These Trial Agreement (this “Agreement”) describe the terms and conditions on which Smarsh, Inc. (“Smarsh”) provides trial account services to a customer, as defined in an applicable Service Subscription Form (the “Client”). The Effective Date of the Agreement shall be the date upon which Client first executes a Service Subscription Form for Smarsh Services. By executing the Service Subscription Form, Client agrees to be bound by the following terms and conditions:

1. Smarsh Services.

(a) Smarsh agrees to provide Client access to and use of the services specified in the Smarsh Service Subscription Form (collectively, the “Smarsh Services”) for the limited trial term specified therein.

(b) As a part of the Smarsh Services, Smarsh provides standard support and maintenance. Standard support and maintenance is provided 24x7x365. Clients may contact Support via email at support@smarsh.com. Telephone support is also available Monday through Friday between the hours of 7 am and 12 am EST (excluding United States Federal Holidays) at 1-866-SMARSH-1.

2. Certain Client Obligations.

(a) Client shall designate and maintain an administrative user (“Authorized User”) who is responsible for managing all aspects of the Smarsh Services including, without limitation, requesting changes or modifications to the Smarsh Services, adding or deleting users or adding or deleting Authorized Users. Smarsh is only responsible for accepting such requests from Authorized Users or an officer of the Client, and may at its sole discretion refuse to comply with any request if the identity of the Authorized User or an officer of the Client making any such request cannot be reasonably verified.

(b) Client shall not copy, modify, adapt, transmit, sell, distribute or otherwise use the Smarsh Services, in whole or in part, except as expressly permitted in the Agreement or as approved in advance in writing by Smarsh. Smarsh reserves all rights and licenses in and to the Smarsh Services not expressly granted to Client hereunder.

(c) Client shall permit the Smarsh Services to be used solely by its employees or contractors in the performance of their duties to Client and as otherwise contemplated by this Agreement. Client shall not use or permit anyone to use the Smarsh Services for any unlawful or unauthorized purpose.

(d) Client understands and acknowledges that the Smarsh Services are server-based systems engineered to capture and archive data and/or incoming, internal, outgoing electronic communications of Client on a domain-wide basis. Accordingly, Client expressly agrees that it is the sole responsibility of Client to ensure that all data and/or electronic records required to be archived are properly transmitted to Smarsh. Client understands and acknowledges that Client is responsible to monitor the delivery of data and/or electronic communications to Smarsh and should notify Smarsh of any delivery failures or outages of its systems.

(e) Client acknowledges and agrees that the Smarsh Services provided to Client under this Agreement are also subject to the following policies of Smarsh: (i) Client shall abide by all applicable local state, national and foreign laws, treaties and regulations in connection with Client’s use of the Smarsh Services, including those related to data privacy, international communications and the transmission and storage of technical or personal data; (ii) Client shall notify Smarsh immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) Client is fully responsible for the actions of each of its employees, contractors, sublicensees and agents, whether or not such person is or was acting within the scope of their employment, engagement, sublicense or agency relationship; (iv) all data that Client sends or ships to Smarsh shall be in an encrypted format.

(f) Client shall indemnify, defend and hold harmless Smarsh, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees), arising from Client’s breach of any of its obligations in this Section 2.

3. Ownership, Intellectual Property Rights.

All server hardware, including all installed software and applications needed to operate the Smarsh Services are the sole property of Smarsh. Except as expressly stated herein, nothing in this Agreement shall serve to transfer to Client, any Intellectual Property Rights in or to the Smarsh Services, Smarsh Trademarks or other intellectual property. The Client acknowledges and agrees that Smarsh shall have and retain sole right, title and interest in and to the Smarsh Services and all associated know-how, technology, or other intellectual property.

4. Confidentiality.

(a) Confidential Information. “Confidential Information” means (i) business or technical information of either party, including but not limited to information relating to either party’s product plans, Clients, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how; and (ii) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; and (iii) the terms and conditions of this Agreement.

(b) Confidentiality Obligations. Each party agrees: (i) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; and (ii) that it will take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

(c) Exclusions. “Confidential Information” will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independently without reference to the Confidential Information. Either party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the disclosing party, if feasible and legally permitted to do so, gives reasonable notice to the other party to contest such order or requirement; and (ii) on a confidential basis to third-parties pursuant to security testing and audits, such as SSAE 16 SOC 1 and comparable certifications.

(d) Client Data. “Client Data” shall mean all data and information of Client which is submitted to Smarsh via the Smarsh Services. All Client Data is, or shall be, and shall remain the property of Client and shall be deemed Client Confidential Information. Client Data shall not be used by Smarsh other than in connection with providing the Smarsh Services and the performance of Smarsh’s obligations under this Agreement.

(e)Client Access. During the Term of this Agreement and so long as Client is not in breach of any of its obligations hereunder, Smarsh shall provide Client with access to all Client Data in its possession or under its control.

(f) Remedies. Recipient acknowledges and agrees that a breach of any of the obligations of Section 4 will result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by recipient.

5. Term and Termination.

(a) Term. The Agreement shall commence of the Effective Date and shall remain in effect for a trial term of thirty (30) days (“Term”) from the execution of the Service Subscription Form, unless a different trial period is stated within the Service Subscription Form.

(b) Termination for Breach. Either party may terminate the Smarsh Services if the other party breaches any of its obligations hereunder and such breach remains uncured for five (5) business days following the written notice of the breach to the breaching party.

(c) Effect of Termination. Upon any termination or expiration the Agreement, each party shall return to the other or destroy, at the other party’s instruction, all applicable Confidential Information of the other party, provided however, if Client wishes Smarsh to return its Client Data, Client agrees to pay Smarsh its customary fees for this service.

6. Disclaimers.

(a) THE SMARSH SERVICES ARE PROVIDED “AS IS.” SMARSH MAKES NO WARRANTY OF ANY KIND IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO SMARSH SERVICES AND ANY OTHER INFORMATION, SERVICES OR MATERIALS PROVIDED OR MADE AVAILABLE BY SMARSH HEREUNDER, AND SMARSH HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT SMARSH DOES NOT WARRANT THAT THE SMARSH SERVICES WILL BE AVAILABLE OR ERROR-FREE.

7. Limitation of Liability.

(a) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF OR IN CONNECTION WITH THE SMARSH SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR THE APPLICABLE PARTY OR ITS TECHNOLOGY PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

(b) SMARSH’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES AND INDEMNITY ARISING UNDER OR RELATING TO THE PROVISION OF SMARSH SERVICES, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500). THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED.

(c) THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY SMARSH RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF.

8. General Provisions.

(a) Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without the other’s consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and of no effect. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.

(b) Force Majeure. No failure or omission by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder, if the same shall arise from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following, which, for the purpose of this Agreement, shall be regarded as beyond the control of the parties in question: (i) acts of God; (ii) acts or omissions of any governmental entity; (iii) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (iv) fire, storm, flood, earthquake, accident, war, rebellion, insurrection, riot, strikes and lockouts; or (v) utility or telecommunication failures.

(c) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Multnomah County, State of Oregon, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

(d) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, postage prepaid and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile or e-mail. Notices will be sent to Client at the address set forth on the Subscription Form or such other address as Client may specify in writing pursuant to this section. Notices will be sent to Smarsh at the following address: Smarsh, Inc., Attention: General Counsel, 921 SW Washington Street, Suite 540, Portland, OR 97205, Email: support@smarsh.com, Fax: 971-998-9967.

(e) No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.

(f) Attorneys’ Fees. In the event of any litigation or other legal proceedings between the parties, the prevailing party shall be entitled to reasonable attorneys’ fees and all costs of proceedings incurred in enforcing this Agreement.

(g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, negotiations and communications (both written and oral) regarding such subject matter.

(i) Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

(j) Waiver. Failure of either party to insist on strict performance of any of the terms and conditions herein shall not be deemed a waiver of any rights or remedies that either party shall have and shall not be deemed a waiver of any subsequent default of the terms and conditions thereof.

Smarsh
851 SW 6th Avenue
Portland, Oregon 97204
1–866-SMARSH-1
legal@smarsh.com