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SWITCHPITCH TERMS AND CONDITIONS

These Terms and Conditions govern, apply to, and are hereby incorporated into the order form (“Order Form”), signed by SwitchPitch, LLC (“SwitchPitch”) and the company listed in the order form (“Company”), regarding Company’s access to and use of the startup engagement platform offered by SwitchPitch, which is designed to connect established companies searching for innovative startup solutions with startup companies (“SwitchPitch Platform”), including the SwitchPitch proprietary software, SDKs, interfaces, and APIs that may be provided to access the SwitchPitch Platform (the “Software” and together with the SwitchPitch Platform, the “Services”), as ordered pursuant to the Order Form.  These Terms and Conditions, together with the Order Form, constitute the binding agreement (“Agreement”) between SwitchPitch and Company, effective as of the date set forth in the Order Form (“Effective Date”).   

  1. Provision of Services.
    1. Account. In order to access and use certain of the features and functions of the SwitchPitch Platform, Company will be required to register an account with SwitchPitch (“Account”).  Throughout the Term, Company agrees to provide true, accurate, current, and complete information with respect to Company’s Account.  Company may permit an unlimited number of individuals who are employees or contractors of Company or its affiliates (each, an “Authorized User”) to access and use the features and functions of the Services as contemplated by this Agreement.  User IDs cannot be shared or used by more than one Authorized User at a time.  Company will immediately notify SwitchPitch of any unauthorized use of its Account or any other breach of security relating to the Services known to Company. In addition to account access, SwitchPitch will provide five (5) hours of analyst support to Company, available at Company’s request. Analyst hours may be used to search startups, perform startup outreach, or any other mutually agreeable tasks. Additional analyst hours may be purchased for an additional fee.
    2. Licenses.  Subject to SwitchPitch’s approval of Company’s Account registration, Company’s payment of the Fees, and Company’s compliance with this Agreement, SwitchPitch hereby grants the following licenses.
      1. SwitchPitch grants Company, during the Term, a non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the SwitchPitch Platform in accordance with any documentation provided by SwitchPitch (“Documentation”), solely for Company’s internal business purposes and in accordance with any limitations set forth in the Order Form.  
      2. To the extent Company has ordered access to the API pursuant to the Order Form, SwitchPitch will provide Company with a unique code assigned to Company (“API Key”), and hereby grants to Company, during the Term, a non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the API in accordance with the Documentation for the sole purpose of interfacing with the Platform, solely for Company’s internal business purposes, and not for timesharing, application service provider, or service bureau use.  Company agrees that its use of the API may be subject to volume and other restrictions as set forth on the Order Form or as otherwise imposed by SwitchPitch from time to time.  If SwitchPitch at any time issues an updated API Key, Company agrees that, after no more than five (5) days, Company will only use the new API Key.  
      3. SwitchPitch shall refund any fees paid by Company to SwitchPitch for the remainder of the term then in effect in the event any licenses Company is utilizing in connection with the Services are revoked. 
    3. Restrictions.  Company agrees that, except for its affiliates, it will not, nor will Company cause or permit any third party to, (a) allow any third party to access the Services, except as expressly allowed under this Agreement; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; or (e) create derivative works based on the Services. 
    4. Modification.  SwitchPitch endeavors to continuously improve the Services and adds new features and functionality and removes older features and functionality from time to time.  As a result, SwitchPitch reserves the right to and will modify the Services from time to time.  SwitchPitch will give Company prior written notice of any material modifications. All such modifications shall be subject to and governed by this Agreement.  SwitchPitch reserves the right to suspend Company’s access to the Services: (a) for scheduled or emergency maintenance, or (b) in the event Company is in breach of this Agreement. 
    5. Reservation of Rights.  Except for the express licenses granted under this Agreement, Company shall have no right, title or interest in or to the Platform or Services.  All rights not expressly granted under this Agreement are reserved to SwitchPitch.
  2. Ownership.
    1. Services.  Except with respect to the licenses granted by SwitchPitch hereunder, SwitchPitch owns all right, title and interest (including, but not limited to, all copyright, patent, trademark, and trade secret rights) in and to the Services and the Documentation.
    2. Open Source Software.  Certain items of software used in the Services are subject to “open source” or “free software” licenses (“Open Source Software”).  Some of the Open Source Software is owned by third parties.  The Open Source Software is not subject to the terms and conditions of this Agreement.  Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.  Nothing in this Agreement limits Company’s rights under, or grants Company rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, SwitchPitch makes such Open Source Software, and SwitchPitch’s modifications to that Open Source Software, available by written request at the notice address specified on the Order Form. 
    3. Company Data.  As between Company and SwitchPitch, Company shall own all information and data uploaded or otherwise transmitted to the Platform by Company (“Company Data”).  Company hereby grants to SwitchPitch a limited, royalty-free license during the Term to reproduce, translate, encode, publish, use the Company Data for the purpose of providing, improving and optimizing the Services, and fulfilling SwitchPitch’s obligations under this Agreement.  SwitchPitch may monitor the Customer Data and Company’s use of the Platform and compile this data with other data in an aggregate and anonymous manner to derive statistical and performance information, including information regarding the Company’s activities potential activities with any start-up business included in the Platform’s database (“Statistical Information”). SwitchPitch may use the Statistical Information to produce reports and improve and customize the Platform for its customer. SwitchPitch may make such Statistical Information available on its Platform, provided that such Statistical Information: (i) is not able to be de-anonymized; (ii) does not include any data that would enable the identification of the Company; or (iii) would not constitute the disclosure of the Company’s Confidential Information. SwitchPitch retains all rights, title and interest in and to such Statistical Information. SwitchPitch is not obligated to back up any Company Data; the Company is solely responsible for creating backup copies of any Company Data at Company’s sole cost and expense.   Company shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Company Data.  
    4. Third Party Data.  Company acknowledges and agrees that SwitchPitch obtains certain data and information for the Services from third parties (“Third Party Data”).  SwitchPitch does not, and has no obligation to, verify the accuracy or completeness of any such Third Party Data.  
  3. Fees.  Company shall pay SwitchPitch the fees set forth in the Order Form (the “Fees”) in accordance with the payment terms set forth therein.  Non-payment or late payment of undisputed fees is a material breach of this Agreement.  Company shall pay interest on any overdue balance at the rate of 1½% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection.  All taxes and other governmental charges (except for income taxes), if any, imposed on Company hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Company.  
  4. Warranties and Disclaimers.
    1. Limited Warranty.  SwitchPitch represents and warrants to Company that the Services will operate free from material defects during the Term and Company’s sole remedy, in the event of a breach of the foregoing warranty, is for SwitchPitch to replace at no cost the defective Services or materials, provided that Company promptly notifies SwitchPitch of such material defect(s).  SwitchPitch further represents and warrants to Company that it will take all reasonable steps and precautions, in accordance with industry standards, to secure Company data from breach and unapproved 3rd party access. SwitchPitch further represents and warrants to Company that use by SwitchPitch and use by Company as intended under this agreement of all third party data will not violate any Intellectual Property Rights of the third parties. 
    2. Disclaimer.  THE LIMITED WARRANTY SET FORTH IN SECTION 4.1 IS MADE FOR THE BENEFIT OF COMPANY AND ITS AFFILIATES ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND SWITCHPITCH MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER  REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  SWITCHPITCH DOES NOT GUARANTEE ANY RESULTS WITH RESPECT TO THE USE OF THE SERVICES, NOR DOES IT WARRANT THAT THE OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; THAT ALL ERRORS CAN BE CORRECTED; OR THAT THE INFORMATION, DATA, OR OTHER CONTENT OBTAINED THROUGH THE SERVICES ARE ACCURATE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO COMPANY.
  5.  Limitation of Liability.  EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR LIABILITY RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER, AND (B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.  SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
  6. Confidentiality.
    1. Confidential Information.  For purposes of this Agreement, “Confidential Information” means any and all information prepared or delivered to the receiving party (“Receiving Party”) by the disclosing party or its representatives (“Disclosing Party”) (including information or data received by the disclosing party from a third party and as to which the disclosing party has confidentiality obligations), that (i) is marked or designated by the disclosing party as “confidential” or “proprietary;” (ii) is disclosed orally or visually provided that such information is identified at the time of such disclosure as proprietary or confidential, and that within thirty (30) days thereafter a written summary of such oral disclosure identifying it as confidential is provided to the receiving party; or (iii) is known to the receiving party, or should be known to a reasonable person given the facts and circumstances of the disclosure, as being confidential information.  Confidential Information does not include information that the Receiving Party can establish:  (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without access to or reference to the Disclosing Party’s Confidential Information; (c) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party.
    2. Use of Confidential Information.  The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.  The Receiving Party will limit access to the Disclosing Party’s Confidential Information to Authorized Users (with respect to Company as Receiving Party) or to those employees or representatives who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information.  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon the expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
  1. Indemnification.
    1. By SwitchPitch.  SwitchPitch shall indemnify, defend and hold harmless Company against any third-party claims arising out of (a) any failure by SwitchPitch to comply with applicable laws, rules and regulations in connection with its activities hereunder and/or (b) that the use of the Services as permitted hereunder infringes any copyright, patent or other intellectual property right of a third party, and SwitchPitch shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) incurred and finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by SwitchPitch – such indemnification shall not be limited by section 5.  If any portion of the Services becomes, or in SwitchPitch’s opinion is likely to become, the subject of a claim of infringement, SwitchPitch may, at SwitchPitch’s option, and as Company’s sole and exclusive remedy therefor: (a) procure for Company the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non-infringing; or (d) terminate this Agreement and refund any fees paid by Company to SwitchPitch for the remainder of the term then in effect, and upon such termination, Company will immediately cease all use of the Documentation and Services.  Notwithstanding the foregoing, SwitchPitch shall have no obligation under this Section 7.1 or otherwise with respect to any third-party claim based upon (i) any use of the Services not in accordance with this Agreement or as specified in the Documentation; or (ii) any use of the Services in combination with other products, equipment, software or data not supplied by SwitchPitch or other products, equipment, software or data not reasonably anticipated or expected to be used.  This Section 7.1 states the sole and exclusive remedy of Company and the entire liability of SwitchPitch, and any of the officers, directors, employees, shareholders, contractors or representatives of SwitchPitch, for claims and actions described in this Section 7.1.
    2. By Company.  Company shall indemnify defend and hold harmless SwitchPitch against any third-party claims arising out of (a) any failure by Company or any Authorized User to comply with applicable laws, rules and regulations in connection with its activities hereunder, including without limitation its provision and SwitchPitch’s authorized use of Company Data hereunder, (b) Company’s unauthorized use of Services hereunder, and/or (c) Company’s breach or alleged breach of any of its covenants, representations or warranties hereunder, and Company shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) incurred and finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Company.  This Section 7.2 states the sole and exclusive remedy of SwitchPitch and the entire liability of Company, and any of the officers, directors, employees, shareholders, contractors or representatives of Company, for the claims and actions described in this Section 7.2.  
    3. Procedure.  The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall (at the indemnifying party’s expense) reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.  
  1. Term And Termination.
    1. Term.  This Agreement commences on the Effective Date and shall continue for the period of time specified in the Order Form (the “Term”) unless earlier terminated under this Section 8.
    2. Termination for Breach by Company.  SwitchPitch may terminate this Agreement immediately upon written notice to Company if Company materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach.  
    3. Termination by Company.  Company may terminate this Agreement with or without cause by providing SwitchPitch prior written notice.  In such event where Company terminates exclusively for its convenience, Company shall compensate SwitchPitch for no more than the value of the Services satisfactorily delivered to Company as of the time of termination.  Company may terminate this Agreement immediately if: (a) SwitchPitch breaches a material obligation under this Agreement or (b) SwitchPitch becomes insolvent, bankrupt, or enters receivership.  Under such circumstances, Company shall be: (c) relieved of its obligation to make further payments to SwitchPitch and (d) entitled to recover damages arising from such breach.
    4. Effect of Termination.  Immediately upon termination of this Agreement, (a) the licenses granted to either party shall immediately terminate; and (b) SwitchPitch shall cease to make available and Company shall cease to use the Services. Termination shall not relieve Company’s obligation to pay all charges accrued before the effective date of termination.  Sections 2, 4, 5, 6, 7, 8.4, 9, and 10 will survive the expiration or termination of this Agreement. 
  2. Governing Law and Venue.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without reference to conflicts of laws principles.  Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in New York, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in New York.  Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court.   The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Both parties shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to the Services.  
  3. MISCELLANEOUS. 
    1. Independent Contractor Status.  The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee between the parties.  Neither party is, or will hold itself out to be, an agent of the other party.  Neither party is authorized to enter into any contractual commitment on behalf of the other party. 
    2. Entire Agreement.  These Terms and Conditions, together with the attached Order Form, contain the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in a writing signed by both parties.  In the event of a conflict between the terms in the Order Form and these Terms and Conditions, the terms contained in these Terms and Conditions shall control unless otherwise expressly stated in the Order Form. 
    3. Severability.  In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect.  
    4. Assignment.  Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to a successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning party in writing of the assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.  
    5. Force Majeure.  Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance  caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes. 
    6. Notices.  Any notice given under this Agreement shall be in writing and shall be sent via overnight mail by a nationally recognized express delivery service addressed to the address set forth in the Order Form.