Master Service Agreement

This Master Service Agreement (the “Agreement”) is made on the date specified in Schedule A of the Statement of Work (the “Effective Date”), by and between Flowlie Technologies, Inc., a Delaware corporation (the “Provider” or “Flowlie”) and the customer identified in Schedule A of the Statement of Work (the “Customer”), and together with the “Customer,” each a “Party” and collectively, the “Parties.”

Recitals

WHEREAS, the Provider provides software and consulting services to its clients and assists them in developing an investor relations strategy (the “Business”). 

WHEREAS, the Provider developed a cloud-based software platform, which consists of technology hosted on Provider’s computers and accessed remotely, via the Internet, allowing startup founders to identify relevant VC investors based on their degree of fit, create target lists to plan outreach, store and share pitch decks, track document access, manage CRM pipelines, and benchmark round details to the market (the “SaaS”). 

WHEREAS, the Provider also engages in consulting services helping startup founders improve their pitch decks, one-pagers, data rooms, outreach messaging, and investor updates, develop a comprehensive multi-round funding strategy, and create an investor relations function as well as educating and training founders on fundraising best practices, pitching, running an efficient process, and investor management (the “Professional Services”).

WHEREAS, THIS AGREEMENT DOES NOT ESTABLISH A BROKER-CLIENT RELATIONSHIP, AND THE PROVIDER EXPLICITLY DISCLAIMS ANY ASSOCIATION, RESPONSIBILITY, OR LIABILITY ASSOCIATED WITH BROKERAGE SERVICES OR TRANSACTIONS. THE PROVIDER DOES NOT ACT AS A BROKER AND DOES NOT ENGAGE IN BUYING, SELLING, OR TRADING SECURITIES OR OTHER FINANCIAL INSTRUMENTS ON BEHALF OF CLIENTS AND DOES NOT PROVIDE ANY ASSISTANCE WITH FINDING BUYERS AND SELLERS OF BUSINESSES INCLUDING ANY ACTIVITIES RELATED TO MERGERS AND ACQUISITIONS.

WHEREAS, THE PROVIDER DOES NOT CHARGE A SUCCESS FEE FOR ANY FUNDRAISING OUTCOMES, IF ANY, OF THE CUSTOMER RESULTING FROM THEIR USE OF THE SAAS OR THE PROFESSIONAL SERVICES. 

WHEREAS, THE PROVIDER DOES NOT GUARANTEE ANY OUTCOME, FINANCIAL OR NON-FINANCIAL, FROM THE CUSTOMER USE OF THE SAAS OR THE PROFESSIONAL SERVICES DURING OR AFTER THE SUBSCRIPTION PERIOD.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES WILL PROVIDER PROVIDE (I) ANY ADVICE THAT WOULD RESULT IN IT BECOMING AN “INVESTMENT ADVISER” AS DEFINED IN THE U.S. INVESTMENT ADVISORS ACT OF 1940, AS AMENDED, AND RULES AND REGULATIONS THEREUNDER OR (II) ANY ASSISTANCE WITH THE ISSUANCE, OFFER OR SALE OF SECURITIES THAT WOULD RESULT IN PROVIDER BECOMING A “BROKER” OR “DEALER” AS SUCH TERMS ARE DEFINED IN THE U.S. SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 

As used herein, the term “Discloser” shall refer to the Provider whenever the context refers to the Provider’s Confidential Information being disclosed to the Customer, which is referred to as “Recipient” in that context. Conversely, the term “Discloser” shall refer to the Customer whenever the context refers to the Customer’s Confidential Information being disclosed to the Provider, which is referred to as “Recipient” in that context.

1. Definitions.

1.1. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
‍
1.2. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
‍
1.3. “Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.
‍
1.4. “Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback.

1.5. "Customer Materials" means data, information, or materials owned or provided by or on behalf of Customer for use with the Professional Services, but excludes Feedback and Customer-procured Third-Party Materials.

1.6. “Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.

1.7. “Documentation” means the usage manuals and instructional materials for the SaaS or Software that are made available by Provider.

1.8. “Feedback” means suggestions, feedback, or comments about the Services or related offerings.

1.9. “Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
‍
1.10. “High-Risk Activity” means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
‍
1.11. “Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.

1.12. “Notice of Non-Renewal” means the written communication provided by either party to terminate a subscription or contractual agreement at the end of its current term. This notice serves as confirmation of the decision not to renew the agreement for an additional term and establishes the effective date of termination.

1.13. "Pre-Existing Materials" means any information, tools, materials, or intellectual property that Provider developed or owned before the Effective Date or developed after the Effective Date that are independent from or outside the scope of the Agreement, and any derivatives of these items that are not unique to Customer or that have generally applicable use and do not incorporate or disclose any Customer Confidential Information.

1.14. "Product” means the SaaS, Software, and Documentation.

1.15. “Product and Services Catalog” means a detailed list describing the SaaS and Professional Services products, services, and pricing.

1.16. “Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.

1.17. “Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.

1.18. “Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.

1.19. “Statement of Work” or SOW means the document set forth in Schedule A.

1.20. “Subcontractors” means other people or companies engaged by Provider to perform some of the Professional Services, including Provider's Affiliates.

1.21. “Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product. 

1.22. “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.

2. SaaS.

2.1. Use Limitations. The subscription includes:
a) One (1) individual Premium account for the Product;
b) One (1) 1-hr onboarding session to Product for the Customer’s leadership team;
c) One (1) 1-hr quarterly business review to discuss Product Feedback;
d) Priority access to new features including experimental ones; AND
e) Priority consideration of feature requests from Customer as long as such requests are in the best interest of the Provider.

2.2. Access and Use. During the term of this Agreement, Customer may access and use Provider’s SaaS. Provider retains all right, title, and interest in and to the SaaS, including without limitation all software included in and used to provide the SaaS and all logos and trademarks reproduced through the SaaS. This Agreement does not grant Customer (a) any right to reproduce, modify, distribute, or publicly display or perform the software included in the SaaS or (b) any other right to the SaaS not specifically set forth herein.

2.3. Service Level. Provider will try to inform Customer before scheduled service disruptions through the Cloud Service or by email.

2.4. Technical Support. During the Subscription Period, Provider will provide customer support available Monday through Friday from 9 AM to 8 PM ET.

2.5. User Accounts. Customer is responsible for all actions on Users’ accounts and for Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised. 

2.6. Feedback and Usage Data. Customer is required to give Provider Feedback. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, and enhance Provider’s products and services without restriction or obligation. However, Provider may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users. Provider has not agreed to and does not agree to treat as confidential any Feedback that Customer, Customer’s Clients, or other Users provide to Provider, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Customer’s Client or other User in question.

2.7. Customer Content. Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content. 

2.8. Co-Marketing. During the Subscription Period, both Provider and Customer have the right to refer to the other party on their website and on social media.

3. Professional Services.

3.1. Use Limitations. The subscription includes:
a) The amount of hours per month of Professional Services set forth in the SOW, as described in this Section 3 (Professional Services); AND
b) One (1) 45-minute business strategy call with the frequency established in the SOW.

3.2. Scope of Services. Provider can perform only the following Professional Services during the Subscription Period depending on the needs of the Customer:
a) Audits, feedback, and suggested improvements on pitch decks, one-pagers, memos, and data rooms.
b) Audits, feedback, and suggested improvements on outreach messaging and company positioning in relation to industry competitors.
c) Audits, feedback, and suggested improvements on pitching and company verbal presentations (such as accelerator demo days).
d) Audits, feedback, and suggested improvements on investor updates for existing investors in Customer.
e) Audits, feedback, and suggested improvements on board updates.
f) Research on private market data including funding volume, valuation ranges, dilution expectations, average runway, and traction expectations.
g) Educational and training sessions on fundraising best practices, funding vehicles, round structures, funding timelines, pitching investors, company positioning, running an effective fundraising process, board management, and stakeholder engagement.
h) Support on developing a comprehensive multi-round funding strategy and an investor relations function.
i) Support on keeping the cap table and the data room updated and answering existing investors' audit document requests.
j) Support on developing a Board of Directors and Board of Advisors as well as managing relations with them.

3.3. Prohibited Services. Notwithstanding anything herein to the contrary, under no circumstances will Provider provide:
a) Any advice that would result in it becoming an “investment adviser” as defined in the U.S. Investment Advisors Act of 1940, as amended, and rules and regulations thereunder.
b) Any assistance with the issuance, offer, or sale of securities that would result in Provider becoming a “broker” or “dealer” as such terms are defined in the U.S. Securities Exchange Act of 1934, as amended.
c) Any fundraising assistance that would result in Provider becoming a “placement agent” for private placements of securities including any solicitation of investment on behalf of the Customer.
d) Referrals to registered broker-dealers, investment companies (or mutual funds, including hedge funds), or other securities intermediaries.
e) Any assistance with finding buyers and sellers of businesses including any activities related to mergers and acquisitions.

3.4. Deliverables. As a result of Professional Services described in Section 3.2 (Scope of Services), various documents may be created by Provider for Customer including but not limited to:
a) CRM templates and set-up for pipeline management;
b) Lists of qualified prospective investors with contact information;
c) Pitch deck presentations;Board deck presentations;
d) Company descriptions and presentation blurbs;
e) “How to” educational materials;
f) Outreach strategy documentation; 
g) Multi-round dilution Excel models;
h) Pro-forma financial growth Excel models;
i) Cash flow monitoring Excel models;
j) KPI tracking system; OR
k) Valuation comparables reports.

3.5. Acceptance and Rejection. Deliverables will be considered accepted (“Acceptance”) (a) when Customer provides Provider written notice of acceptance or (b) 7 days after delivery, if Customer has not first provided Provider with written notice of rejection. Customer may reject a Deliverable only if it materially deviates from its specifications and requirements listed in the applicable SOW and only via written notice setting forth the nature of such deviation. In case of such rejection, Provider shall correct the deviation and redeliver the Deliverable within 14 days. After redelivery pursuant to the previous sentence, the parties shall again follow the acceptance procedures set forth in this Section 3.4. This Section 3.5, in conjunction with Customer’s right to terminate for material breach where applicable, sets forth Customer’s only remedy and Provider’s only liability for failure of Deliverables.

3.6. Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element subject to this Agreement’s terms including without limitation license and indemnity terms. Provider retains ownership of all Deliverables, and Customer receives no right, title, or interest in or to Deliverables except as specifically set forth in this Agreement.

3.7. Cooperation. Customer will reasonably cooperate with Provider to allow the performance of Professional Services. Provider is not responsible for an inability to perform the Professional Services caused by Customer's failure to cooperate as reasonably requested. Provider will provide its own equipment and tools to perform the Professional Services.

3.8. Subcontractors. Provider may use Subcontractors to perform the Professional Services only with Customer’s prior permission. However, Provider may use its Affiliates to perform Professional Services without Customer's prior permission. If Provider uses Subcontractors to perform Professional Services, Provider is responsible for (a) ensuring its Subcontractors’ compliance with this Agreement, and (b) making all payments owed to its Subcontractors for their portion of the Professional Services.

3.9. Customer Obligations. Customer will comply with the following:
3.9.1. Full Disclosure of Information. Making all relevant information available to the Provider in order for Provider to provide the Professional Services.
3.9.2. Full Access to Documents. Making all relevant documents available to the Provider in order for Provider to provide the Professional Services.
3.9.3. Timely Response to Requests. Making all reasonable efforts to respond in a timely manner to all the requests and questions of the Provider.

3.10. Customer Materials. Provider may copy, display, modify, and use Customer Materials only as needed to provide the Professional Services. Customer is responsible for the accuracy and content of Customer Materials.

4. Restrictions & Obligations.

4.1. Restrictions of Use. Except as expressly permitted by this Agreement, Customer will not (and will not allow any anyone else to):
a) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction);
b) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product;
c) remove any proprietary notices or labels;
d) copy, modify, or create derivative works of the Product;
e) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product;
f) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization;
g) use the Product to develop a competing service or product;
h) use the Product with any High-Risk Activities or with activity prohibited by Applicable Laws;
i) use the Product to obtain unauthorized access to anyone else’s networks or equipment; OR
j) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.

4.2. Acceptable Use. Customer’s use of the Product must comply with all Documentation, the Terms of Service, and the Acceptable Use Policy, all of which can be found on the Provider’s website at https://www.flowlie.com.

4.3. Customer’s Clients & Other Users; System Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.

4.4. Suspension. If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days after the Payment Period; (b) breaches Section 4.1 (Restrictions of Use); (c) breaches Section 4.2 (Acceptable Use); or (d) uses the Product in violation of the Agreement or in a way that materially and negatively impacts the Product or others, then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.

5. Payment & Taxes.

5.1 Fees. 
5.1.1. The fee for the SaaS and Professional Services is determined in the SOW.
5.1.2. Provider’s compensation is in no way dependent upon, or related to, the outcome or size of any transaction involving the purchase and sale of private securities. Provider does not charge a success fee for any fundraising outcomes, if any, of the Customer resulting from their use of the SaaS or the Professional Services.
5.1.3. Provider does not receive any trailing commissions, such as 12b-1 fees.

5.2. Payment Period. The fee must be paid in advance of the period, as selected in Section 5.1.1 (Fees), in which the SaaS is accessed by the Customer and no later than 14 days after the receipt of the invoice.

5.3. Invoice Period. The invoice will be sent each quarter or each year, as selected in Section 5.1.1 (Fees), 14 days in advance of the next period of service.

5.4. Fees and Invoices. All fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid fees allowed with specific termination rights as defined in Section 6.5 (Termination for Cause), fees are non-refundable. Provider will send invoices for fees applicable to the Product once per Invoice Period in advance starting on the Subscription Start Date.

5.5. Payment. Customer will pay Provider the fees and taxes in each invoice in U.S. Dollars within the Payment Period. If the payment is not made in full, Provider reserves the right to delay the delivery of services without incurring any liability for such delay. Provider may withhold any deliverables specified in the Agreement until full payment of the Invoice or all installments has been received. Provider may continue to withhold deliverables until the total balance is paid in full.

5.6. Taxes. Customer is responsible for all duties, taxes, and levies that apply to fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes. Customer is responsible for providing Provider with a valid VAT or GST tax ID, if applicable in their jurisdiction.

5.7. Payment Dispute. If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Provider about the dispute during the Payment Period for the invoice and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 14 days after the end of the Payment Period. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.

5.8. Fee Adjustments upon Renewal. In the event of renewal, Provider reserves the right to adjust the Subscription Fees to align with Provider’s current list price as outlined in Provider’s Product and Services Catalog. Should such an adjustment apply to Customer’s subscription, Customer will receive a notification at least thirty (30) days before their renewal date, and the revised fees will take effect at the commencement of the subsequent Subscription Period. Should Customer disagree with the proposed adjustment, either Party may opt to terminate Customer’s subscription upon the conclusion of the existing Subscription Period, sending to the other Party a Notice of Non-Renewal.

6. Term & Termination.

6.1. Subscription Start Date. The subscription will begin on the Effective Date.

6.2. Subscription Period. The subscription will last for the period of time stated in the SOW.

6.3. Renewal. The subscription will automatically renew each Subscription Period unless the Customer gives a written Notice of Non-Renewal at least 14 days prior to the end of the current Subscription Period (the “Non-Renewal Notice Date”).

6.4. Agreement Term. This Agreement will start on the Effective Date and continue for the longer of one year or until all Subscription Periods have ended.

6.5. Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure a material breach of the Agreement within 30 days after receiving notice of the breach; (b) materially breaches the Agreement in a manner that cannot be cured; (c) dissolves or stops conducting business without a successor; (d) makes an assignment for the benefit of creditors; or (e) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days. A party must notify the other of its reason for termination.

6.6 Effect of Termination. Upon expiration or termination:
a) Customer will no longer have any right to use the Product or Technical Support.
b) Provider will no longer have to provide the Professional Services. 
c) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control in accordance with Section 9.4 (Return or Destruction of Materials) below.
d) Provider will submit a final invoice for all outstanding fees accrued before termination and Customer will pay the invoice according to Section 5 (Payment & Taxes).

6.7. Early Termination. Notwithstanding Section 6.5 (Termination for Cause) above, Customer may terminate this Agreement during the first 3 months following the Effective Date for any or no reason. To terminate this Agreement early, Customer must notify Provider about termination by giving the Provider written notice, including by email communication. In the event of an early termination, Section 6.6 (Effect of Termination) goes into effect at the end of the 3 months following the Effective Date. The Fees paid for the first quarter of service are non-refundable.

6.8. Survival. 
6.8.1. The following sections will survive expiration or termination of the Agreement: Section 1 (Definitions), Section 2.6 (Feedback and Usage Data), Section 4.1 (Restrictions of Use), Section 5 (Payment & Taxes) for fees accrued or payable before expiration or termination, Section 6.6 (Effect of Termination), Section 6.8 (Survival), Section 7 (Representations & Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Intellectual Property), and Section 13 (General Terms).
6.8.2. Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 10 (Confidentiality) will continue to apply to retained Confidential Information.

7. Representations & Warranties.

7.1. From Customer. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to Provider or through the System; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

7.2. From Provider. Provider does not guarantee any outcome, financial or non-financial, from the Customer use of the SaaS or the Professional Services during or after the Subscription Period.

7.3. Warranty Disclaimers. CUSTOMER ACCEPTS THE SAAS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER CONTENT WILL REMAIN PRIVATE OR SECURE

8. Limitation of Liability.

8.1. Dollar Cap. PROVIDER’S LIABILITY WILL NOT EXCEED THE FEES PAID PURSUANT TO THE APPLIABLE AGREEMENT DURING THE YEAR PECEDING THE INJURY IN QUESTION, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO SUCH AGREEMENT. THE LIMITS OF LIABILITY IN THE PRECEDING SENTENCE ARE CUMULATIVE AND NOT PER-INCIDENT.

8.2. Customer Covered Claims. Any action, suit, proceeding, or claim that (a) Customer Materials or Third-Party Materials procured by Customer, when used by Provider according to the terms of the Agreement, violate, misappropriate, or otherwise infringe upon anyone else’s intellectual property or other proprietary rights; or (b) arises out of Customer’s gross negligence, fraud, or willful misconduct.

8.3. Damages Waiver. Each party’s liability for any claim or liability arising out of or relating to this Agreement will be limited to the fullest extent permitted by Applicable Laws. Under no circumstances will either party be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

9. Indemnification.

9.1. Protection by Provider. Provider will not indemnify, defend, and hold harmless Customer from any claims.

9.2. Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claim.

9.3. Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

9.4. Exclusive Remedy. This Section 9 (Indemnification) describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

10. Confidentiality.

10.1. Definition of Confidential Information. “Confidential Information” means information and physical material not generally known or available outside Discloser and information and physical material entrusted to Discloser in confidence by third parties. Confidential Information includes, without limitation: technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to employees and consultants of the Discloser (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, suppliers and customers, portfolio companies, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed by Discloser (whether by oral, written, graphic or machine-readable format), which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding any failure to so identify it, however, all of the Provider’s financial models, pitch decks, and usage data shall be Confidential Information of the Provider.

10.2. Nondisclosure of Confidential Information. Unless otherwise authorized in the Agreement, Recipient shall not use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Cloud Service and the Professional Services. Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties or to employees of Recipient, other than directors, officers, employees, consultants, and agents of Recipient who are required to have the information in order to carry out the discussions regarding the SaaS and the Professional Services. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature. Recipient shall notify Discloser of any misuse, misappropriation, or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient’s attention. 

10.3. Exceptions. Notwithstanding the above, information disclosed hereunder shall not be considered Confidential Information as defined herein where Recipient can prove that such information:
a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Recipient;
b) was known to Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
c) was independently developed by Recipient without any use of the Confidential Information, as demonstrated by files created at the time of such independent development;
d) is disclosed generally to third parties by Discloser without restrictions similar to those contained in this Agreement;
e) becomes known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights;
f) is disclosed with the prior written approval of Discloser; OR
g) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient shall provide prompt notice of such court order or requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure.
10.3.1. In addition, Feedback does not constitute Customer’s Confidential Information and Provider may use Customer’s Confidential Information to provide the Product.

10.4. Other Exceptions and Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b) (the “DTSA”), each Party is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement: 
a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
b) Use Of Trade Secret Information In Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to a court order.

10.5. Return or Destruction of Materials. Recipient shall, except as otherwise expressly authorized by Discloser, not make any copies or duplicates of any Confidential Information. Any materials or documents that have been furnished by Discloser to Recipient in connection with the Cloud Service, together with all copies of such documentation (if any), shall be promptly returned or destroyed by Recipient within ten (10) days after (a) the end of the Subscription Period or (b) the written request of Discloser; provided, however, that Recipient may retain copies of such materials or documents that are stored on Recipient’s IT backup and disaster recovery systems until the ordinary course deletion thereof.

10.6. No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright, or other intellectual property right of Discloser, nor shall this Agreement grant Recipient any rights in or to Discloser’s Confidential Information other than the limited right to review such Confidential Information solely for the purposes of the Program as outlined in this Agreement. Nothing in this Agreement requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at Discloser’s option.

10.7. No Reverse Engineering. Recipient shall not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of Discloser unless permitted in writing by Discloser.

10.8. Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).

11. Intellectual Property.

11.1. Deliverables. Provider retains all right, title, and interest in the Deliverables. Provider grants Customer a non-exclusive, non-transferable, worldwide license to use Deliverables during the Subscription Period.

11.2. Pre-Existing Materials. To the extent Provider incorporates Pre-Existing Materials into Deliverables, Provider grants Customer a non-exclusive, non-transferrable, worldwide license to use Pre-Existing Materials during the Subscription Period only as necessary to use the Deliverables according to this Agreement.

11.3. Reservation of Rights. Except for the limited license to copy and use Software and Documentation in Section 2.2 (Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date. Except for the limited rights in Section 2.7 (Customer Content), Customer retains all right, title, and interest in and to the Customer Content. Except for the limited rights in Section 3.10 (Customer Materials), Customer retains all right, title, and interest in and to the Customer Content.

11.4. Ownership. Provider owns all Feedback. Customer hereby assigns to Provider all its rights, title, and interest in and to Feedback and will reasonably cooperate with Provider as needed to establish, prove, or defend Provider’s ownership of Feedback.

11.5. Retention, Deletion, and Retrieval of Customer Content. For information regarding the retention and deletion of Customer Data, please see Provider’s DPA which can be found on the Provider’s website at https://www.flowlie.com.

11.6. Data Practices and Machine Learning. We may use Customer Content for machine learning to support and develop features and functionality within the SaaS and similar products and services. You instruct us to use Customer Content for such purposes. You may opt out of having your Customer Content used for machine learning by emailing vlad@flowlie.com.

12. Non-Solicitation Agreement.

Each party covenants and agrees that during the Subscription Period and for a period expiring eighteen (18) months after the end of the Subscription Period for any reason such party will not, regardless of who initiates contact: 
a) directly or indirectly solicit, induce, encourage, influence, or persuade, or attempt to solicit, induce, encourage, influence, or persuade any officer, employee, or agent of the other party or any of its affiliates to alter, reduce, or terminate their employment or relationship with the other party;
b) directly or indirectly solicit, induce, encourage, influence, or persuade, or attempt to solicit, induce, encourage, influence, or persuade any customer of the other party, including without limitation anyone who, during the Subscription Period, engaged in discussions with the other party for the purchase of products or services, to alter, reduce, or discontinue its relationship with the other party; OR
c) directly or indirectly solicit, induce, encourage, influence, or persuade, or attempt to solicit, induce, encourage, influence, or persuade any supplier or vendor of the other party to alter, reduce, or discontinue its relationship with the other party.

12.1. The geographic limitation to this Section 12 (Non-Solicitation Agreement) is any territory of the world.

12.2. The Provider and Customer agree that: this provision does not impose an undue hardship on Customer and is not injurious to the public; that this provision is necessary to protect the business of the Provider and its affiliates; and the scope of this Section 12 (Non-Solicitation Agreement) is reasonable in terms of length of time and geographic scope.

13. General Terms.

13.1. Entire Agreement. This Agreement, together with the Statement of Work (“SOW”) and its attachments (if any) are, are the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. 

13.2. Modifications, Severability, and Waiver. Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. However, Provider may update Technical Support, Terms of Service, or the Acceptable Use Policy by giving Customer 30 days prior notice. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.

13.3. Governing Law. Except where preempted by federal law, the validity, interpretation, construction, and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed, and interpreted in accordance with the laws of the state of Delaware, without giving effect to principles of conflicts of law.

13.4. Chosen Courts. The parties will bring any legal suit, action, or proceeding about this Agreement in the state and federal courts located in the state of Delaware and each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the state of Delaware.

13.5. Injunctive Relief. Despite Section 13.3 (Governing Law) and Section 13.4 (Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

13.6. Recovery of Interest and Attorneys’ Fees. In the event of any legal action to enforce or interpret this Agreement, the Customer shall pay the Provider reasonable attorneys’ fees, interest at the rate of 2 percent, and other costs and expenses incurred by the Provider. In addition, the Customer shall pay to the Provider reasonable attorneys’ fees, statutory interest on the Judgment, and other costs and expenses incurred by the Provider in enforcing, or on appeal from, a judgment in favor of the Provider.

13.7. Other Agreements. Customer represents and warrants to the Provider that there are no restrictions, agreements, or understandings whatsoever to which Customer is a party that would prevent or make unlawful Customer’s execution of this Agreement, that would be inconsistent or in conflict with this Agreement or Customer’s obligations hereunder, or that would otherwise prevent, limit or impair the performance of Customer’s duties under this Agreement.

13.8. Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees. 

13.9. Export Controls. Customer represents and warrants that it shall comply with all laws and regulations applicable to Customer with respect to the purchase and use of the Services and/or deliverables. Customer further acknowledges and agrees that the Services and/or deliverables purchased, and SaaS licensed, under this Agreement, may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (the “EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (the “ITAR”) maintained by the Department of State. Specifically, Customer covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of the Services and/or deliverables to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of this Agreement.

13.10. Anti-Bribery. Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA") and the U.K. Bribery Act of 2010 (the “UKBA”) and agrees to comply with its terms as well as any provisions of local law applicable to this Agreement and/or the Services. Customer further understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment, and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the Services and/or deliverables. Customer agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anti-corruption or anti-bribery law.

13.11. Restrictions. Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): 
a) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction);
b) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product;
c) remove any proprietary notices or labels;
d) copy, modify, or create derivative works of the Product;
e) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product;
f) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization;
g) use the Product to develop a competing service or product;
h) use the Product with activity prohibited by Applicable Laws;
i) use the Product to obtain unauthorized access to anyone else’s networks or equipment; OR
j) upload, submit, or otherwise make available to the Product any information or content to which Customer does not have the proper rights.

13.12. Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

13.13. Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

13.14. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by fax or email, or otherwise delivered by hand or by messenger addressed to the parties at the addresses, fax numbers and/or email addresses of the parties set forth on the signature pages hereto, as may be updated in accordance with the provisions hereof. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger, or courier service, when delivered (or if sent via a nationally recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at the earlier of its receipt or three days after the same has been deposited in a regularly-maintained receptacle for the deposit of the mail, addressed and mailed as aforesaid, or (iii) if sent via fax, upon confirmation of fax transfer or, (iv) if sent via email, upon confirmation of delivery when directed to the relevant email address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day.

13.15. Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. Neither party is authorized to bind the other to any liability or obligation. 

13.16. No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.

13.17. Section Headings. The headings of sections and paragraphs of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.

13.18. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via fax, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

13.19. Acknowledgment of Full Understanding. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS FULLY READ, UNDERSTANDS, AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF CUSTOMER’S CHOICE BEFORE SIGNING THIS AGREEMENT.