Terms of Subscription

These Terms of Subscription (“Terms of Subscription”) are applicable to any Order Form (as defined below) referencing these Terms of Subscription that is issued by Tread Technologies Inc. (or any of its affiliates that are specified in the Order Form) (such entity(ies), “Tread”) and accepted by the customer identified in such Order Form (the “Customer”). Each Order Form shall be subject to these Terms of Subscription, and these Terms of Subscription, along with all Order Forms, and any other operating policy, rule or guideline for the Services (as defined below) established by Tread from time to time, collectively constitute the “Agreement” by and between Tread and Customer. Order Forms may set out more than one order for Services (as defined below), each with their own terms and conditions (including their own Initial Terms), and each such order is a unique order and Order Form within the meaning of the Agreement.For clarity, “Customer” includes paying customers of the Platform (as defined below), as well as any non-paying user of the Platform that is required to agree to these Terms of Subscription as condition of using the Platform. 

In the event of any conflict or inconsistency between the provisions of any parts of the Agreement, the following shall apply: (A) The Data Processing Addendum (“DPA”) set forth in Exhibit “A” to these Terms of Subscription shall have priority over any other part of the Agreement, (B) Order Forms shall have priority over any other part of the Agreement other than the DPA, unless the Order Form expressly states otherwise. Capitalized terms have the meanings ascribed to them throughout the Agreement. The Agreement is a legally binding agreement between Customer and Tread that becomes effective upon the date specified in the Customer’s initial Order Form, or upon Customer’s first use of the Services, whichever comes first.

1. Platform Subscription; Related Services. During the Term (as defined below):
   1. Platform Subscription. Customer hereby subscribes for the access to the Platform described in each order form referencing these Terms of Subscription that is signed by both parties or to which both parties have indicated their agreement (for example, in an online form presented by Tread upon which Customer indicates its agreement). In these Terms of Subscription we refer to such an order form that is agreed by both parties as an “Order Form” or an “Order”. Subject to Customer’s and its Authorized User(s)’ compliance with the Agreement, Tread hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform features identified in each Order Form, solely through its Authorized Users, for the purpose described in the Order Form (the “Purpose”). Such access and use is limited to Customer’s internal business purposes. 
   2. For purposes of the Agreement: “Platform” means a proprietary cloud-based supply chain visibility platform and APIs, and any related mobile applications, delivering real-time visibility and predictive analytics, which, among other things, collects and processes data provided by or on behalf of Customer and third party participants within the Customer’s supply chain, including but not limited to Customer’s customers, contractors, material producers, shippers, carriers, telematics providers, other participants within the logistics and transportation industry and any other third party with which Customer shares Customer Data (as defined below), or from which Customer receives data, using the Platform, and allows for communication and data sharing and analysis between and among such entities, to enable them to better plan, manage and track material location and otherwise communicate and share data with one another, and 
   3. “Authorized Users” of the Customer means Customer’s and its affiliates’ employees, consultants, contractors, and agents who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to the Agreement. Customer agrees that its purchases of subscriptions to the Platform hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Tread regarding future functionality or features. 
      1. Customer or Authorized Users shall be responsible for providing the personal information used to create Authorized User account profiles. Customer and Authorized User shall 
      2. provide true, accurate, current and complete information as may be prompted by any registration forms on the Services (“Registration Data”); and 
      3. promptly update the Registration Data and any other information they provide to Tread, to ensure it remains true, accurate and complete.  Each set of login credentials for the Platform can be used only by a single, individual Authorized User.
   4. Services. Customer hereby purchases from Tread, and Tread agrees to provide to Customer, the implementation and related services described in each Order Form (“Services”). 
   5. Free Services. Tread may make a Service available to Customer free of charge by: 
      1. specifying the Service as free of charge on an Order Form; or
      2. providing a clear and conspicuous written notice that the Service is to be used at Customer’s own risk, provided as is, on a trial basis, or not officially supported (collectively (a) and (b), “Free Services”). 
      3. Notwithstanding any other provision of this Agreement, Customer acknowledges and agrees that: 
         1. Free Services may not include or allow access to all features and functionality available to paying customers;
         2. Free Services are made available to Customer at Customer’s sole risk without any warranty, support, maintenance, indemnification, commitment to availability, security or accuracy, or other related obligation of any kind under this Agreement, unless otherwise required by applicable law; 
         3. Tread may terminate Customer’s access to or use of a Free Service at any time, unless otherwise specified in writing, and Tread will not be liable for such termination; and 
         4. Customer Data submitted to a Free Service may be permanently lost, and Tread will not be liable for such loss.
2. Fees. 
   1. Customer shall pay to Tread any fees specified in an Order Form (the “Fees”) as specified in the Order Form, and 
   2. if not specified, upon receipt of the applicable invoice. 
   3. Tread may alter the Fees due under an Order Form at any time after the Initial Term upon at least 60 days notice to Customer, which notice may, in addition to any notice requirement in the Agreement, be given by Tread by email to the Customer’s email address specified in the Order Form or an email address customarily used by Customer in its communications with Tread; provided that, except as otherwise set forth in the applicable Order Form, such modified Fees will not become effective until the beginning of the next Renewal Term. 
   4. Fees which are not timely paid shall accrue late charges from the date such payment was due until the date paid at a rate equal to the lesser of 15% per annum or the maximum rate permitted by applicable law. 
   5. Customer may not offset or withhold Fees due under the Agreement for any reason, and Customer agrees to reimburse Tread for all reasonable costs (including attorney’s fees) incurred in collecting past due Fees. In addition, and without limiting any other rights and remedies, Tread may suspend Customer’s and its Authorized Users’ access to the Platform and/or provision of the Services in the event that any Fees are 30 or more days overdue. 
   6. Customer will reimburse Tread for reasonable, out-of-pocket expenses incurred by Tread in the course of providing professional services specified in an Order Form, in accordance with that Order Form. Customer agrees to promptly notify Tread in writing of any changes to its billing information during any Term (as defined below). 
   7. Tread reserves the right to correct any billing errors or mistakes that Tread identifies in an invoice or after a payment is received. Tread may accept payment in any amount without prejudice to Tread’s right to recover the balance of the amount due under an Order Form or to pursue any other right or remedy. 
   8. Amounts due to Tread from Customer shall not be withheld or offset against amounts due or alleged to be due to Customer from Tread. If Customer requires a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect or delay Customer’s obligation to pay any amounts due hereunder.  
   9. All Fees are non-refundable unless otherwise expressly stated in the Order Form.
3. Term. 
   1. The term of this Agreement shall commence on the effective date stated in the first Order Form and end on the date specified in the Order Form (the “Initial Term”), after which time these Terms of Subscription and each Order Form hereunder shall automatically renew for successive one-year periods (each, a “Renewal Term“) until such time as either party provides written notice of non-renewal to the other party no later than 30 days before the last day of the Initial Term or then-current Renewal Term, as the case may be (the Initial Term and each Renewal Term, collectively, the “Term”). If the Order Form does not specify an Initial Term that Initial Term and any of its Renewal Terms are deemed to be monthly.
   2. Notwithstanding the foregoing, either party may terminate the Agreement immediately upon written notice to the other party in the event that the other party declares bankruptcy or breaches any material term (for clarity, including any breach by Customer of a payment obligation, the Acceptable Use Policy, (as defined below) set forth in the Agreement and fails to cure such breach within 60 days from the date of receipt of written notice thereof, and Tread may terminate the Agreement immediately upon written notice to Customer if Customer has misappropriated or infringed Tread’s intellectual property or proprietary rights.
   3. Upon termination or expiration of the Agreement, all then-in-force Order Forms shall terminate and Customer shall, and shall inform its Authorized Users to, discontinue use of the Platform and the Services and return, remove, or destroy (with written certification) Tread’s Confidential Information. Sections 3, 4, 5, 7(c), 8, 9, 11, 12 and 13 and the DPA of these Terms of Subscription shall survive any termination or expiration of the Agreement.
4. Intellectual Property.
   1. Tread Materials. All right, title, and interest in and to the Platform and the Services (including all updates, customizations, and/or modifications thereto) and any associated documentation or other materials provided in or with the Platform and the Services (“Documentation”), including all intellectual property rights therein, (individually and collectively, the “Tread Materials”) are and will remain with Tread and its licensors, and/or its or their affiliates. The structure, organization, and code of the Platform and the Services are the valuable trade secrets and Confidential Information of Tread, its licensors, and/or its or their affiliates.
   2. Data.
      1. Customer Data. As between Customer and Tread, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all the data and information uploaded, submitted or otherwise made available by or on behalf of Customer to the Platform, including through its Authorized Users and through APIs integrating the Platform with third party systems licensed by Customer or its service providers or contractors, and all intellectual property rights relating thereto (“Customer Data”).
      2. License of Customer Data to Tread; Third-Party Consents.  Customer hereby grants to Tread a non-exclusive, royalty-free, worldwide license to use the Customer Data as is necessary or useful to Tread to enforce the Agreement and exercise its rights and perform its obligations hereunder, including as expressly provided under the Agreement, including for any data sharing described in clause (4.2.4) of this Section or elsewhere in the Agreement. Customer represents and warrants that it has the right to provide Tread with the Customer Data for the purposes described in the Agreement, including any sharing of Customer Data through the Platform, and covenants that Customer shall be responsible and liable for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Platform, including any sharing of Customer Data through the Platform (including the further sharing of Customer Data by third parties with which Customer shares Customer Data through the Platform). In particular, to the extent any Customer Data contains any personal information or personally identifiable information within the meaning of applicable privacy law, Customer shall comply with applicable privacy law to the extent required to permit Tread to use the Customer Data to provide the Services in accordance with this Agreement, and Customer acknowledges the provisions of clause (4.2.6) of this Section.  For clarity, Customer is responsible for obtaining any consents required under applicable law for Tread to communicate electronically or by telephone with any Authorized User or third party with which Customer wishes to share Customer Data through the Platform, or with which Tread must communicate in order to perform the Services as directed by Customer, and represents, warrants and covenants that it shall have obtained any such consents prior to any such communication and that such consents shall remain in force at the time of such communication.
      3. General Learning, Aggregate Data. Tread keeps track of Platform usage and performance data to better serve its customers and improve customer experience. Tread may reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, methods, processes, and techniques) that Tread develops or acquires in the course of Customer’s use of the Platform or of the Services. In addition, Tread may anonymize or aggregate Customer Data (such anonymized or aggregated data, “Aggregate Data”) to prepare reports, studies, analyses, enhancements, other features and other work product; provided, however, that under no circumstances shall Tread distribute or otherwise make available data that is identifiable as Customer Data to any third party, other than to Tread’s affiliates or Customer’s Authorized Users or to any third party approved by Customer in writing or authorized by Customer through the Platform (including any approved under clause (4.2.4) of this Section). 
      4. Data Sharing Through the Platform. The Platform permits the Customer to initiate collaboration and data sharing with third parties and to accept requests from third parties to collaborate and share data provided by or on behalf of the third parties. The Customer acknowledges that the license granted in clause (4.2.2) permits Tread to share Customer Data with the third parties that Customer collaborates with using the Platform, in the manner in which Customer shares its Customer Data using the Platform, and that such third parties may in turn initiate collaboration and data sharing of that Customer Data with other third party users of the Platform, all in accordance with the features available in the Platform, and the features purchased by Customer and third parties, from time to time.  Customer acknowledges that if it chooses to stop sharing any Customer Data, such action shall only be applicable to new Customer Data, and all Customer Data previously shared by Customer with third parties through the Platform may after such action still be available to those third parties through the Platform, all in accordance with the features available in the Platform, and the features purchased by Customer and third parties, from time to time. 
      5. Customer represents and warrants that it has all rights necessary to share the Customer Data with third parties through the Platform, and that any such sharing shall not be a breach of the Agreement or violate any applicable laws.  Customer also represents, warrants and covenants and that it shall only use any data it receives from third parties through the Platform in accordance with the Agreement, and in particular in accordance with clauses (1.1) and (4) of these Terms of Subscription, and all applicable laws, and that it shall be responsible and liable for the use of such data by any other third party with which it shares such third party data.
      6. Personally Identifiable Information; Privacy Policy; Data Processing Addendum. Any Customer that is an individual, and each Authorized User, acknowledges that Tread may collect, use and disclose their personally identifiable information that they provide to Tread in the use of the Services, all in accordance with Tread’s Privacy Policy located at https://www.tread.io/privacy-policy.  To the extent that Customer provides Tread with any Personal Data of any Data Subject, the DPA shall apply to Tread’s use of that information.  “Personal Data” and “Data Subject” as used in this clause have the meanings given to them in the Data Processing Addendum.
      7. Feedback. Customer grants Tread a worldwide, irrevocable, perpetual, sublicensable, transferable, non-exclusive license to use and incorporate into Tread’s products and services any feedback or suggestions for enhancement that Customer or its Authorized Users provide to Tread, without any obligation of compensation.
      8. Reservation of Rights. Except as expressly set forth in the Agreement, no other rights or licenses, express or implied, are granted under the Agreement by either party. No ownership of any intellectual property rights of either party is assigned or transferred to the other party, except as expressly provided herein.
      9. Restrictions; Suspension. All use of the Platform by its Authorized Users will be considered use by Customer and Customer shall be liable for the Authorized Users’ compliance with the Agreement. Customer shall notify Tread promptly of any unauthorized access or use of the Platform that violates the Agreement. Tread may from time to time adopt and in accordance with the Agreement amend an acceptable use policy (the “Acceptable Use Policy”), and Customer shall, and shall cause Authorized Users to, comply with the terms of the Acceptable Use Policy.  The Acceptable Use Policy is incorporated into and forms a part of the Agreement Any other software or services that are included in the Platform and are not proprietary to Tread are licensed subject to the applicable license, all of which are incorporated herein by reference if identified in any Documentation or otherwise made available to Customer. Tread shall have the right to immediately suspend access to the Platform if Customer’s or its Authorized Users’ use or access of the Platform breaches the Agreement, results in a risk of loss or damage to the Platform, Tread’s other systems, data, or property, or the data or property of any other person.
5. Confidentiality. 
   1. Generally. Each party (the “Receiving Party”) agrees that all business, technical, financial and other confidential or proprietary information that it obtains from the other party (the “Disclosing Party”) is the confidential information of the disclosing party (“Confidential Information”). 
   2. Each party agrees to treat as confidential all Confidential Information of the other party, not to use such Confidential Information for any purpose other than to the limited extent necessary to perform and/or exercise its rights under the Agreement, and not to disclose such Confidential Information to any third party other than
      1. its and its affiliate’s legal counsel, accountants, agents, consultants, service providers, contractors, officers, and/or employees (“Representatives”) in each case on a need to know basis and subject to confidentiality obligations at least as protective as those set forth herein or 
      2. as set forth in clause (5.4) below. Each party shall ensure that its affiliates and Representatives comply with the terms and conditions of the Agreement. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. 
   3. Upon discovery of an unauthorized disclosure of Confidential Information, the receiving party shall use its good faith efforts to prevent any further disclosure or unauthorized use thereof and shall notify the disclosing party without any delay. “Confidential Information” means all information about business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential”. 
      1. The parties agree that the Customer Data constitutes the Confidential Information of Customer. Customer authorizes Tread to disclose Customer Data to Customer’s Authorized Users and third parties as provided for in the Agreement and as permitted through the Platform, and as otherwise provided in writing. The parties agree that as between the parties, data shared by a third party with Customer through the Platform is the Confidential Information of Tread, and Customer may not use such data except in accordance with the Agreement unless it has written permission to the contrary by Tread and the applicable third party.  The parties agree that the terms set forth in these Terms of Subscription, in each Order Form, as well as the Tread Materials, the Documentation, and the Aggregate Data constitute the Confidential Information of Tread.
   4. Exceptions. Notwithstanding the foregoing, Confidential Information shall not include any information which 
      1. is or becomes within the public domain through no act or omission on the receiving party’s part in breach of the Agreement, 
      2. was lawfully in the receiving party’s possession without any restriction on use or disclosure prior to its disclosure by the disclosing party under the Agreement, 
      3. is lawfully received by the receiving party from another source subsequent to the date of the Agreement without any restriction on use or disclosure, 
      4. is independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information, as evidenced by contemporaneous written record, or 
      5. is required to be disclosed pursuant to any governmental statute or regulation or by order of any court of competent jurisdiction or other lawful authority. 
      6. In the case of disclosure pursuant to, the receiving party shall timely inform the disclosing party of all such legal or governmental proceedings so that the disclosing party may attempt by appropriate legal means to limit or condition such disclosure, and the receiving party shall further use commercially reasonable efforts to limit the disclosure and maintain confidentiality to the maximum extent possible.
6. Security and Fraud Controls.
   1. Tread is responsible for protecting the security of Customer Data in its possession and will maintain commercially reasonable administrative, technical, and physical procedures to protect all the Customer Data that is stored in Tread’s servers from unauthorized access and accidental loss or modification. However, Tread cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such Customer Data for improper purposes.  In addition, Tread has no responsibility for the use by any third party of Customer Data it receives from Customer through the Platform.
   2. Tread may provide, suggest or mandate security procedures and controls intended to reduce the risk to Customer of fraud or security breaches (“Security Controls”). These Security Controls may include processes or applications that are developed by Tread or by third parties, including but not limited to providing two-factor authentication for Authorized Users logging into their Tread account. Customer agrees to review all Security Controls and choose those that are appropriate for its business to protect against unauthorized transactions and, if necessary, use other procedures and controls not provided by Tread.
7. Representations and Warranties. 
   1. Mutual. Each party represents and warrants that:  
      1. it has all corporate authority to execute and perform the Agreement; 
      2. it is duly organized and in good standing under the laws of the jurisdiction of its organization; 
      3. it will comply with all applicable laws and regulations in carrying out its responsibilities and exercising its rights hereunder; and
      4. it is not a party identified on any governmental or export exclusion list. 
   2. By Tread. Tread represents and warrants that it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under the Agreement. In addition, Tread represents and warrants that, consistent with industry standards, it will maintain will maintain commercially reasonable administrative, technical, and physical procedures for protecting the security of all non-public Customer Data entered into the Platform. Customer must notify Tread in writing of any alleged failure by Tread to comply with these warranties promptly after it becomes aware of such failure.
   3. DISCLAIMER. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS OF SUBSCRIPTION, TREAD AND ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, 
      1. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, 
      2. WARRANTIES REGARDING PLATFORM UPTIME OR DOWNTIME, OR 
      3. WARRANTIES AS TO THE ACCURACY OF RESULTS THAT MAY BE OBTAINED BY CUSTOMER OR ANY OTHER PERSON BY USING THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE PLATFORM MAY BE DOWN FROM TIME TO TIME FOR ROUTINE MAINTENANCE AND/OR OTHER REASONS. 
      4. IN NO EVENT SHALL TREAD BE LIABLE FOR 
         1. ANY PLATFORM DOWNTIME, ERRORS WITHIN OR CAUSED BY THE PLATFORM OR OTHER FAILURES IN PERFORMANCE OF THE PLATFORM, 
         2. CLAIMS ARISING OUT OF COMMUNICATIONS INITIATED BY CUSTOMER OR ANY THIRD PARTY THROUGH OR WITHIN THE PLATFORM, OR 
         3. ANY MISINFORMATION AND/OR FRAUD COMMITTED BY ANY USER OF THE PLATFORM. CUSTOMER IS RESPONSIBLE FOR THE TRANSFER OR DISCLOSURE OF CUSTOMER DATA INITIATED OR CAUSED BY CUSTOMER OR AUTHRIZED USERS VIA THE FUNCTIONALITY OF THE PLATFORM. TREAD WILL HAVE NO LIABILITY FOR INTERFERENCE WITH OR DISRUPTION OF, OR MODIFICATION OR DELETION OF DATA OR CONTENT PROCESSED BY, THIRD PARTY SERVICES OR APPLICATIONS IN CONNECTION WITH CUSTOMER DATA TRANSFERRED OR DISCLOSED TO OR FROM SUCH THIRD-PARTY SERVICES OR APPLICATIONS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT RELATED TO THE SERVICES, TREAD WILL NOT BE RESPONSIBLE FOR ANY BREACH OR LOSS RESULTING FROM CUSTOMER’S SECURITY CONFIGURATION OR ADMINISTRATION OF THE SERVICES. 
         4. TREAD WILL NOT BE RESPONSIBLE FOR UNAVAILABILITY OF THE SERVICES RESULTING FROM: NON-TREAD OWNED EQUIPMENT OR SOFTWARE, OR CONNECTIVITY ERRORS ARISING FROM CUSTOMER’S NETWORK OR DATABASES; SERVICES MAINTENANCE; OR EVENTS OUTSIDE OF TREAD’S CONTROL. 
         5. ANY SERVICE PROVIDED BY TREAD: 
         6. LABELED “BETA SERVICE”, “DEVELOPER RELEASE”, OR SIMILAR ON AN ORDER; OR 
            1. ACCOMPANIED BY A CLEAR AND CONSPICUOUS WRITTEN NOTICE THAT THE SERVICE IS TO BE USED AT CUSTOMER’S OWN RISK, PROVIDED AS IS OR NOT OFFICIALLY SUPPORTED (COLLECTIVELY , A “BETA SERVICE”); MAY NOT BE COVERED BY THE SECURITY MEASURES AND CONTROLS DESCRIBED HEREIN OR ANY SERVICE LEVEL COMMITMENT PROVIDED UNDER THIS AGREEMENT. ACCORDINGLY, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TREAD EXPRESSLY DISCLAIMS ALL SECURITY MEASURES AND CONTROLS AND ANY SERVICE LEVEL COMMITMENT PROVIDED UNDER THIS AGREEMENT WITH RESPECT TO ALL BETA SERVICES.
8. Limitation on Liability.
   1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, AGGRAVATED OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THE AGREEMENT, THE PLATFORM, OR THE SERVICES, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ANY CLAIM RELATING TO THE AGREEMENT, THE PLATFORM, THE SERVICES, OR OTHERWISE, OTHER THAN CLAIMS FOR INDEMNITY OR FOR THE NON-PAYMENT OF FEES, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO TREAD HEREUNDER DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE. 
   2. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS, AND ANY EXCLUSION OF DAMAGES INCLUDED IN THIS AGREEMENT REPRESENT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) WHICH IS REFLECTED BY THE FEES PAID
9. Indemnification. 
   1. By Tread. Tread shall defend Customer, its affiliates and their respective successors, assigns, officers, directors and employees (each a “Customer Indemnified Party”) against any claim, demand, suit, or proceeding made or brought against such Customer Indemnified Party during the Term by a third party alleging that Customer’s or any of its Authorized Users’ use of the Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (for purposes of this Section (8.1), “Claim against Customer”), and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim against Customer that are specifically attributable to such Claim against Customer, or those costs and damages agreed to in a monetary settlement of such Claim against Customer; provided that Customer 
      1. promptly gives Tread written notice of the Claim against Customer; 
      2. gives Tread sole control of the defense and settlement of the Claim against Customer (provided that Tread may not settle any Claim against Customer unless the settlement unconditionally releases such Customer Indemnified Party of all liability for the Claim against Customer); and 
      3. provides to Tread all reasonable assistance, at Tread’s expense. If the Platform becomes, or in Tread’s opinion is likely to become, the subject of a Claim against Customer, Tread may, at its option and expense, either 
         1. procure for Customer the right to continue using the allegedly infringing or misappropriated materials; 
         2. replace or modify the same so that they become non-infringing; or 
         3. terminate Customer’s right to use all or part of the Platform and give Customer a refund or credit (at Tread’s discretion) for the fees actually paid by Customer to Tread for the prior twelve month period for the relevant Platform features as of the date of termination, less a reasonable allowance for the period of time Customer actually used the relevant Platform features. 
      4. Notwithstanding the foregoing, Tread will have no obligation of defense or indemnification or otherwise with respect to any claim or demand based upon 
         1. any use of the Platform not in accordance with the Agreement; 
         2. any modification of the Platform made by or content provided by any person other than Tread; 
         3. Customer’s continuation of the allegedly infringing activity after being notified thereof and provided modifications, replacements, or other remedies that would have avoided the alleged infringement or misappropriation; 
         4. Customer’s use of the Services in combination with technology or services not provided by Tread, if the Services or use thereof would not infringe without such combination; and/or 
         5. Customer Data.  
   2. By Customer. Customer shall defend Tread, its affiliates and their respective successors, assigns, officers, directors and employees (each a “Tread Indemnified Party”) against any claim, demand, suit, or proceeding made or brought against such Tread Indemnified Party by a third party arising out of Customer Data, or Customer’s or its Authorized Users’ use of the Platform, the Services or Tread Data in violation of the Agreement or applicable law (for the purposes of this Section (9.2), “Claim against Tread”) and shall indemnify Tread for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Tread in connection with any such Claim against Tread that are specifically attributable to such Claim against Tread, or those costs and damages agreed to in a monetary settlement of such Claim against a Tread; provided that Tread 
      1. promptly gives Customer written notice of the Claim against Tread; 
      2. gives Customer sole control of the defense and settlement of the Claim against Tread (provided that Customer may not settle any Claim against Tread unless the settlement unconditionally releases such Tread Indemnified Party of all liability for the Claim against Tread); and 
      3. provides to Customer all reasonable assistance, at Customer’s expense.
   3. Exclusive Remedy. This Section (9) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim, including, without limitation, for infringement, misappropriation, or otherwise.
10. Force Majeure. Excluding payment obligations hereunder, neither party shall be liable to the other party for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies or power.
11. Governing Law. The Agreement shall be construed and governed by the laws of the Province of Ontario. Any dispute or claim arising out of or in connection with the Agreement or the performance, breach or termination thereof, shall be subject to the exclusive jurisdiction of the courts of the Province of Ontario. This Section shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
12. Export Law Assurances. Each party shall comply with all applicable export control laws and regulations. Without limiting the foregoing, Customer is responsible for complying with any local laws which may impact Customer’s right to import, export or use the Services and the Documentation.
13. Miscellaneous. Each party shall pay its own costs and expenses in connection with the Agreement and its activities hereunder. Tread may subcontract portions of the Services to be performed hereunder to third parties, it being understood that Tread shall be responsible for actions taken by each such subcontractor hereunder. The Agreement supersedes all prior written or oral agreements between the parties regarding the subject matter hereof (including any contradictory or additional language in any purchase order). Customer shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by the Agreement, excluding taxes based solely upon Tread’s income derived hereunder. The relationship between the parties under the Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. The Agreement may be executed in counterparts and by electronic signature and may further be exchanged by facsimile or in scanned form, each of which shall constitute originals and all of which, when taken together, shall constitute the same original. The Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns, and shall not be assignable by either party without the advance written consent of the other party, except in the case of assignment to an entity acquiring substantially all or all of a party’s assets, equity, or business and assuming all of that party’s obligations and liabilities hereunder. Any notice pursuant the Agreement shall be deemed effective when delivered in person or one day after sending such notice by reputable overnight courier with confirmation of next-day receipt, in each case to the receiving party’s address listed in the Order Form or to such updated address as such party may notify the other party. Copies of any notice to Tread must be sent to Tread’s general counsel. If any provision of the Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of the Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives. If any provision of this Agreement or any Order Form is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement or the relevant Order Form is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement or any Order Form, the entire Agreement or the relevant Order Form will be considered null and void. Unless otherwise expressly stated herein, the Agreement and any Order Forms may be modified only by a written instrument executed by an authorized representative of each party, provided that
    1. Tread may on 30 days notice to Customer amend any part of the Terms of Subscription without the consent of the Customer if such amendment is in the opinion of Tread required in order to reflect a change in applicable law or a change in the Services which is not prohibited by this Agreement, and such change does not increase the cost to the Customer of the Services,
    2. Tread may make any other change to the Terms of Subscription upon 60 days notice to the Customer provided that the Customer shall thereupon have the right to terminate this Agreement on notice to Tread given within 30 days of its receipt of such notice, and 
    3. Tread may on notice to Customer amend any operating policies, rules or guidelines relating to the Services that it may establish from time to time, including its Privacy Policy and Acceptable Use Policy and any such amendment shall become a binding part of the Agreement upon such notice to Customer or if an effective date is specified by Tread, upon that effective date.