PLATFORM AGREEMENT

This Platform Agreement (this "Agreement") is between Athenate Inc., a Delaware corporation ("Athenate"), and the customer identified in the Order Form ("Customer"). This Agreement sets forth the terms and conditions regarding Customer's use of Athenate's facilities management platform (the "Platform"). By accessing or using the Platform in any manner, Customer agrees to be bound by this Agreement.

The person entering into this Agreement on behalf of Customer represents and warrants that the person is a duly authorized representative with the authorization to act on behalf of Customer and bind Customer to this Agreement.

In consideration of the mutual promises set forth in this Agreement, the parties, intending to be legally bound, agree as follows:

Use of Platform; Order Form

Order Form. The specific details regarding Customer's use of the Platform will be set forth in an order form (the "Order Form"). In the event of a conflict between the terms of this Agreement and the terms of the Order Form, the terms of this Agreement shall control unless the language in the Order Form states that it is intended to supersede this Agreement.

Use of Platform. Customer may use the Platform during the Term. The Order Form sets forth the number of authorized users (each, a "User") that may access the Platform on behalf of Customer.

Responsibility for Users. Customer shall ensure that each of its Users uses the Platform in accordance with this Agreement. Any action by a User that is a breach of this Agreement will be deemed a breach of this Agreement by Customer.

Modifications to Platform. Athenate may modify and/or update the Platform from time to time. Athenate shall have no liability for any damage, liabilities, losses, or any other consequences that Customer, any of Customer's Users, or any other third party may incur as a result of modifications to the Platform.

Payment

In consideration for access to the Platform, Customer shall pay Athenate the fees set forth in the Order Form (the "Fees"). To the extent Athenate sends an invoice to Customer for Fees, all such Fees are due within 30 days of Customer's receipt of the applicable invoice. Payments not received on time are subject to a 1.5% late fee per month.

Restrictions

Customer may not:

  • modify, disclose, alter, translate or create derivative works of the Platform;
  • sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform;
  • reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Platform, in whole or in part;
  • use the Platform to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions;
  • use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person, or that violates any applicable laws;
  • interfere with or disable any features, functionality, or security controls of the Platform or otherwise circumvent any protection mechanisms for the Platform
  • copy, frame or mirror any part or content of the Platform;
  • build a competitive product or service, or copy any features or functions of the Platform;
  • interfere with or disrupt the integrity or performance of the Platform; or
  • attempt to gain unauthorized access to the Platform or related systems or networks.

Athenate may temporarily suspend Customer's access to the Platform if Athenate determines or reasonably suspects that Customer has or intends to violate, or has assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a "Service Suspension"). Athenate shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of a Service Suspension, and Customer shall not be entitled to any refunds of any Fees on account of any Service Suspension.

Term; Termination

Term. This Agreement commences on the date set forth in the Order Form, and will continue in effect until the expiration of the initial term identified in the Order Form (the "Initial Term"). At the end of the Initial Term, this Agreement will automatically renew for successive renewal periods of the same duration as the Initial Term (each, a "Renewal Term", and collectively with the Initial Term, the "Term") unless either party opts out of an upcoming Renewal Term by providing written notice to the other party at least thirty (30) days prior to the commencement of the upcoming Renewal Term. Athenate will notify Customer of Fee changes for a Renewal Term at least sixty (60) days prior to the commencement of that Renewal Term. Notwithstanding the foregoing, this Agreement may be terminated in accordance with this Section 4.

Termination for Cause. Either party may immediately terminate this Agreement upon notice if the other party (i) materially breaches this Agreement and such breach is not cured within 30 days after the breaching party receives notice of the breach from the other party, or (ii) ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within 90 days, or makes an assignment for the benefit of creditors.

Effect of Expiration or Termination. Upon expiration or termination of this Agreement, (a) Customer's right to access the Platform will terminate; (b) each party shall delete the other party's Confidential Information (except to the extent retention is required by applicable law); and (c) Customer shall pay all unpaid Fees owed as of the date of expiration or termination of this Agreement.

Obligations

Compliance with Law. Each party shall comply with all applicable laws applicable to its performance of this Agreement.

Intellectual Property and Data

Athenate Ownership. Athenate owns all right, title and interest (including intellectual property rights) in and to the Platform (collectively, the "Athenate Property").

Feedback. Customer is encouraged to provide feedback, comments, and suggestions for improvements to the Platform ("Feedback"). Any modifications to the Platform that Athenate makes based on the Feedback are deemed to be Athenate Property. Athenate has the right, but not the obligation, to use such Feedback without any obligation to provide Customer credit, royalty payment, ownership interest, or any other type of compensation.

Customer Data. As between Customer and Athenate, Customer owns all documentation and data that is provided by or on behalf of Customer to Athenate pursuant to this Agreement (collectively, the "Customer Data"). Customer hereby grants Athenate the right to use the Customer Data as necessary during the Term to provide the Platform to Customer. Customer is solely responsible for ensuring that the Customer Data is accurate.

Anonymized Data. Customer acknowledges and agrees that Athenate may anonymize Customer Data in a manner that it can no longer reasonably be used to identify Customer or individuals ("Anonymized Data"). Customer acknowledges that the Anonymized Data does not constitute Customer Data, and Athenate may use the Anonymized Data for the purpose of improving the Platform, to understand and analyze trends across Athenate's customers, and for any other purpose.

Confidentiality

Confidential Information. For purposes of this Agreement: "Recipient" means the party receiving Confidential Information (defined below) from the other party; "Discloser" means the party providing Confidential Information to the other party; and "Confidential Information" means any information whether written or oral that (i) is identified by the Discloser as being confidential, or (ii) should reasonably be expected by the Recipient to be confidential. For the avoidance of doubt, Customer Data is Customer's Confidential Information, but Anonymized Data is not. Notwithstanding the foregoing, Confidential Information does not include information that (a) becomes generally available to the public through no fault of Recipient, (b) was rightfully in possession of Recipient without obligation of confidentiality prior to receipt from Discloser, (c) is independently developed by Recipient without benefit of any Confidential Information, or (d) is rightfully received by Recipient from another source on a non-confidential basis.

Use and Disclosure. Recipient shall not use or disclose any Confidential Information of Discloser except to the extent necessary to perform its obligations or exercise its rights hereunder, including by disclosing Confidential Information to its employees, independent contractors, and advisors who have a need to know such information to enable Recipient to perform its obligations or exercise its rights hereunder, and who are bound to keep such information confidential (collectively, the "Representatives"). Recipient is responsible for its Representatives' compliance with this Section 7. Recipient shall give Discloser's Confidential Information at least the same level of protection as it gives its own Confidential Information of similar nature, but not less than a reasonable level of protection. All confidentiality obligations will survive termination of this Agreement. Upon written request from Discloser and subject to any legal obligation to preserve Confidential Information, Recipient shall promptly return or destroy all Confidential Information, except that neither party is obligated to purge information archived pursuant to their normal document retention procedures if the provisions of this section otherwise continue to be observed. The Recipient may disclose Confidential Information as required by law if the Recipient (a) gives the Discloser reasonable written notice to allow the Discloser to seek a protective order or other appropriate remedy, but only if such notice is legally permitted, (b) discloses only such information as is required by law, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

Injunctive Relief. As money damages may not be a sufficient remedy for any breach of confidentiality obligations herein, the Discloser will be entitled to seek specific injunctive relief as a non-exclusive remedy for any such breach.

Representations and Warranties

Mutual Representations and Warranties. Each party represents and warrants that (a) it has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (b) the execution of this Agreement and the performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound.

Customer Representations and Warranties. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Athenate and to grant Athenate the rights set forth in Section 6.

Disclaimers

General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ATHENATE'S SERVICES ARE PROVIDED "AS-IS" AND ATHENATE DISCLAIMS ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PLATFORM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE).

Indemnification

By Customer. Customer shall defend and indemnify Athenate and its officers, directors, employees, contractors, and agents (collectively, "Indemnitees") from and against any and all liability, damage, loss, cost, or expense, including reasonable attorneys' fees and expenses (collectively, "Costs"), arising out of or in connection with any actual claim, suit, action, or proceeding against Athenate or its Indemnitees by a third party as a result of (a) a breach of this Agreement by Customer, (b) the gross negligence or willful misconduct of Customer related to this Agreement, or (c) Athenate's authorized use of the Customer Data.

General Indemnity By Athenate. Athenate shall defend and indemnify Customer and its Indemnitees from and against any and all Costs arising out of or relating to any actual claim, suit, action, or proceeding against Customer or its Indemnitees by a third party as a result of (a) a breach of this Agreement by Athenate, or (b) the gross negligence or willful misconduct of Athenate related to this Agreement.

Infringement Indemnity by Athenate. Athenate shall defend and indemnify Customer and its Indemnitees from and against any and all Costs arising out of or relating to any actual claim, suit, action, or proceeding against Customer or its Indemnitees by a third party as a result of the infringement or misappropriation of third party intellectual property rights by the Platform. In the event of a claim pursuant to this Section 10(c), Athenate may, at its option and expense (i) obtain for Customer the right to continue to exercise the rights granted to Customer under this Agreement; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the Platform(s) to make them non-infringing. If none of subparts (i), (ii), or (iii) in the foregoing sentence are obtainable on commercially reasonable terms (as determined by Athenate), Athenate may terminate this Agreement, effective immediately, by written notice to Customer and refund to Customer any unused, prepaid Fees. Athenate's indemnification obligations do not extend to claims arising from or relating to: (i) any negligent or willful misconduct of Customer Indemnitees; or (ii) the use of the Platform by Customer in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use.

Procedure. A party seeking indemnification ("Indemnified Party") shall promptly notify the party against which indemnification is sought ("Indemnifying Party") upon becoming aware of any claim for which indemnification is sought and will: (a) provide reasonable cooperation to the Indemnifying Party, at the Indemnifying Party's expense, in connection with the defense or settlement of any such claim and (b) be entitled to participate at its own expense in the defense of any such claim. The Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third-party claim, except that the Indemnifying Party shall not, without the Indemnified Party's written consent, submit to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests.

Limitation of Liability

EXCEPT FOR LIABILITIES RELATING TO INDEMNIFICATION OBLIGATIONS, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND VIOLATIONS OF SECTION 7 (CONFIDENTIALITY), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, BUSINESS OR PROFITS, OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND (B) EACH PARTY'S CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO ATHENATE DURING THE 12-MONTH PERIOD PRECEDING THE CLAIM.

General

No Agency. Nothing in this Agreement creates an agency, franchise, joint venture, employment relationship, or partnership between the parties. The parties are and will remain independent contractors. Neither party has the authority to bind the other or to incur any liability or otherwise act on behalf of the other. Each party shall ensure the timely disposition of all of its employee matters in connection with its organization, including employee benefits, insurance, withholdings, taxes, and similar employee-related matters.

Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalid, illegal, or unenforceable provision will be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained herein will not in any way be affected or impaired.

Waiver. Neither party's failure to enforce strict performance of any provision of this Agreement will constitute a waiver of a right to subsequently enforce such provision, and no waiver of one obligation or condition will constitute a waiver of another obligation or condition. No waiver of this Agreement will be valid unless made in writing and signed by an authorized representative of the party providing the waiver.

Remedies. Except as otherwise stated herein, the remedies under this Agreement are intended to be cumulative and not exclusive.

Assignment. Either party may assign this Agreement, by operation of law or otherwise, without consent, to its successor in a merger or acquisition of all or substantially all of its assets, equity, or business to which this Agreement relates. Otherwise, assignment of this Agreement is prohibited without the consent of the other party.

Survival. The provisions of Sections 2, 4(c), 6 (except for the license grant in Section 6(c)), 7, 9, 10, 11, and 12 will survive any termination or expiration of this Agreement.

Entire Agreement; Amendment. This Agreement and the Order Form constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may not be amended except in a writing signed by authorized representatives of both parties.

Notice. Each party shall send any official notice given pursuant to this Agreement to the other party at the address stated in the Order Form by: (a) certified mail return receipt requested, (b) overnight courier, or (c) confirmed electronic mail.

Force Majeure. Neither party will be liable for any delays or failures of performance hereunder, except for payments, to the extent that performance of such party's obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, fires, floods, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts of terrorism or war, acts of government, civil unrest, or any other similar event or circumstance beyond its reasonable control ("Force Majeure Event"), except that the other party may terminate this Agreement upon written notice if the Force Majeure Event continues for more than 30 days.

Dispute Resolution. The parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this section. First, the parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the parties agree to participate in binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in San Francisco, California. The parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing party shall be entitled to costs and fees (including reasonable attorneys' fees). Either party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this section. In the event that the dispute resolution procedures in this section are found not to apply to a given claim, or in the event of a claim for injunctive relief as specified in the previous sentence, the parties agree that any judicial proceeding will be brought in the state courts of San Francisco County, California. Both parties consent to venue and personal jurisdiction there.

Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.