User Agreement

By clicking a box indicating acceptance of, or executing a statement of work (an "SOW") or an order document (an "Order") that incorporates, this User Agreement (the "Agreement"), the individual or legal entity ("Customer", "You", "Your") agrees that the terms and conditions of this Agreement govern Customer's access to and use of the proprietary the Momentum software-as-a-service platform (the "Services") provided by Cadence OneFive Inc. ("Cadence OneFive", "We", "Us" or "Our"). This Agreement shall be effective between Cadence OneFive and Customer as of the date of such acceptance or Order execution by Customer (the "Effective Date").

Any individual agreeing to be bound by this Agreement on behalf of a legal entity represents that such individual has the authority to bind such entity to this Agreement.

1. Scope of Access to Services.

1. 1.1 Right to Access and Use the Services. Subject to the terms and conditions of this Agreement and your compliance therewith, and in consideration of timely payment the fees specified in an applicable Order or SOW, Cadence OneFive grants Customer a worldwide, non-exclusive, non-transferable revocable right to access and use the Services during the applicable Term for Customer's own internal business purposes. Customer may authorize its employees (each a "User") to access and use the Services on Customer's behalf. We reserve the right at any time, with or without notice, to modify the Services (but in so doing We will not diminish the essential functionality of the Services as a whole).

2. 1.2 Access Credentials and Environment. You are responsible for maintaining the security of any user passwords issued to You or any Users for use with the Services. Access credentials issued to a specific User may not be used by other Users. You are also responsible for the integrity and security of the operating environment from which You access the Services.

3. 1.2 Restrictions. Your access to and use of the Services during any Term is subject to the applicable restrictions in an Order or SOW. You may not sell, resell, license, sublicense, distribute, or frame the Services to a third party. You shall access and use the Services in compliance with this Agreement, any applicable documentation provided by Us, and applicable laws and regulations, and shall promptly notify Cadence OneFive of any known unauthorized access or use. You agree to notify Your Users of the use restrictions contained in this Agreement and to ensure their compliance with these restrictions. You are responsible for Users' access to and use of the Services. You agree not to modify, adapt, or translate the Services, or reverse engineer, de-compile, disassemble, or otherwise attempt to discern the source code of the Services. You may not reproduce all or any portion of the Services (except as expressly permitted in this Agreement) or the documentation. Additionally, You agree not to access the Services for the purpose of building a product or service that is competitive with the Services and any such use of the Services is expressly prohibited.

2. Review and Audit Rights.

1. 2.1 If the fees for the Services is based on or measured by numbers of Users or on basis that is tied to usage volume, transactions or transaction levels, You agree that Cadence OneFive has the right, at its expense (except as noted below), to designate a third-party service to review and audit on Cadence OneFive's behalf Your related books and records to verify compliance with such payment obligations. Cadence OneFive agrees that if it exercises its review and audit rights that it will provide You at least ten (10) days written notice of such exercise and it will use reasonable efforts to conduct such review and audit in a manner that minimizes disruptions to Your normal business activities and that, absent a then-existing breach by You of Your applicable payment or other Agreement obligations, Cadence OneFive will not exercise its review and audit rights more frequently than once per calendar year.

2. 2.2 If the results of the review and audit demonstrate a shortfall in payment by You, You agree that You will, within twenty (20) days after Cadence OneFive's demand for such shortfall amount, pay such amount to Cadence OneFive. In addition, if the results of the review and audit demonstrate a shortfall of more than five percent (5%) in the amounts that should properly have been to Cadence OneFive, then You agree that You shall be responsible for the reasonable documented out-of-pocket expenses incurred by Cadence OneFive in connection with such review and audit. Cadence OneFive agrees to treat as confidential all non-public information first obtained by Cadence OneFive as a result of any such review and audit and to use such information only in connection with enforcing its payment rights concerning Your use of the Services and any related services.

3. Intellectual Property Rights.

1. 3.1 As between Us and You, each party exclusively owns and will continue to own its respective confidential information, if any, that is provided to the other party.

2. 3.2 Cadence OneFive exclusively owns and will continue to own the "Momentum" mark, the Services and all intellectual property rights therein and all updates thereto.

3. 3.3 You exclusively own and will continue to own all personal data ("PII") supplied by You in connection with Your use of the Services.

4. Processing of Personal Data and Data Security.

1. 4.1 Personal Data Processing. Cadence OneFive will not process PII on Your behalf under this Agreement, unless such processing is merely incidental to the delivery of the Services.

2. 4.2 Data Security. Cadence OneFive implements technical and organizational measures that are intended to safeguard and protect Your personal information against unauthorized access, accidental loss, improper use and disclosure. However, You should be aware that information transmitted over the internet is not completely secure because of the nature of the internet and that systems and measures used to secure information are not flawless. For these reasons, Cadence OneFive does not warrant the security of PII transmitted to Cadence OneFive or stored by Cadence OneFive, and PII that is transmitted to Cadence OneFive by You electronically is done at Your own risk.

3. 4.3 Aggregated and Anonymized Data. Cadence OneFive reserves the right to anonymize and aggregate data that is processed through the Services, including transactional activity, and, so long as such data cannot reasonably be associated with You or any individual User or any other individual, to use such aggregated and/or anonymized data to improve the Services, to analyze and make available trends and transactional data, and for Cadence OneFive’s other legitimate business purposes.

4. 4.4 Publicly Sourced Data. Some of the data is accessible or made available through the Services is data that is obtained and included in the Services from publicly available sources that Cadence OneFive believes to be reliable sources for such data. However, because such data does not originate with Cadence OneFive, such data is provided “AS IS” and We do not warrant the accuracy or completeness of any such publicly sourced data that is accessible or made available through the Services and any use of such data by You is at Your own risk.

5. Fees and Payment.

1. 5.1 Fees. You will pay Services fees specified in an applicable Order or SOW. All orders for Services are non-cancelable and Services fees are non-refundable once paid except as otherwise expressly provided in this Agreement or the applicable Order or SOW. Cadence OneFive may increase the unit price specified in an Order or SOW for any Renewal Term upon written notice to You (including via email), provided that if the number of units purchased by You for such Renewal Term is equal or greater than the number of units up for renewal, then such notice must be provided at least forty-five (45) days prior to the start of the Renewal Term. Unless otherwise provided in a SOW, You will reimburse Cadence OneFive for reasonable, out-of-pocket expenses incurred by Cadence OneFive in the course of providing professional services.

2. 5.2 Payment. Unless otherwise provided in the applicable Order or SOW, (i) Cadence OneFive will charge You for Services fees on an annual basis in advance and professional service fees on a time and materials basis monthly in arrears, and (ii) all amounts due under this Agreement are payable in United States dollars net thirty (30) days from the date of the invoice. You agree to promptly notify Cadence OneFive in writing of any changes to its billing information during the Term. Cadence OneFive reserves the right to correct any billing errors or mistakes that Cadence OneFive identifies in an invoice or after a payment is received. You shall remit payments by only electronic means (including by wire or ACH or, for amounts less than $25,000 USD, by credit card), with a notation to applicable invoice numbers. Cadence OneFive may accept payment in any amount without prejudice to Cadence OneFive's right to recover the balance of the amount due under an Order or SOW or to pursue any other right or remedy. Amounts due to Cadence OneFive from You shall not be withheld or offset against amounts due or alleged to be due to You from Cadence OneFive. Except as prohibited by law, Cadence OneFive may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. If You require a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect, or delay Your obligation to pay any amounts due to Cadence OneFive.

3. 5.3 Taxes. Other than income taxes imposed on Cadence OneFive, You will bear all taxes, duties, VAT, and all other governmental charges (collectively, "Taxes") resulting from this Agreement. If You are exempt from any applicable Taxes, You will provide evidence reasonably satisfactory to Cadence OneFive of Your tax-exempt status and, after receipt of such evidence, Cadence OneFive will not charge You any Taxes from which it is exempt. If it is determined that payments due under this Agreement are subject to withholding Taxes, You shall notify Cadence OneFive prior to deducting any such Taxes. You shall: (a) only withhold amounts required under law; (b) make timely payment to the proper taxing authority of such withheld amount; and (c) provide Cadence OneFive with proof of such payment within thirty (30) days following that payment.

4. 5.4 Affiliates. Companies that are affiliated with You by common control (each an "Affiliate") may purchase Services under this Agreement by executing an Order or SOW. Each Order or SOW shall be a separate contract between Cadence OneFive and the applicable Affiliate that executes it, and such Affiliate will be deemed to be the Customer (and references to You and Your shall mean such Affiliate) as used in this Agreement and with respect to such Order or SOW.

6. Disclaimer.

1. 6.1 Except as expressly provided herein, You acknowledge and agree that the Services are provided on an "As Is", as available basis. Other than as expressly provided herein, CADENCE ONEFIVE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. CADENCE ONEFIVE DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, CADENCE ONEFIVE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED.

7. Indemnification.

1. 7.1 Cadence OneFive will defend, indemnify and hold harmless You and Your officers, directors and personnel from any losses, liabilities, damages, demands, causes of action, judgments, costs or expenses (including court costs and reasonable legal fees) arising from third party claims due to (i) Cadence OneFive's violation of law, and (ii) that the authorized use of the Services infringes the intellectual property rights of a third party.

2. 7.2 If Your use of the Services is or is likely to be, enjoined due to an infringement claim, Cadence OneFive may, at its expense, promptly take at least one of the following actions: (i) procure for You the right to continue using the infringing Services under the terms of this Agreement; (ii) replace or modify the infringing Services so that they are non-infringing and substantially equivalent in function and performance to the enjoined Services; or (iii) if options (i) and (ii) above cannot be accomplished despite Our reasonable efforts, Cadence OneFive will terminate Your rights and payment obligations hereunder with respect to such Services.

3. 7.3 You will (i) notify Cadence OneFive in a timely manner after You become aware of any indemnifiable claim, (ii) grant Cadence OneFive control of the defense and settlement of the claim and (iii) provide Cadence OneFive with reasonable assistance, information and authority required for Cadence OneFive to meet its obligations hereunder. Cadence OneFive will engage only reputable and sufficiently skilled legal counsel in the defense of claims and may not enter into any settlement without Your express written consent, unless such settlement (i) releases You in full for all claims, (ii) does not impose any obligation on You, other than ceasing use of the infringing Service and (iii) includes no admission of any kind by or on Your behalf.

8. Limitations of Liability.

1. 8.1 IN NO EVENT SHALL CADENCE ONEFIVE'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED TEN THOUSAND DOLLARS ($10,000). IN NO EVENT SHALL CADENCE ONEFIVE HAVE ANY LIABILITY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Term and Termination.

1. 9.1 Your initial subscription term for the Services commences on the Effective Date. If not earlier terminated as allowed herein, the Services subscription will continue for (i) the initial subscription term specified in the applicable Order or SOW (the "Initial Term"), and (ii) at the end of the Initial Term and on each subsequent anniversary thereof, the Services subscription shall renew for additional periods of one (1) year each (each a "Renewal Term" and together with the Initial Term, collectively the "Term").

2. 9.2 This Agreement and the Services subscription may be terminated by the non-breaching party if the other party fails to cure a material breach hereunder within 30 days after receiving written notice of the breach from the non-breaching party. In addition, Cadence OneFive reserves the right, with or without notice, to suspend Your (and any Users') use of the Services, in whole or in part, if We determine that Your use or any of your Users' use of the Services will in any way adversely affect the operation or security of the Services.

3. 9.3 Upon any termination hereunder, Your (and all Users') rights to access and use the Services shall automatically terminate and all subscription fees and other costs and expense payable hereunder by either party to the other shall be immediately due and payable.

10. Governing Law.

1. 10.1 This Agreement shall be governed exclusively by the laws of New York. All claims and proceedings arising under this Agreement shall be brought exclusively in the County of New York, NY and the parties hereby consent to the personal jurisdiction therein.

11. Miscellaneous.

1. 11.1 Notwithstanding anything to the contrary (i) this Agreement, all SOWs and all Orders entered into hereunder, if any, constitute the entire agreement and understanding between the parties with respect to the subject matter hereof; and no other terms provided unilaterally by either party (except as allowed herein) will be enforceable or serve to limit a party's rights, obligations or liability hereunder.

2. 11.3 Notices required hereunder may be provided as follows: (i) notices concerning operational matters not involving any dispute or indemnity matter between the parties, may be sent by email, which if to Cadence OneFive shall be to [email protected] and which if to Customer shall be to the email address on record with Cadence OneFive (or to such other email address as either party may, from time to time, communicate to the other in writing hereunder from time to time), or by any of the means under clause (ii) below; and (ii) notices concerning a dispute or indemnity matter between the parties shall be made by personal delivery, by certified or registered mail, or by overnight delivery service, in each case with confirmation of receipt.