Master Services Agreement

Updated: March 1, 2013

PLEASE READ CAREFULLY - THIS IS A BINDING CONTRACT

This Master Services Agreement (this "Agreement"), dated as of the Effective Date set forth on the cover sheet hereto is made between Tier 3, Inc., whose primary business address is 110 110th Ave. NE, Suite 520, Bellevue, WA 98004 ("Tier 3") and the Customer set forth on the cover sheet hereto. In consideration of the mutual promises contained in this Agreement, Tier 3 and Customer hereby agree as follows:

1. The Services. The services covered by this Agreement include all services provided by Tier 3 to Customer from time to time (collectively, "Services"), except for those services covered under a separate customer agreement. With respect to the Support Services described in Exhibit B, in the event of any conflict between the terms of the main body of this Agreement and the more specific terms of Exhibit B, the terms of Exhibit B shall control. Tier 3 Services include, but are not limited to, those services listed on www.tier3.com and/or http://control.tier3.com (the "Website"). After execution by the parties, the Services subscribed to in the Client Management section of the Website (the "Control Panel") shall be incorporated into and form part of this Agreement, and the terms and conditions of this Agreement will apply to each Service. In connection with initiation of Services, Customer will also be asked to review and accept standard terms of acceptable use of the Website and Tier 3's standard Privacy Policy. In the event of any conflict between the terms of this Agreement and the terms of either of the other mentioned agreements, the terms of this Agreement shall control.

2. Tier 3 SLA. THIS AGREEMENT INCORPORATES BY REFERENCE (1) THE SALES ORDER AGREEMENT AND (2) THE SERVICE LEVEL AGREEMENT ("SLA") SET FORTH AS EXHIBIT A.

   Customer agrees that Tier 3 may modify this Agreement at any time upon execution of a writing signed by both parties. Notwithstanding the foregoing, Customer acknowledges that the foregoing shall not be understood to prevent Tier 3 from making modifications to the particular composition of its Services offering (including its Support Services and SLA) from time to time upon notice to all customers so long as (a) they are changes that affect Tier 3's customer base collectively and not Customer alone, and (b) the overall level of features, functionality and support are not reduced thereby.

3. Term and Termination. The term of this Agreement will commence on the Effective Date and will remain in effect for the Initial Term set forth on the coversheet hereto. Following the Initial Term, the term of this Agreement shall renew for successive one (1) year terms, unless terminated by either Party upon ninety (90) days notice prior to end of the then-current term.

   Customer may terminate this Agreement by following the instructions for cancelling any individual Service or set of Services on the Control Panel without liability (except for amounts due for Services through the effective date of termination) in the following situations: (i) there are three (3) or more separate events creating a right to a credit under the Service Level Agreement during any rolling thirty (30) day period and Customer gives written notice of termination no later than forty-five (45) days following the occurrence of the third event; (ii) Tier 3 fails in a material way to provide the managed hosting Services in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail, or (iii) Tier 3 materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer's written notice describing the violation in reasonable detail.

   Tier 3 may suspend Customer's right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, Customer's right to use all Services) for cause effective (i) fifteen (15) days following notice to Customer for a material breach of Section 6, below (the foregoing waiting period shall be twenty-four (24) hours following notice to Customer in the event of a willful breach of Section 6(i), (ii), (iii) or (iv)); (ii) thirty (30) days following Tier 3's notice to Customer if Customer is in default of any payment obligation with respect to any of the Services (where such payment is not subject to a bona fide dispute) or if any payment mechanism Customer has provided to Tier 3 is invalid or charges are refused for such payment mechanisms, and Customer fails to cure such payment obligation default or correct such payment mechanism problem within such 30-day period; or (iii) thirty (30) days following Tier 3's provision of notice to Customer if Customer breaches any other material provision of this Agreement and, in the absence of a good faith dispute lodged by Customer over whether there has been a breach of a material provision, fails to cure such breach within such thirty (30)-day period.

4. Effect of Termination. Upon termination of this Agreement for any reason: (i) Customer remains liable for all fees, charges and any other obligations Customer has incurred through the date of termination with respect to the Services; and (ii) except as set forth in the paragraph below, all of Customer's rights under this Agreement shall immediately terminate. The second paragraph of Section 6, the last sentence of Section 8, Section 10, and Sections 12 through 17 shall survive any termination or expiration of this Agreement.

   Upon termination or expiration of this Agreement, in order to facilitate a smooth and timely transition from the Services and in order to mitigate any delay, adverse impact and unnecessary cost to Customer, Tier 3 will, for a period of up to ninety (90) days (the "Transition Period"), provide to Customer all assistance reasonably required, in Tier 3's discretion, including without limitation transferring Customer Data, Confidential Information and related data and materials to either Customer or its third party designee at Customer's expense. Tier 3 shall continue to provide to Customer the Services during any Transition Period so long as Customer pays a reasonable fee for Tier 3's transition services and continues to pay applicable recurring monthly fees for such Services notwithstanding any termination or expiration of this Agreement.

5. Data Preservation. In the event of a suspension by Tier 3 of Customer's access to Services for any reason, during the period of suspension (i) Tier 3 will not take any action to intentionally erase any Customer data or Customer software (collectively, "Data") stored on the Services, and (ii) applicable Service Data storage charges, if any, will continue to accrue.

   In the event of any termination by Tier 3 of any Service or any set of Services, or termination of this Agreement in its entirety, (i) Tier 3 will not take any action to intentionally erase any of the Data stored on the Services for a period of ninety (90) days after the effective date of termination; and (ii) Customer's post-termination retrieval of Data stored on the Services will be conditioned on Customer's payment of reasonable Service Data storage charges for the period following termination, payment in full of any other amounts due Tier 3, and Customer's compliance with terms and conditions Tier 3 may reasonably establish with respect to such Data retrieval.

   Except as provided above, Tier 3 shall have no obligation to continue to store Data during any period of suspension or termination or to permit Customer to retrieve same. For the avoidance of doubt, for security and privacy reasons, Tier 3 may destroy all Customer Data after ninety (90) days following the effective date of termination, unless otherwise required by law.

6. Authorization and License to Use the Services. Subject to Customer's compliance with this Agreement and with the payment requirements for the Services that are set forth on the Control Panel (as such payment terms may be updated from time to time), Tier 3 hereby grants Customer (including Customer's employees, agents and contractors for whose compliance Customer agrees to be responsible) a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under Tier 3's intellectual property rights, to access and use the Services.

   Customer will not nor will Customer allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Services; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Services, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Services; (iv) knowingly use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (v) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of Tier 3; (vi) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Tier 3; or (vii) remove, obscure, or alter any notice or label of copyright, trademark, or other proprietary right appearing in or on any item included with the Services. Customer will use the Services solely for Customer's own internal use in compliance with all applicable laws and regulations, and will not make the Services available for timesharing, application service provider or service bureau use.

7. Service Levels. Tier 3's SLA constitutes Customer's sole and exclusive remedy for Tier 3's provision of or failure to provide Services to Customer, except that Tier 3 shall have no obligation to compensate Customer under any SLA while Customer is in default or not current in its payment obligations under this Agreement unless such default is due to a bona fide dispute. Service credits, if any, as provided in the SLA will be issued to Customer's account and shall be used to offset future billable services. Service credits shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. Service credits shall expire if Customer's account is terminated.

8. Security. Tier 3 is responsible to ensure that its security practices are consistent with generally accepted industry standards in connection with the collection, storage, disclosure, use of and access to Customer's Data. Without limiting the generality of the foregoing, Tier 3 will (i) utilize and maintain adequate security measures to ensure the security and confidentiality of such Customer Data, including physical, technological and administrative measures, (ii) promptly forward to Customer any third party request for access to Confidential Information and cooperate with Customer in responding to such access request, (iii) promptly notify Customer of any breach, or alleged or suspected breach, of security, (iv) take commercially reasonable measures to correct any alleged breaches of Tier 3's confidential treatment and protection of Confidential Information obligations in this Agreement, and (v) comply with all laws applicable to the performance of the duties set forth in this Section 8. Only in the event that an annual SAS70 Type II audit report reflects an inadequacy or deficiency, upon reasonable advance notice but in no event with less than seven (7) calendar days prior notice, Customer may, during the term of this Agreement, conduct an audit, during business hours and upon reasonable advance notice, of Tier 3 internal systems and procedures for the retention of Customer Data. Any such audit shall be subject to Tier 3's security rules and the confidentiality of other customers and shall be allowed no more than once per annum for the year following the SAS70 Type II audit report as inadequate or deficient. Tier 3 shall cooperate with Customer's audit. Notwithstanding all of the foregoing, Customer acknowledges that, in spite of commercially reasonable and industry-standard data security measures, Tier 3 is unable to guarantee absolute data security and that Tier 3 has no liability to Customer for any unauthorized access or use, corruption, deletion, destruction or loss of any of Customer's Data except to the extent of Tier 3's gross negligence or willful misconduct.

9. Fees and Payment. In consideration of Customer's use of any of the Services, Customer agrees to pay applicable fees for Services in the amounts set forth on the Control Panel. Fees for any new Service or new Service feature will be effective upon posting by Tier 3 on the Control Panel for the applicable Service. If Tier 3 proposes to increase fees for any existing Service Tier 3 shall provide notice of such increase not less than sixty (60) days prior to the end of the then-current term, which increase shall not become effective until the next successive term. If Tier 3 proposes to add new Services, Tier 3 shall notify Customer of such new Services via the Control Panel and allow Customer to add such Services under this Agreement subject to payment of the fees associated with such Services. Customer shall pay all duties and taxes charged in connection with all transactions and Services under the Agreement, including penalties and interest, but specifically excluding taxes based on Tier 3's assets or net income. When Tier 3 has the legal obligation to pay or collect taxes, the appropriate amount shall be charged to and paid by Customer unless Customer provides Tier 3 with a valid tax exemption certificate authorized by the appropriate taxing authority.

   Fees for the Services shall be due and payable on the date that Customer places its order for such Services via the Control Panel. Payment obligations are non-cancelable and fees paid are non-refundable. Tier 3 shall be entitled to claim interest on any overdue amount (where not disputed in good faith) at the rate of 1.0% per month. If Customer disputes any invoice, Customer shall timely pay the undisputed portion and promptly notify Tier 3 in writing of the nature of the dispute as to the remainder, and the parties will use their best efforts to resolve the dispute expeditiously. In the event the dispute is not resolved within thirty (30) days after receipt by Tier 3 of the notice of such dispute, Tier 3 may, subject to the data preservation provision of Section 5 above, suspend performance of the Services, without limitation or waiver of any other right or remedy available under this Agreement or at law. Tier 3 may specify the manner in which Customer will pay any fees, and any such payment shall be subject to Tier 3's general accounts receivables policies from time to time in effect. Except as set forth in Section 7, all amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without deduction or withholding.

   In the event Customer seeks to resolve a billing error, Customer is instructed to open a ticket via the Control Panel or email billing@tier3.com. Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of US $150 and will be subject to collection by an authorized collection agency. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys' fees, court costs and collection agency fees) incurred by Tier 3 in enforcing collection.

10. Proprietary Rights. The Services, including all intellectual property rights in the Services, are and shall remain, the property of Tier 3. All rights in and to the Services not expressly granted to Customer in this Agreement are hereby expressly reserved and retained by Tier 3 and its licensors without restriction.

    As between Tier 3 and Customer, Customer exclusively owns all right, title and interest in and to Customer's Data. Tier 3 will not disclose Customer's Data, except (i) if Customer expressly authorizes Tier 3 to do so in connection with Customer's use of the Services; or (ii) as necessary to provide the Services to Customer, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.

    For the purposes of this Agreement, "Confidential Information" means all information designated as confidential or which could reasonably be assumed to be confidential, including without limitation any and all present or future product or service information, technical or financial information, business strategies, practices, procedures, customer names or related data, details of any contracts entered into by the parties, advertising and promotional ideas or material, other business information, technical information (including any object and source code), documents, drawings, models, inventions, copyrightable works, or oral disclosures, and all copies thereof, that may be disclosed by one party ("Discloser") to the other party ("Recipient"), whether such disclosure is in written, oral, electronic, website-based, or other form or contained in any form of media.

    Recipient and its representatives will maintain the secret and confidential nature of the Confidential Information it receives and will restrict the possession, knowledge and use of Confidential Information to its employees and contractors who (i) have a need to know Confidential Information in connection with Tier 3's provision of the Services, (ii) are informed of the confidential nature of the information, and (iii) have executed written nondisclosure agreements obligating them to protect the Confidential Information, and will not disclose such Confidential Information to third parties. Recipient will, at a minimum, use the same degree of care that it uses with respect to its own Confidential Information to prevent its use or disclosure, but in no event will Recipient use less than reasonable care. Recipient may use the Confidential Information it receives only for the furtherance of the purposes of this Agreement and the Services and as expressly permitted by this Agreement. Without limiting the scope of the foregoing, Tier 3 will not modify or access Customer's Data except to provide the Services or prevent or address service or technical problems, or at Customer's request in connection with customer support matters.

    Upon the termination or expiration of this Agreement, if any, Recipient will, at the written request of the Discloser, (i) cease any and all use of the Discloser's Confidential Information and all copies thereof; (ii) remove from its files, records, documents and permanent archiving methods all of the Discloser's Confidential Information and (iii) at the request of the Discloser, destroy or return all Confidential Information and certify such destruction/return to the Discloser in the timeframe reasonably requested.

    Exclusions. Confidential Information does not include the following categories of information: (a) information that at the time of disclosure to Recipient was in the public domain (other than as a result of any breach of this Agreement); (b) information that was lawfully known by Recipient prior to receipt from Discloser (as proven by Recipient's written records); (c) information that, after disclosure to Recipient, becomes known to the general public through no breach of this agreement by Recipient; (d) information developed independently by Recipient without use of or reference to Confidential Information; or (e) information that is disclosed to Recipient by a third party who did not acquire or disclose such information by a wrongful act.

    In the event Customer elects, in connection with any of the Services, to communicate to Tier 3 suggestions for improvements to the Services ("Feedback"), Tier 3 shall own all right, title, and interest in and to the same, even if Customer has designated the Feedback as confidential, and Tier 3 shall be entitled to use the Feedback without restriction. Customer hereby irrevocably assigns all right, title, and interest in and to the Feedback to Tier 3 and agrees to provide Tier 3 such assistance as it may require to document, perfect and maintain Tier 3's rights to the Feedback.

11. Representations of Customer. Customer represents and warrants that Customer will not use the Services: (i) in a manner that infringes, violates or misappropriates any rights of Tier 3 or any third party; (ii) to engage in spamming or other impermissible advertising, marketing, or other activities, including, without limitation, the CAN SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms, or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.

    Customer further represents and warrants that: (i) the information Customer provides in connection with Customer's registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if Customer is registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries where Customer operates and is an authorized representative of Customer's entity, and (b) Customer's employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to this Agreement and all transactions conducted under Customer's account.

12. Warranty; Warranty Disclaimers. Tier 3 warrants that for the entire term of this Agreement, it (a) will perform all Services in accordance with applicable law and consistent with generally accepted industry standards; (b) has sufficient right, title and interest in and to all intellectual property rights and other proprietary rights related to the Services (including any third-party materials embedded, compiled or incorporated therein) to enter into and perform under this Agreement and to grant the rights and licenses in this Agreement; (c) has taken commercially reasonable measures (including the use of a commercial-grade virus checker) to ensure that the Services do not, and will not, contain any harmful program, routine, device or undisclosed feature, including, without limitation, a so-called time bomb, virus, malicious logic, worm, Trojan horse or trap or back door, or other harmful device which is designed to delete, provide unauthorized access to, or otherwise harm, any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; and (d) has provided an SLA as set forth on Exhibit A, as amended solely by mutual agreement of the parties. TIER 3 SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY TIER 3 OR TIER 3'S LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE OFFERINGS”) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THIS SECTION 12, TIER 3 AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND EXCEPT AS SET FORTH IN THIS SECTION 12, TIER 3 AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TIER 3 AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS. TIER 3 AND ITS LICENSORS WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES, UNLESS THE SERVICE INTERRUPTIONS ARE CAUSED BY TIER 3'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OFFERINGS IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO CUSTOMER'S PROPERTY OR LOSS OF DATA.

13. Limitation of Liability. THE CREDITS DESCRIBED IN THE SLA ARE CUSTOMER'S SOLE REMEDIES FOR TIER 3'S FAILURE TO MEET THE GUARANTIES AND WARRANTIES STATED IN THOSE DOCUMENTS, PROVIDED THAT THIS PROVISION DOES NOT LIMIT CUSTOMER'S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 3 (TERM AND TERMINATION) IF SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.

    EXCEPT IN THE CASE OF A MATERIAL BREACH OF SECTION 10 OR 14(C), NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, EACH PARTY'S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY LOSS OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (X) ONE HUNDRED DOLLARS ($100) OR (Y) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TIER 3 HEREUNDER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSATION OF THE DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE PARTIES.

14. Indemnification.

    (a) Each party agrees to indemnify, defend and hold the other party, its affiliates and licensors, and each of their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys' fees) arising out of or in connection with any third party claim to the extent based on such party's or such party's employees' or personnel's gross negligence or willful misconduct.

    (b) Each party agrees to indemnify and hold harmless the other party, the other party's affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party's actual or alleged infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.

    (c) As Customer's exclusive remedy and Tier 3's entire liability for infringement, Tier 3 agrees to indemnify and hold Customer harmless with respect to any suit, claim, or proceeding brought against Customer alleging that Customer's permitted use of the Services under this Agreement constitutes an infringement of any third-party intellectual property right. Tier 3 shall defend Customer against any such suit, claim, or proceeding, and pay all litigation costs and reasonable attorneys' fees incurred in connection with such suit, claim or proceeding, and all settlement payments and damages awarded therein, provided that Tier 3 is notified in writing within thirty (30) days of any such suit, claim or proceeding, Customer tenders the control of any such claim or proceeding to Tier 3, and Customer cooperates with Tier 3 in the defense or settlement of same. Upon notice of alleged infringement or if in Tier 3's opinion such a claim is likely, Tier 3 shall have the right, at its option and expense, either: (i) to procure for Customer the right to continue using the Services; or (ii) to replace or modify the Services so that they provide substantially the same, or greater, functionality and performance than the infringing Services, but are no longer subject to a claim of infringement. If, in Tier 3's opinion, none of the options above are reasonably available, Customer's sole and exclusive remedy shall be to terminate the infringing Services and receive a refund of any prepaid and unused Services fees. Tier 3 shall not have any obligation under this Section to the extent the claim arises from a modification of the Services other than by or on behalf of Tier 3 or from Customer's use of the Services in combination with other non-Tier 3 services, software, equipment or devices, unless Tier 3 has expressly recommended in writing the use of such non-Tier 3 services, software, equipment or devices.

15. No Third Party Beneficiaries. Customer agrees that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to the Agreement.

16. Notice. Except as otherwise provided in this Agreement, each party may provide notices required under this Agreement by email or by mail to the address listed on the cover sheet hereto for the other party.

17. Force Majeure.Tier 3 is not responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, including, but not limited to, acts of God, governmental actions, fires, explosions, labor disputes, war, pandemic, terrorism, riots, inability to obtain energy (each, a "Force Majeure"), provided, that the non-performing party promptly furnishes Notice to the other party and resumes performance as soon as practicable. Either party will take all reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.

18. General. This Agreement constitutes the entire agreement between Customer and Tier 3 regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, agreement, or communication between Tier 3 and Customer, whether written or oral, regarding such subject matter. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the state of Washington without reference to its conflict of law principles. In the event of any conflicts between foreign law and Washington law, Washington law shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in King County, Washington. Notwithstanding anything to the contrary, Tier 3 may seek injunctive relief or other relief in any court of competent jurisdiction for any actual or alleged infringement of Tier 3's or any third party's intellectual property and/or proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. A waiver of any default is not a waiver of any subsequent default. Customer may not assign or otherwise transfer any of Customer's rights hereunder without Tier 3's prior written consent, and any such attempt is void. The relationship between Tier 3 and Customer is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The parties may execute this Agreement in any number of counterparts. Each counterpart will be deemed an original and all counterparts will constitute one agreement binding on both parties. Facsimile or digital signatures will be considered binding for all purposes.