AskNicely Terms of Use

The AskNicely Terms of Use are entered into by and between AskNicely and theentity agreeing to these Terms or any Order Form or Statement of Work or onlinepurchasing portal governed by these Terms (“Customer”). The Terms govern theCustomer subscription and use of AskNicely Services and any Order Form orStatement of Work or online purchasing agreement that references the Terms. IfCustomer registers for any component of free Services or such is included in anyOrder Form or Statement or Work or online purchasing portal, the applicableprovision(s) of the Terms will also govern those free Services. By (1) Executing anOrder Form or Statement of Work that references the Terms, or (2) Using freeServices, or (3) Logging into the AskNicely technology platform after clicking a boxindicating acceptance, Customer agrees to and accepts the terms and conditions ofthe Agreement.

These Terms are effective between Customer and AskNicely as of the date ofCustomer’s acceptance of the Terms. Capitalized terms have the definitions setforth herein.‍

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1. Subscription Services‍

Unless otherwise provided in an applicable Order Form or Statement of Work,AskNicely Services are offered by subscription. Customer agrees to pay AskNicelyany fees for Purchased Services. Customer is responsible for all applicable sales,use, and value-added taxes (other than taxes based on AskNicely’s income). Unlessotherwise agreed to by the parties in writing, by accessing AskNicely Services,Customer authorizes AskNicely to charge the credit card or other form of paymentheld on file for any fees owed by Customer in connection with Customer’s accessand use of the Purchased Services. Customer waives any right to receive anyadditional notice of such pre-authorized charges. In the case of any transaction thatis rejected for non-sufficient funds or otherwise fails for any reason, Customeragrees that AskNicely may at its discretion attempt to process the charge again byany method authorized. Customer agrees to update Customers information withAskNicely in the event of any change, including any change to Customers creditcard information.

2. Accessing AskNicely Services

2.1 Customer may access and use the Services in accordance with and subjectto the terms and conditions of the Agreement. Subject to the terms and conditionsof the Agreement, AskNicely hereby grants to Customer and Customers Users a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right toaccess and use the Services exclusively for Customer’s internal business purposes.

2.2 By accessing AskNicely Services, Customer agrees: (i) not to distribute,transfer, sublicense, or otherwise make available the Services (or any portion of theServices) to third parties other than Customers Users; (ii) not to use the Services inviolation of any applicable law or regulation or AskNicely Acceptable Use Policy, found here Acceptable Use Policy, or any agreement; (iii) not to infringe AskNicely’srights or to access the Services in a manner that inhibits or restricts other users’use of AskNicely; and (iv) that Customer will not reverse engineer, decompile, orotherwise attempt to derive the AskNicely code, techniques, processes, algorithms,know-how, or other information embodied in the Services. To the extent theforegoing is prohibited by applicable law, Customer agrees to request reasonableterms before taking any other action.

2.3 If an individual is accepting the terms and conditions of the Agreement onbehalf of a company or other legal entity, such individual represents that they havethe authority to bind such entity and its Affiliates and Users to the Terms, in whichcase the term “Customer” shall refer to such entity and its Affiliates and Users. If theindividual accepting the terms and conditions of the Agreement does not have suchauthority or does not agree with the terms and conditions herein, such individualmust not accept the Terms and the Services may not be accessed or used by theindividual, or the Users of the Customer or its Affiliates.

2.4 The Services may not be accessed for benchmarking or competitivepurposes. AskNicely’s direct competitors are prohibited from accessing theServices, except with AskNicely’s prior written consent.

3. AskNicely Services

3.1 Customer’s Responsibilities when Accessing AskNicely Services. When usingAskNicely Services, Customer may provide us with Recipient Data. Customeracknowledges that Customer is solely responsible for the accuracy and quality ofany and all Recipient Data. Customer represents and warrants (i) that Customersprovision of Recipient Data to AskNicely complies with all applicable privacy or dataprotection laws and agreements, and Customer will not use AskNicely Services tosolicit any information from children under the age of 16; (ii) that Customer willensure that Customer and AskNicely have the right to collect, use, and shareRecipient Data via the Services; and (iii) that Customer will provide adequate noticeto, and obtain any necessary consents from, Customers customers with respect toany Recipient Data shared with AskNicely. Customer shall indemnify, defend, andhold harmless AskNicely from and against any and all claims or liability of any kindarising out of a breach of the foregoing warranties.

3.2 Free Services. AskNicely may make Free Services available to Customer. Useof Free Services is subject to the terms and conditions in this Agreement. FreeServices are provided to Customer without charge and any usage over these limits requires Customer’s purchase of additional Services. Notwithstanding any otherterms in this Agreement, Customer agrees that AskNicely, in its sole discretion andfor any or no reason, may terminate Customer’s access to the Free Services or anypart thereof. Customer agrees that any termination of Customer’s access to theGree Services may be without prior notice and Customer agrees that Customer issolely responsible for exporting Customer Data from Free Services for whichAskNicely will provide Customer up to five (5) days to retrieve its Customer Data.Customer agrees that AskNicely will not be liable to Customer or to any third partfor such termination.

ALL FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY ANDASKNICELY WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OFANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION ISNOT PERMITTED BY LAW IN WHICH CASE ASKNICELY’S LIABILITY SHALL BELIMITED TO $5,000.00.

4. Term and Termination of The Agreement

4.1 Subscription Term. The Agreement will continue in effect until terminated asset forth herein. Unless otherwise agreed to by the parties in writing, Customerssubscription for AskNicely Services will be for the duration of the Initial SubscriptionTerm and any subsequent Renewal Terms. Unless otherwise stated in an applicableOrder Form, the Initial Subscription Term shall be twelve (12) months from the OrderForm Effective Date. At the end of the Initial Subscription Term or any subsequentSubscription Renewal Term, the Subscription Term shall automatically renew for atwelve (12) month period (“Renewal Subscription Terms”). If Customer does notwish to renew Customer’s subscription, Customer must provide AskNicely writtennotice of Customer’s intent not to renew at least 30 days prior to the end of thecurrent Subscription Term. AskNicely reserves the right, at its sole discretion, toincrease Fees for any Renewal Term by the greater of (i) 3% of the Fees paid for thethen-current license year; or (ii) the increase in the U.S. Consumer Price Index for AllUrban Consumers (or applicable national inflation measure if outside the UnitedStates) over the prior twelve months, but in no event shall the increase exceed 7% ofFee for the then-current license year. In the event AskNicely elects to implementsuch a Fee increase, AskNicely will notify Customer no less than sixty (60) daysprior to the end of the Initial Term or Renewal Term, as applicable. Such notice maybe provided via email, and such notice may be provided in the form of a quote forthe pending Renewal Term showing the pending Fee increase.

4.2 Termination. The Agreement may be terminated (i) by either party if the otherparty materially breaches the Agreement and does not cure the breach within 30days after receiving written notice of the breach from the non-breaching party, (ii) asset forth in Section 8.1, or (iii) by either party if the other party provides proof that itmade a general assignment for the benefit of creditors, suffered or permitted theappointment of a receiver for its business or assets, or availed itself of or becamesubject to any proceeding under the U.S. Bankruptcy Act or any other foreign or domestic statute, law, rule, or regulation relating to insolvency or the protection ofrights of creditors. AskNicely may, in its sole discretion, suspend or terminateCustomer’s access to AskNicely Services if it determines that Customer hasmaterially violated any of these Terms, and any suspension or termination related tothe foregoing will not relieve Customer of Customer’s payment obligations underthe Agreement.

4.3 Effect of Termination. Upon termination of the Agreement, Customer’s rightto access AskNicely Services shall immediately cease. Please note that any dataand content Customer has uploaded into AskNicely Services may be deleted fromAskNicely systems immediately upon termination of the Agreement or cancellationof Customer’s account. AskNicely is not liable for any loss or damage following, oras a result of, the cancellation of Customer’s account, and it is Customer’sresponsibility to ensure that any content or data that Customer requires is backedup or replicated before cancellation.

4.4 Survival. Sections 3.2, 4.4, 5, 6, 7, 8.3, 9, and 10 shall survive the terminationof the Agreement.

5. Intellectual Property

AskNicely (and its licensors or partners, as applicable) retains all ownership rightsin and to the Services, all updates and upgrades to the Services, and all otherderivative works of the Services, including any suggestions, ideas, feedback, orother information Customer may provide to us relating to the Services. AskNicelymay collect and use data derived from Customers use of the Services (“UsageData”) for its own internal business purposes and may only disclose Usage Data inan anonymous, aggregated format that in no way identifies Customer or any of itscustomers.

6. Confidentiality

6.1 Confidential Information will be designated and/or marked as confidentialwhen disclosed, provided that any information that the party receiving suchinformation (the “Receiving Party”) knew or reasonably should have known isconsidered confidential or proprietary by the disclosing party will be consideredConfidential Information of the disclosing party even if not designated or marked assuch.

6.2 The Receiving Party shall not at any time, in any fashion, form, or manner,either directly or indirectly, divulge, disclose, or communicate to any person, firm, orcorporation in any manner whatsoever, any of the Confidential Information of theDisclosing Party without the express, prior written consent of the Disclosing Party.The Receiving Party shall not use, for its benefit or for the benefit of any third party,any of the Confidential Information of the Disclosing Party, except for the limitedpurpose of evaluating a potential business relationship between the Parties or inperforming their respective obligations pursuant to any subsequent written and signed agreement entered into between the Parties. Notwithstanding the provisionsof these Terms, nothing shall prevent AskNicely from using the name of theCustomer in marketing materials, unless such consent is specifically denied.

6.3 The Receiving Party shall preserve the confidentiality of the DisclosingParty’s Confidential Information and treat such Confidential Information with atleast the same degree of care that the Receiving Party uses to protect its ownConfidential Information, but not less than a reasonable standard of care. TheReceiving Party will use the Confidential Information of the disclosing party only toexercise rights and perform obligations under the Agreement. ConfidentialInformation of the Disclosing Party will be disclosed only to those employees andcontractors of the receiving party with a need to know such information. TheReceiving Party shall not be liable to the disclosing party for the release ofConfidential Information if such information (a) was known to the Receiving Partyon or before the effective date of the Agreement without restriction as to use ordisclosure, (b) is released into the public domain through no fault of the ReceivingParty, (c) was independently developed solely by the employees of the ReceivingParty who have not had access to Confidential Information, or (d) is divulgedpursuant to any legal proceeding or otherwise as required by law, provided that, tothe extent legally permissible, the Receiving Party will notify the Disclosing Partypromptly of such required disclosure and reasonably assist the Disclosing Party inefforts to limit such required disclosure.

6.4 Except for trade secrets and personal data, unless extended by mutualwritten consent of both Parties hereto, this Agreement shall expire five (5) yearsfrom the later of: (a) the effective date hereof; (b) upon the termination of theevaluation or pursuit of the purpose set forth herein; or (c) the termination orexpiration of any subsequent written and signed agreement entered into betweenthe Parties; provided, however, that the Receiving Party’s obligations with respect tothe Confidential Information shall survive. Trade secrets and personal datainformation will be subject to the terms of this Agreement indefinitely, subject onlyto the exclusions enumerated herein.

7. Warranty Disclaimer

CUSTOMER ACCEPTS THE SERVICES “AS IS,” WITH NO REPRESENTATION ORWARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUTLIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTYRIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OFDEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

8. AskNicely Indemnification and Limitation of Liability

8.1 Indemnity. AskNicely will defend at its own expense any action againstCustomer or Customers Users brought by a third party to the extent that the action is based upon a claim that the Services infringe or misappropriate any copyright ortrade secret rights, and AskNicely will pay those costs and damages finally awardedagainst Customer in any such action that are specifically attributable to such claim,or those costs and damages agreed to in a monetary settlement of such action. Theforegoing obligations are conditioned on (i) Customer notifying AskNicely promptlyin writing of such action, (ii) Customer giving AskNicely sole control of the defensethereof and any related settlement negotiations, and (iii) Customers cooperationand, at AskNicely’s reasonable request and expense, assistance in such defense. Ifthe Services become, or in AskNicely’s opinion are likely to become, the subject ofan infringement claim, AskNicely may, at its option and expense, either procure forCustomer the right to continue exercising the rights licensed to Customer in theAgreement or replace or modify the Services to render them non-infringing andfunctionally equivalent. If neither of the foregoing options is, in AskNicely’sreasonable opinion, commercially reasonable, AskNicely may terminate theAgreement and will refund to Customer a pro rata portion of any applicable prepaidfees. This Section 8.1 states AskNicely’s entire liability and Customers sole andexclusive remedy for infringement claims and actions.

8.2 Exclusions. AskNicely’s obligations set forth in Section 8.1 shall not apply tothe extent a claim arises out of (i) Customers breach of the Agreement, (ii)unauthorized use of the Services, or (iii) third-party components (including incombination with the Services) not provided by AskNicely.

8.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLETO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OFCONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE,CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TOBUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLEOR NOT AND WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. IN ADDITION, BOTH PARTIES’ AGGREGATE CUMULATIVE LIABILITY INCONNECTION WITH THE AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATEAND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT, OROTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID BY CUSTOMER UNDER THEAGREEMENT DURING THE ONE-YEAR PERIOD PRIOR TO THE DATE THAT SUCHLIABILITY FIRST ARISES. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS,CLAIM, OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF EITHERPARTY’S INTELLECTUAL PROPERTY RIGHTS OR IN CONNECTION WITH A PARTY’SINDEMNIFICATION OBLIGATIONS. Notwithstanding any provision of the Agreementto the contrary, neither party excludes or limits its liability for (i) personal injury ordeath caused by its negligence, (ii) fraud, or (iii) any other liability that may not belawfully excluded or limited.

9. Privacy

AskNicely’s Privacy Policy describes how we handle Customer Data or data Customer provides to us when Customers use AskNicely Services or access the AskNicely website. AskNicely’s Data Processing Addendum (“DPA”) forms part ofthis Agreement or other written or electronic agreement, entered betweenAskNicely, and the entity that is a party to these Terms together with its Affiliates,which have executed the Terms or made online purchases or signed orders(“Customer”), for the provision of certain services defined in the Terms that requiresAskNicely to process certain personal data on behalf of Customer.

10. Dispute Resolution

10.1 A party will not start court proceedings (except proceedings seekinginterlocutory relief) unless and until it has complied with this Section. A partyclaiming that a Dispute has arisen must give the other party Notice of the details ofthe Dispute in accordance with the Notice provisions described herein. The partiesmust continue to perform their respective obligations under the Agreement pendingthe resolution of a Dispute. As the exclusive means of initiating adversarialproceedings to resolve any dispute arising out of or in relation to or in connectionwith this Agreement or its breach, the parties shall endeavor to settle the disputefirst through direct discussions. If the dispute cannot be settled through directdiscussions, and as a condition precedent to initiation of arbitration, the partiesshall endeavor to settle the dispute by mediation under the Mediation Rules of theAAA before recourse to binding arbitration as described herein.

10.2 If the Parties are unable to resolve via non-binding mediation within 10business days, a party may demand that the Dispute be resolved by bindingarbitration administered by and in accordance with the JAMS streamlinedarbitration rules and procedures then in force, by one neutral arbitrator (havingsubstantial experience in resolving complex commercial contract disputes)appointed in accordance with the JAMS streamlined arbitration rules. The bindingarbitration shall be held in the County of Multnomah in the State of Oregon, or atanother location if it can be selected by mutual agreement. The arbitrator will applythe laws of the State of Oregon without regard to its conflict of laws rules.

10.3 Since a breach of this Agreement will likely cause irreparable harm to theother party, the parties agree that in such event, such party shall be entitled to seekinjunctive and other equitable relief in addition to monetary damages and any otherremedies, which may be available. Nothing herein will prevent a party, prior toappointment of an arbitrator under the JAMS streamlined arbitration rules, frommaking application to any court of competent jurisdiction in the County ofMultnomah in the State of Oregon, for any provisional remedy available at law or inequity. Such application for relief shall not constitute a waiver of this agreement toarbitrate. Upon appointment, the arbitrator shall have authority to order provisionalor interim relief, except that any relief ordered by the arbitrator may be immediatelyand specifically enforced by the court(s) otherwise having jurisdiction.

10.4 The parties submit to a court of proper jurisdiction in the County ofMultnomah in the State of Oregon for entering the award. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in this Agreement.The arbitration award may grant a reimbursement of the prevailing party of all itsfees and expenses, including reasonable attorneys' fees. Otherwise, each partymust pay its own costs of complying with this Section. The decision and awardrendered shall be final and binding on both parties. Neither party nor thearbitrator(s) may disclose the existence, content, or results of anyarbitration proceeding hereunder without the prior written consent of both Parties.

11. Definitions

11.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by,or is under common control with the subject entity. “Control,” for the purposes ofthis definition, means direct or indirect ownership or control of more than 50% of thevoting interests of the subject entity.

11.2 “Agreement” means collectively this AskNicely Terms of Use and anyapplicable Order Form or Statement of Work or online purchasing portal.

11.3 “AskNicely” means Ask Nicely Holdings Inc. or its Affiliate identified in theOrder Form or Statement of Work (“AskNicely”), with a place of business at 2175NW Raleigh St., Suite #110, Portland, OR 97210.

11.4 “AskNicely Content” means information already owned by AskNicely orinformation obtained by AskNicely from publicly available sources or its third-partycontent providers and made available to Customer through the Services or pursuantto an Order Form or Statement of Work or online purchasing portal.

11.5 “Confidential Information” means, with respect to a party (the “DisclosingParty”), all technical, commercial, financial, organizational, marketing, legal or otherinformation that pertains to such party’s business, including, without limitation,materials, and all documents and other items that record information, whetherfurnished before or after the effective date of this Agreement, whether or notmarked or otherwise identified as confidential, whether is disclosed or otherwisemade available directly or indirectly, whether furnished in writing, orally, by means ofinspection, on paper, electronically, in machine readable format, by sound or video,or otherwise; property; trade secrets; financial data including pricing and salesinformation; franchisee names, addresses, telephone numbers, email addresses;franchisee training information; manuals used in the Disclosing Party’s business;job information of work performed by the Company’s independently owned andoperated franchises; information concerning software, data, and systems owned orlicensed by the Disclosing Party or utilized by the Disclosing Party in its business;business, sales and marketing methods and procedures of Disclosing Partyincluding way of doing business, business results or prospects, business records,business plans, performance, planning, and product roadmaps and documentation;technical information and proprietary software, including software capabilitiesowned or used by the Disclosing Party; Records, as defined below; electronic claimsand job management capabilities; IP rights including copyrighted information owned by the Disclosing Party and trademarks owned or used by the DisclosingParty; forms owned or used by the Disclosing Party; all books, manuals, records,files, forms, reports, accounts and documents relating in any manner to theDisclosing Party’s business or its franchisees and customers; employee informationincluding personal data; customer information including personal data; end userinformation, including personal data; and including data entered into computersoftware or databases (the “Records”) and all other non-public or proprietaryinformation disclosed hereunder, whether oral or otherwise.

11.6 “Customer Data” means information submitted by or for Customer to theServices, excluding AskNicely Content and third-party data and applications.

11.7 “Dispute” means a dispute, difference, or question arising in connection withthe Agreement, including a question as to whether certain services are in scope ornot.

11.8 “Effective Date” means the date the Terms are effective between Customerand AskNicely, the date of Customer’s acceptance of the Terms.

11.9 “Free Services” means Services that AskNicely makes available to Customerfree of charge. Free Services exclude Services offered as Purchased Services.

11.10 “Order Form” means an ordering document or online order specifyingthe Services to be provided hereunder that is entered into between Customer andAskNicely or any of their Affiliates, including any addenda and supplements thereto.By entering into an Order Form hereunder, an Affiliate agrees to be bound by theTerms as if it were an original party hereto.

11.11 “Purchased Services” means Services that Customer or Customer’sAffiliate purchased under an Order Form or Statement of Work or online purchasingportal which have a fee associated. Purchased Services exclude Services offered asFree Services.

11.12 “Recipient Data” means data about or relating to Customer’s Usersand customers, including their names and any other relevant identifiers, such asaccount numbers.

11.13 “Services” means the subscription to AskNicely technology platform(including online, offline, and mobile components) and all other products andservices that are ordered by Customer under an Order Form or Statement of Work oronline purchasing portal or provided to Customer free of charge.

11.14 “Statement of Work” means a document specifying a work order forcustom services and deliverables with a project timeline to be provided inassociation with an Order Form.

11.15  “Terms” means the AskNicely Terms of Use.

11.16  “Users” means employees, consultants, contractors, agents, and other representatives authorized by Customer to access and/or use the Services on Customer’s behalf for whom Customer has purchased a subscription and to whom Customer (including via AskNicely at Customer’s request) has supplied a useridentification and password for access to Services utilizing authentication.

12. General

Each party will be excused from any delay or failure in performance hereundercaused by reason of any occurrence or contingency beyond its reasonable control,including, but not limited to, acts of God, earthquake, labor disputes and strikes,riots, war, and governmental requirements. The obligations and rights of the partyso excused will be extended on a day-to-day basis for the period of time equal tothat of the underlying cause of the delay. The parties are independent contractorswith respect to each other, and nothing in the Agreement shall be construed ascreating an employer-employee relationship, a partnership, or a joint venturebetween the parties. The Agreement controls the actions of all partyrepresentatives, officers, agents, employees, and associated individuals. The termsof the Agreement shall be binding on the parties and all successors to theforegoing. Except as otherwise set forth herein, neither party will assign, transfer, ordelegate its rights or obligations under the Agreement (in whole or in part) withoutthe other party’s prior written consent, except pursuant to a transfer of all orsubstantially all of such party’s business and assets, whether by merger, sale ofassets, sale of stock, or otherwise. Any attempted assignment, transfer, ordelegation in violation of the foregoing shall be null and void. All modifications to orwaivers of any terms of the Agreement must be in a writing that is signed by theparties hereto and expressly references the Agreement. If any provision of theAgreement conflicts with governing law or if any provision is held to be null, void, orotherwise ineffective or invalid by a court of competent jurisdiction, such provisionshall be deemed to be restated to reflect as nearly as possible the originalintentions of the parties in accordance with applicable law. No waiver of any breachof any provision of the Agreement shall constitute a waiver of any prior, concurrent,or subsequent breach of the same or any other provisions hereof, and no waivershall be effective unless made in writing and signed by an authorized representativeof the waiving party. The Agreement includes any documents agreed to by theparties in writing and all other documents expressly referenced herein. Collectively,the foregoing constitutes the entire agreement between the parties with respect tothe subject matter hereof and supersedes all prior and contemporaneousagreements or communications, including, without limitation, any quotations orproposals or other documents submitted by the parties. The terms on any purchaseorder or similar document submitted by Customer to AskNicely will have no effectand are hereby rejected. All notices, consents, and approvals under the Agreementmust be delivered in writing by courier or by certified or registered mail (postageprepaid and return receipt requested) to the other party at the address set forth inthe Agreement or as otherwise designated by the parties from time to time, and, ifsent to AskNicely, will be sent to its Vice President of Finance.