Frame One | Master Services and Subscription Agreement

PLEASE READ THIS DOCUMENT CAREFULLY. THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT (“AGREEMENT”), TOGETHER WITH ALL EXHIBITS AND SERVICE ORDERS (EACH AS DEFINED HEREAFTER), ALL OF WHICH ARE INCORPORATED INTO THE AGREEMENT BY THIS REFERENCE HEREIN, SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH FRAME ONE LLC, A CONNECTICUT LIMITED LIABILITY COMPANY, (“FRAME ONE”, “COMPANY” OR “WE”) GRANTS TO YOU (“CUSTOMER” OR “YOU”) THE RIGHT TO USE WWW.FRAMEONE.COM AND FRAME ONE’S OTHER OWNED AND OPERATED WEBSITES (THE “SITES”), ANY APPLICATIONS PROVIDED BY FRAME ONE (THE “APPLICATIONS”) AND ITS INFRASTRUCTURE, INCLUDING THE DATA STORAGE, REMOTE COMPUTERS, NETWORK AND INTERNET CONNECTIONS AND COLLABORATION SERVICES, FEATURES OR CONTENT OFFERED BY FRAME ONE THEREIN (THE “INFRASTRUCTURE” AND TOGETHER WITH THE SITES AND THE APPLICATIONS, THE “SERVICES”). BY SIGNING A SERVICE ORDER, ACCESSING, RECEIVING, AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.

1. ACCESS TO THE SERVICES

Services Subscription. Subject to the terms and conditions of this Agreement, Frame One grants to you a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services during the Term (as set forth in Section 5.1 below) by the number of Permitted Users as specified in an applicable Service Order, solely for Customer’s internal business purposes.
Services Changes. Frame One may, at its sole discretion, change, remove, add, or enhance features of the Services from time to time. Frame One will notify you of any discontinuation of the Services.
Permitted Users. Customer may permit its employees, independent contractors, and consultants to use the Services on its behalf (“Permitted Users”). Frame One will assign a distinct username to each Permitted User upon registration. Subsequently, the Permitted User is required to select a unique password. Permitted Users are responsible for maintaining the confidentiality of their login credentials, including, without limitation, not sharing their login credentials with any third party. By creating an account, Permitted Users agree to abide by this Agreement and the terms and conditions outlined in the Acceptable Use Policy (“AUP”) linked hereto in Exhibit A.
Data Center Options. Customer will have the choice to select its preferred data center for storing and processing data for each Project (as defined below). Customer is solely responsible for the selection of a data center, and the Services do not provide any warranty or guarantee regarding the performance, security, or availability of any specific data center. Notwithstanding the foregoing, Frame One reserves the right to modify or change the available data center options. Customer will be notified of such changes and may need to update the data center selection accordingly.
Trial or Beta Services. From time to time, Frame One may make features or functionalities identified as beta functionality or trial services (“Beta Services”) available to you at no charge. Customer may choose to try such Beta Services or not in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms and conditions. The Beta Services are not considered “Services” under this Agreement; however, all restrictions, Frame One’s reservation of rights, and Customer’s obligations concerning the Services, and use of any related Third-Party Service (as defined below in Section 3), shall apply equally to Customer’s use of Beta Services. Frame One may discontinue Beta Services at any time in Frame One’s sole discretion. Frame One will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Support Requests; Training. In the event you encounter technical issues or require troubleshooting on the Services or would like guidance on service features and functions, you may contact Frame One support at [email protected] or by visiting help.frameone.com. Frame One reserves the right to record phone calls for quality assurance and training purposes.

2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES

Restrictions; Limitations. Customer shall not itself, or through any third party: (i) circumvent or attempt to circumvent any Frame One security measure or interfere with or attempt to interfere with the proper functioning or performance of the Services; (ii) share login information with, or otherwise grant access to the Services to any third party without the express written consent of Frame One; (iii) configure, copy or replicate all or any portion of the Services; (iv) modify, reverse engineer, decompile, disassemble, distribute, creative derivative works based on, copy or otherwise exploit all or any portion of the Services; (v) sell, sublicense, rent, lease, or otherwise exploit all or any portion of the Services; (vi) use the Services to operate in or as a time-sharing, outsourcing or service bureau environment or in any manner which supports the business of a third party; (vii) obscure, remove or alter any intellectual property rights notices or markings on the Services; (viii) access the Services for purposes of creating a competitive product; (ix) use the Services to transmit a virus, Trojan horse or other malware or programming routine intended to damage any system or data; (x) use any infringing Customer Material in connection with the Services; (xi) use the Services in a manner that violates any applicable law, regulation, or legal requirement or obligation; (xii) post, upload, transmit or provide any Customer Material that is, or Frame One reasonably deems to be, unlawful, harmful, abusive, libelous, defamatory, or otherwise objectionable; or (xiii) use the Services except as expressly permitted by this Agreement. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against Frame One or its affiliates, any patent infringement or other intellectual property infringement claim regarding the Services that Customer, or any Permitted User has used.
Customer’s Responsibility for Permitted Users. For purposes of this Agreement, the acts or omissions of any third party under a Permitted User account is considered the Permitted User’s acts or omissions. Customer is responsible for any access or use of the Services under each Permitted User’s account, including by any third parties that use any Permitted User account. In addition, Customer is responsible for ensuring that Customer and each Permitted User complies with the AUP. A Permitted User’s violation of the AUP will be deemed as a breach of the Agreement by Customer.
Suspension of Services. Frame One reserves the right to temporarily suspend access to the Services if Customer or any Permitted User violates the terms outlined in the sections of this Agreement titled “Services Subscription”, “Customer Restrictions and Responsibilities”, “Fees and Payment Terms” or “Ownership of Intellectual Property Rights” or if there is a reasonable belief that the Services or any of their components face a threat to security or functionality. Frame One will endeavor to provide advance notice to you based on the circumstances leading to the suspension. Frame One will use commercially reasonable efforts to restore the affected Services promptly after resolving the issue causing the suspension. However, if the situation persists beyond thirty (30) days after initial notice, Frame One reserves the right to terminate access under the Service Order. Any suspension or termination by Frame One under this Section 2.3 will not excuse Customer from its obligations to make payment(s) under this Agreement. Furthermore, in the event of a Permitted User’s breach of this Agreement or any related policies, including the AUP, Frame One retains the discretion to suspend their access to the Services. This suspension will remain in place until the breach is resolved, if possible.
Customer Responsibilities. Customer is responsible for appointing a representative (the “Company Administrator”) who will be primarily responsible for overseeing and coordinating Customer’s obligations in this Agreement. In addition, the Company Administrator is responsible for informing Frame One in writing regarding the number of resources (each, a “Project Resource”) required to house individual projects (each, a “Project”). The Company Administrator will appoint a representative (each, a “Project Administrator”) to oversee each Project. The Project Administrator is responsible for informing Frame One in writing regarding the designated Permitted Users who are authorized to access a Project so that Frame One may restrict access to any specific Project accordingly. In addition, the Project Administrator is responsible for any requests made to Frame One, including ensuring compliance with any security prerequisites mandated by Company partners, and Frame One shall not be liable for such requests. Permitted Users who have been granted access to a Project are responsible for their activity on a Project Resource, and Frame One will not be responsible or liable for any such Permitted User’s activity on such Project Resource.
Customer Systems. At its discretion, Customer may authorize Frame One to gain authenticated, supervised access to a Customer application, network, or system (“Customer System”) for the purpose of performing troubleshooting. Prior to any such troubleshooting being performed, Customer must communicate in writing with Frame One any specific security protocols or access standards related to the Customer System.

3. THIRD PARTY SERVICES

The Services may permit you to link to or access other websites, services, applications or resources on the Internet, and other websites, services, applications or resources may contain links to the Services (each, a “Third Party Service”). Additional terms may apply to Customer’s and a Permitted User’s use of a Third Party Service, including those set forth in the Third Party Service Acknowledgment. In the event additional terms do apply, such terms are set forth between Customer and the Third Party Service provider. Customer acknowledges and agrees that: (i) Customer acquires no right, title or interest in or to any intellectual property rights underlying a Third Party Service, except for the express rights granted to Customer under this Agreement; (ii) FRAME ONE MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS OR SERVICE LEVEL COMMITMENTS OF ANY KIND REGARDING ANY THIRD PARTY SERVICE, AND (iii) FRAME ONE OFFERS AND ASSUMES NO INDEMNITY OBLIGATIONS OR OTHER LIABILITIES OF ANY KIND REGARDING EACH THIRD PARTY SERVICE.

4. FEES AND PAYMENT TERMS

Fees; Invoices. Customer shall compensate Frame One in such amount(s) and at such time(s) as specified in an applicable Service Order (the “Fees”). All Fees will be payable no later than thirty (30) days after Customer’s receipt of an invoice therefor. All payments made under this Agreement shall be in United States Dollars (USD).
Taxes. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (Federal or State) taxes based solely on Frame One’s income.
Interest; Delayed Payments. In the event Customer fails to make a payment due to Frame One under this Agreement by the payment due date set forth in the applicable Service Order, then, without limiting Frame One’s other remedies under this Agreement, Customer shall (unless otherwise set forth in the Service Order) pay interest on the overdue sum at the maximum rate permitted under applicable law, calculated from the date the payment was originally due until the date of actual payment. Customer shall also pay to Frame One immediately upon demand all fees, costs and expenses (including reasonable attorneys’ fees) that Frame One incurs in connection with collecting the amounts due under the invoice.

5. TERM; TERMINATION

Term. The initial term of this Agreement shall begin upon the earlier of your use of any of the Services or execution by both Customer and Frame One of the initial Service Order and shall remain in effect until every Service Order hereunder has been terminated and each Service Order entered into by the parties shall be effective upon execution by both Customer and Frame One and shall continue in full force and effect until its termination (subject to survival of the terms thereof as described in Section 5.5 below).

Service Order Term. Unless otherwise expressly set forth in a Service Order, the Services are provided to you on a week-to-week basis. Each Service Order will automatically renew for consecutive one-week periods unless either party notifies the other before the start of the following week. For clarity, termination of a Service Order under this Section 5.2 or termination of the Agreement under Section 5.3 will not affect either party’s rights or obligations under any then-open Service Orders, which will continue to be governed by the terms and conditions of this Agreement until such Service Order(s) expires or is terminated in accordance with its terms or the terms hereof. Should the Customer wish to increase the number of available Project Resources beyond those initially approved by Frame One in writing, the Customer must notify Frame One with at least two (2) business days' notice.

Termination for Cause. Either party also shall have the right to immediately terminate this Agreement and/or any Service Order(s) by providing the other party with notice in writing in the event that (i) the other party materially defaults in performing any obligation under this Agreement (including any Service Order(s)) and such default continues uncured for a period of seven (7) days following written notice of default, to the extent such default is subject to cure; or (ii) the other party (A) has a receiver or similar party appointed for its property, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, files a petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it which petition is not dismissed within thirty (30) days of filing, or (B) engages in any unlawful business practice related to its performance under this Agreement.

Effect of Termination. Upon termination or expiration of this Agreement or any Service Order: (i) all license and access rights granted herein will immediately cease to exist; (ii) each party will return to the other or destroy all materials and Confidential Information of the other party that it has in its possession (provided, each party may retain: (a) an archival copy of the other party’s Confidential Information in any computer network archival backup system, and (b) a copy in the possession of counsel of its own choosing for purposes of legal or regulatory compliance or for use in pursuing, defending or resolving a claim arising hereunder). Upon termination or expiration of this Agreement or any Service Order, Customer shall remain responsible for all payments due and incurred through the effective date of termination, including any outstanding payments for Services rendered or commitments made up to and including the effective date of termination. Customer shall not be entitled to any refund, credit, or proration of fees for any Services not utilized or any commitments not fulfilled by the effective date of termination.

Survival. Sections 3, 4 (to the extent of any outstanding payment obligations), 6, 7, 8, 9, 10, 11, 12, 13 and this Section 5.5 will survive termination or expiration of this Agreement. Termination of this Agreement or any Service Order by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable law.

6. CONFIDENTIALITY; PUBLICITY

Definition. Each party may have access to the other party’s Confidential Information. “Confidential Information” means information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), and which is identified as “confidential” or “proprietary” or which, given the nature of the information or material, or the circumstances surrounding the disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information does not include: (i) information that is or later becomes known from a party that is not required to maintain the information in confidence; (ii) information that is known to the public or is no longer confidential, unless it becomes publicly known or non-confidential because the confidentiality requirement under this Agreement was breached or as a result of a security breach; and (iii) information that is independently developed without reference to the other party’s Confidential Information.

Restrictions. Except as otherwise provided in writing, a party will not disclose the other party’s Confidential Information to any other party or use it for its own purposes, unless expressly permitted in writing by the other party or unless the use of the other party’s Confidential Information is required or anticipated to exercise its rights or perform its obligations under this Agreement. Each party will use the same level of care it uses to protect its own Confidential Information and will use, at a minimum, reasonable care to protect the other party’s Confidential Information. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to a court order or similar governmental authority of competent jurisdiction, provided, however, that the receiving party, to the extent legally permitted, will provide prompt notice of such order to the Disclosing Party to enable the Disclosing Party to act to prevent or restrict the ordered disclosure.

Breach. Money damages would not be a sufficient remedy for any breach by the Receiving Party of this Section 6, and the Disclosing Party will be entitled to injunctive relief, specific performance, or other appropriate equitable remedy for any such breach. The Disclosing Party’s election to pursue injunctive relief will not be a waiver of any of its other remedies available to it under law, equitable principles, or other legal theories.

Publicity. Except as otherwise agreed in writing (email to suffice), neither party may use the other party’s name, logos or marks without such party’s written approval in each case; except that Frame One may identify Customer as a Frame One customer, and may include Customer’s name and logo, on Frame One’s website, in press releases or statements to the media, and in marketing and promotional materials, including public promotional materials for a Project (e.g., posters).

7. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

Overview. The parties do not intend to convey under this Agreement any intellectual property rights in, or associated with, any of their respective products or services, including but not limited to, the Infrastructure and the workflows, storage solutions and automation systems made available by Frame One to Customer.

Ownership; Reservation of Rights. Except as expressly set forth in this Agreement, all intellectual property rights in and to the Services and any materials and content (including without limitation, photos, images, illustrations, templates, fonts, video, and audio) that Frame One makes available to Customer in Frame One’s provision of the Services remains the sole property of Frame One and its licensors. Frame One owns all content, data, software, inventions, ideas, and other technology and intellectual property that it develops in connection with the Services.

Feedback. If Customer provides suggestions, ideas, opinions, input, or other feedback to Frame One, Frame One shall have an unconditional and unlimited right to use, reproduce, modify and disclose such feedback without any compensation or attribution to Customer. Notwithstanding the foregoing, Frame One is not required to consider or implement any feedback.

Customer Material. Customer retains all right, title and interest in and to any and all materials that Customer provides, stores or processes through the Services (the “Customer Material”). Customer is solely responsible for obtaining all rights and licenses to the Customer Material. Customer grants to Frame One all necessary licenses and rights in and to the Customer Material as necessary for Frame One to provide the Services to Customer or as required by law. Frame One will not knowingly use or access any Customer Material except as necessary to provide the Services. Notwithstanding the foregoing, Customer grants Frame One access to the Customer Material for the purpose of performing troubleshooting and addressing support requests. Frame One shall not be responsible nor liable for the legality, accuracy, quality, and performance of any Customer Material.

Usage Data. Frame One may create and use data and metrics regarding Customer’s use of the Services for its internal business purposes, such as analytics, quality assurance, product and service development and improvement, and service level activity, and for its other business purposes (collectively, “Usage Data”). Usage Data will be owned by Frame One and is not considered Customer Confidential Information under this Agreement. For the avoidance of doubt, Usage Data does not include any Customer Material.

8. PRIVACY

Frame One uses certain “personal data,” “personal information,” or “sensitive data” (as defined in the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”) and the California Consumer Privacy Act of 2018, as amended (the “CCPA”) (“Personal Data”) to operate, enhance, and advance the Services, as outlined in Frame One’s Privacy Policy linked hereto in Exhibit B. Regarding the Personal Data processed by Frame One for the provision of the Services, where Frame One functions as a “data processor” (for purposes of the GDPR) or a “service provider” (for purposes of the CCPA), both parties commit to adhering to the terms stipulated in any Data Processing Addendum established between them (“DPA”). In the event of any inconsistency between Frame One’s Privacy Policy and a DPA, the DPA will take precedence.

9. SECURITY

Frame One Security Measures. Frame One uses commercially reasonable physical, technical, and administrative procedures designed to protect against the loss, misuse and unauthorized access, disclosure, alteration, or destruction of Customer Material. Such measures include, without limitation, data encryption at rest, encrypted remote access, multifactor authentication, network segmentation, virus and malware scanning, internet traffic filtering, event logging and analysis, and identity-based access.

Multi-Factor Authentication. Frame One uses unique user/system identities and limits the use of shared, default, or temporary credentials. The Services require log-in using multi-factor authentication (“MFA”) which is known to materially reduce the risk of unauthorized use of or access to the Services. Accordingly, notwithstanding anything to the contrary, Frame One will not be responsible for any damages, losses or liability to Customer, Permitted Users or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of MFA. In addition, Frame One will not be responsible for any damages, losses or liability resulting from a Permitted User’s sharing of log-in credentials.

Retention and Destruction. Upon the expiration or termination of this Agreement, unless Customer explicitly notifies Frame One of its desire for Frame One to delete Customer Material, Frame One reserves the right to retain Customer Material for a period of up to four (4) weeks. Frame One retains the discretion to delete Customer Material if no notification is received within this four-week timeframe.

10. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

Mutual Warranties. Each party represents and warrants that: (i) it is an entity, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a professional and workmanlike manner.

Customer Warranty. Customer represents and warrants that: (i) its performance hereunder will not violate any provision of any other agreement or violate or conflict with any other restriction of any kind to which Customer is a party or by which it is bound; (ii) it will provide Frame One with all information and materials reasonably requested in order for Frame One to perform its obligations under this Agreement and the applicable Service Order; (iii) all materials provided by Customer to Frame One for use in connection with this Agreement, including Customer Material, do not and shall not infringe the intellectual property rights or any rights of any third party; and (iv) it has complied with and will comply with all laws, rules and regulations applicable to its performance under this Agreement.

Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES. IN PARTICULAR, FRAME ONE DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES WILL MEET CUSTOMER’S PARTICULAR REQUIREMENTS; (B) CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (C) ANY INFORMATION OBTAINED BY CUSTOMER AS A RESULT OF CUSTOMER’S USE OF THE SERVICES, INCLUDING ANY FRAME ONE CONTENT, WILL BE ACCURATE OR RELIABLE; AND (D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO CUSTOMER AS PART OF THE SERVICES WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, FRAME ONE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

11. LIMITATION OF LIABILITY

1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT FRAME ONE, ITS AFFILIATES, AND ITS LICENSORS WILL NOT BE LIABLE TO YOU AND/OR ANY THIRD PARTY FOR:

(1) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND

(2) ANY LOSS OR DAMAGE ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:

(A) ANY CHANGES WHICH FRAME ONE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);

(B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;

(C) YOUR FAILURE TO PROVIDE FRAME ONE WITH ACCURATE ACCOUNT INFORMATION; AND

(D) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.

2. THE LIMITATIONS ON FRAME ONE’S LIABILITY TO YOU IN SECTION 11.1 ABOVE WILL APPLY WHETHER OR NOT FRAME ONE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

3. EXCEPT WITH RESPECT TO LIABILITY FOR FRAME ONE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FRAME ONE’S LIABILITY TO YOU OR ANY THIRD PARTY IN ANY AND ALL CIRCUMSTANCE WILL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE TO FRAME ONE OVER THE THREE (3) MONTHS PERIOD PRIOR TO THE CLAIM. THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW.

12. INDEMNIFICATION

Indemnification by Customer. Customer hereby agrees to indemnify, defend and hold harmless Frame One, its affiliates and their respective officers, directors, agents, and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Customer Material and Customer’s use of the Services; (ii) arising out of any breach by Customer of any duty, representation or warranty under this Agreement; (iii) relating to a contaminated file, worm, virus, spyware, malware, adware, or Trojan-horse or the like originating from Customer Material; or (iv) the gross negligence or willful misconduct of Customer.

Indemnification by Frame One. Frame One hereby agrees to indemnify, defend, and hold harmless Customer, its affiliates and their respective officers, directors, agents, and employees (each, a “Customer Indemnitee”) from and against all Losses resulting from any claim, suit, action or proceeding brought by a third party against a Customer Indemnitee arising out of (i) a breach of the warranty set forth in Section 10.1; or (ii) the gross negligence or willful misconduct of Frame One. Notwithstanding the foregoing, Frame One shall have no obligation under this Section 12.2 to the extent such claim, suit, action or proceeding brought by a third party against a Customer Indemnitee is caused by (a) any use of the Services not in accordance with this Agreement; (b) Customer’s failure to comply with specifications or requirements supplied by Frame One; (c) any breach by Customer of its obligations under this Agreement; (d) the operation, combination or use of the Services without Frame One’s prior written consent, with products or services provided by Customer or third parties; or (e) Customer’s gross negligence, willful misconduct or intentionally wrongful conduct.

Indemnification Procedures. The indemnified party will provide the indemnifying party with: (i) prompt written notice of such claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim (as long as such settlement releases the indemnified party from any and all liability); and (iii) all reasonable cooperation assisting the indemnifying party's investigation, defense, and settlement of such matter requested by the indemnifying party.

13. MISCELLANEOUS

Relationship of Parties. This Agreement does not establish any relationship of partnership, franchise, joint venture, employment, fiduciary, or agency between the parties. Neither party will have the authority to bind the other party or incur obligations on the other’s behalf without the other party’s prior written consent.

Notices. Any communication hereunder must be given in writing and delivered in person, transmitted electronically, or mailed and in each instance will be deemed given upon receipt. Notices to Frame One shall be addressed to the attention of Sandy Patch, at 71 W 23rd Street, 19th Floor, New York, New York 10010, with a copy to [email protected]. All notices to Customer will be sent to the physical address and/or email address set forth in the applicable Service Order.

Headings and Severability. Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of this Agreement or any portion thereof. Any term or provision of this Agreement, which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.

Waiver and Cumulative Remedies. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative.

Assignment. The Services to be provided by Frame One to Customer under this Agreement are personal and cannot be assigned, delegated, or transferred without the express written consent of Frame One. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this Section 13.5 shall be void and of no effect.

Non-Solicitation. During and for a period of one (1) year following the Term, Customer agrees not to engage in the active solicitation, diversion, or attempts to recruit any current or former employee (employed by Frame One within the last year). This includes but is not limited to direct offers, inducements, or efforts to hire. It is understood that this restriction does not apply to general recruitment advertisements or postings directed to the public at large.

Alternative Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement shall be resolved through Alternative Dispute Resolution (ADR) in accordance with the rules and procedures of the American Arbitration Association (AAA) or any other mutually agreed ADR provider in New York. The ADR shall take place in New York, New York, unless the parties mutually agree otherwise. The parties shall cooperate in selecting a mutually acceptable arbitrator or mediator. If the parties are unable to agree on the arbitrator or mediator within ten (10) calendar days after the commencement of ADR proceedings, the AAA or the designated ADR provider shall appoint the arbitrator or mediator. The ADR proceedings shall be informal and confidential. The decision or award of the arbitrator or mediator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, either party may seek injunctive relief from a court of competent jurisdiction to prevent or address any actual or threatened violation of confidentiality, intellectual property rights, or the misuse of proprietary information. The parties acknowledge and agree that the prevailing party in the ADR proceedings shall be entitled to recover reasonable attorney’s fees and costs incurred in connection with the dispute. The parties further acknowledge and agree to waive any rights to a trial by jury or to participate in a class action.

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules.

Force Majeure. A party shall not be considered to be in default or breach of this Agreement, and shall be excused from performance or liability for damages, as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, strikes, epidemics, pandemics, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s reasonable control. This Section 13.9 does not excuse Customer’s payment of Fees due under this Agreement.

10.

Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding Customer’s use of the Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification or amendment of any provision of this Agreement shall be effective unless in writing signed by the parties. This Agreement is binding upon and inures to the benefit of, the parties and their respective permitted successors and assigns.

EXHIBIT A – Acceptable Use Policy
EXHIBIT B – Privacy Policy