     Indemnification. Metal Corp. represents that it has the right to grant to Licensee the right to use the Services asset forth in this Agreement without violating any rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by Metal Corp. Metal Corp. will defend, indemnify and hold Licensee harmless from any third party claim that the infringes any copyright, trademark or trade secret owned or controlled by the third party; provided, however, that (i) Metal Corp.shall be notified promptly in writing by Licensee of any such claim; (ii) MetalCorp. shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (iii) Licensee shall cooperate with Metal Corp., at Metal Corp. expense, in a reasonable way to facilitate the settlement or defense of such claim; (iv) such claim does not arise from Licensee’s modifications not authorized by Metal Corp.; and (v)should the Software become, or in Metal Corp.’s opinion likely to become, subject to such claim of infringement, then Licensee shall permit Metal Corp.,at Metal Corp.’s option and expense, either (a) to procure for Licensee the right to continue using the Software, or (b) to replace or modify the Software so that it becomes non-infringing and performs in a substantially similar manner to the original service, or (c) upon failure of (a) or (b), despite the reasonable efforts of Metal Corp., to terminate this Agreement and (if paid)return the current month’s fee paid by Licensee for the Services. THE FOREGOING SETS FORTH METAL CORP.’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

6.     Term and Termination.

a.     Term. The Term for the Services shall be the duration noted above in the Service Term from the Effective Date for data transformation Services. The Term for data transformation Services may be extended for additional term period upon payment of fees as specified in anAddendum. Unless the Term is extended by payment, the Services shall terminate upon the expiration of the Term.  

b.     Effect of Termination. Upon termination of the Services, Licensee’s use of the Services shall immediately terminate. Termination of this Agreement will be without prejudice to the parties’ other rights and remedies pursuant to thisAgreement, unless otherwise expressly stated herein.

c.     Retention of Licensee Metadata. Meta data shall be the sole property of Metal Corp. Upon termination or expiration of this Agreement, Metal Corp. shall retain Licensee Metadata for a period of time at Metal Corp’s discretion.

d.     Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement.

7.     Notices.

All notices and other communications required or permitted under this Agreement must be in writing and will bedeemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first classmail; by email: or sent by overnight courier.

8.    Force Majeure.

Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement if such failure or delay is the result of circumstances beyond its reasonable control, including, without limitation, an act of God, such as earthquake, pandemic, hurricane, tornado, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, labor dispute or strike, governments action, blockage, embargo, failure of electrical service, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing.

9.    Assignment.

This Agreement shall inure to the benefit of, and is freely assignable to, Metal Corp.’s successors and assignees of rights in the Software and

Service. Licensee may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Metal Corp., whether by operation of law or otherwise, including in connection with a change in control, merger, acquisition, consolidation, asset sale or other reorganization, and any attempt at such assignment or transfer will be void.

10.  No Waiver.

The waiver or failure of MetalCorp. to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement.

11.  Jurisdiction.

This Agreement and all disputes and causeof action arising from or related to this Agreement will be exclusivelygoverned by and construed in accordance with the laws of the State of NewHampshire (exclusive of its conflicts of law principles). This Agreement shallbe deemed made in Merrimack County, New Hampshire, and Licensee and Metal Corp.agree that any suit, action or proceeding brought by either party against theother in connection with or arising from this Agreement shall be brought solelyin the state or federal courts situated in Merrimack County, New Hampshire, andeach party expressly consents to the jurisdiction and venue of each such court.

12.  LIMITATIONS OF LIABILITY.

a. LIMITED LIABILITY OF METAL CORP. EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER ANY SECTION, THE TOTAL LIABILITY OF METAL CORP.,ITS AFFILIATES AND THIRD PARTY LICENSORS IN CONNECTION WITH OR RELATED TO THE

SOFTWARE, THE SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED THE FEES PAID OR PAYABLE TO METAL CORP. HEREUNDER.

b. EXCLUSION OF DAMAGES. IN NO EVENT WILL METAL CORP., ITS AFFILIATES OR THIRD-PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER METAL CORP. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

14.  Severability.

If any of the terms, or portions thereof,of this Agreement are invalid or unenforceable under any applicable statute orrule of law, the court shall reform the contract to include an enforceable termas close to the intent of the original term as possible; all other terms shallremain unchanged.

15.  Compliance with Laws.

Licensee will comply with all laws, rules, and regulations applicable to the use of the Software and the Services including, without limitation, by not migrating any Licensee Data that is illegal, defamatory, or that infringes any third-party proprietary rights.

16.  Whole Agreement.

This Agreement and applicable Addendum constitutes the entire agreement between Licensee and MetalCorp. relating to the subject matter hereof and supersede and extinguish all prior oral and written communications between the parties about thisAgreement’s subject matter. Any Addendum which may be executed in connection with this Agreement, or the Services does not modify, supplement or add terms to this Agreement. Any additions to, or modifications of, this Agreement shall be binding upon the parties only if the same shall be in writing and duly executed by Licensee and by a duly authorized representative of Metal Corp. Licensee agrees that its purchases pursuant to this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Metal Corp. regarding future functionality or features.

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