Introduction

Welcome to Highgate Analytics! Please read these Terms of Use (the “Terms of Use”) carefully. This website (together with all associated webpages, the “Website”) and the information on this Website are owned by Highgate Analytics, Inc. (“Highgate”, “we”, “our” or “us”). These Terms of Use govern the use of our Website and apply to all internet users visiting or using the Website in any way. These Terms of Use also apply to customers using any services or resources available or enabled via the Website or referencing these Terms of Use including but not limited to a) the Highgate online sales analytics platform as implemented in Amazon Web Services (“AWS”) QuickSight and b) the Mergechart™ AppExchange app for Salesforce, (collectively, the “Services”). Your use of, and participation in, certain Services may be subject to additional terms or policies (“Supplemental Terms”) as such Supplemental Terms may either be added to the Terms of Use or notified to you. Additionally, your use or purchase of certain Services from Highgate will be governed by other agreements accepted by you when you register or sign up for or agree to use such Services from Highgate (you, as a party to such agreements, a “Customer”, and any such agreement, including but not limited to a SAAS Activation Agreement, a “Customer Agreement”). If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control. If the Terms of Use or Supplemental Terms are inconsistent with the Customer Agreement, the Customer Agreement shall control and supersede these Terms of Use and Supplemental Terms with respect to the subject matter of such Customer Agreement. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms”. Use of the term “you” throughout these Terms refers to you, as a user or as a Customer, as applicable, unless otherwise specified as applying only to Customers. BY BROWSING THE WEBSITE AS A USER AND/OR BY COMPLETING THE REGISTRATION PROCESS, BECOMING A CUSTOMER, OR SIGNING A CUSTOMER AGREEMENT, YOU REPRESENT THAT WHETHER YOU ARE A USER OR CUSTOMER (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HIGHGATE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR ANY SERVICES. THESE TERMS OF USE ARE EFFECTIVE AS OF THE EARLIER OF THE DATE OF YOUR FIRST VISIT TO OUR WEBSITE, OR THE DATE OF YOUR CUSTOMER AGREEMENT.

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PLEASE BE AWARE THAT THESE TERMS OF USE CONTAIN PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS OF USE. IN PARTICULAR, THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

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PLEASE NOTE THAT THESE TERMS OF USE ARE SUBJECT TO CHANGE BY HIGHGATE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Highgate will make a new copy of the Terms of Use available at its Website and any new Supplemental Terms will be made available herein or from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of these Terms of Use. Highgate may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), Highgate may, at its discretion, require you to stop accessing or using the Website and/or the Services. Otherwise, your continued access to or use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS OF USE.

1. Use of Personal Information

Your use of the Website and Services may involve the transmission or provision to us of certain personal information. Our policies with respect to the collection and use of such personal information are governed by our Privacy Policy, which is located at www.highgateanalytics.com/privacy-policy and which is incorporated by reference herein.

2. Supplemental Terms and Conditions for Services

Unless otherwise set forth in a Customer Agreement, Highgate will provide the Services to Customer for the Term set forth in the Customer Agreement subject to these Supplemental Terms (as parties to such Customer Agreement, each of Highgate and Customer, a “Party” and together, the “Parties”), and the Parties agree as follows:2.1 If you subscribe for and are provided access to Services or create an account, you are responsible for maintaining the security of your account credentials (including but not limited to administrative and user passwords) and you are fully responsible for all activities that occur under your account. You must immediately notify Highgate of any unauthorized uses of your account or any other breaches of security of which you become aware. Highgate will not be liable for any acts or omissions by you, including any damages of any kind, incurred as a result of such acts or omissions. Use of the Services and all related content is strictly limited to your internal business use only. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, internet access, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of Equipment, and for all uses of Customer Equipment with or without Customer’s knowledge or consent. Access to or use of some or all of the Services may be prevented, interrupted, or otherwise blocked by firewalls, cyber-security software, internet accessibility settings or other features, functionalities, incompatibilities, or configurations on Customer’s systems or Equipment or other third-party systems not under Highgate’s control, and Highgate has no responsibility to any party with respect thereto.2.2 Each Party represents and warrants to the other Party that: (i) it has the full power and authority (corporate or otherwise) required to enter into the Customer Agreement and to carry out its obligations thereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization; (iii) when executed and delivered by both Parties, the Customer Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) it is in compliance with, and shall perform its obligations under the Customer Agreement and the Terms, and in the case of Highgate, the Services, in compliance with all applicable laws.2.3 Either Party may terminate, upon written notice to the other Party, the Customer Agreement if such other Party materially breaches the Customer Agreement or Terms and fails to cure such breach within thirty (30) days after receipt of written notice of the notifying Party’s intention to terminate.2.4 Payment for amounts indicated on any invoice issued by Highgate are due within thirty (30) days after the date of such invoice. Fees are based on Services purchased according to the Customer Agreement. Payment obligations are non-cancelable, and all fees are non-refundable except in case of Highgate’s breach as set forth in Section 6.2. All amounts payable to Highgate will be made without setoff or counterclaim and without any deduction or withholding. Customer shall pay all charges and applicable sales tax to Highgate by pre-approved credit card or ACH debits. Customer will be responsible for any associated payment processing fees. Fees under Customer Agreements are firm for the Initial Term but thereafter, Highgate may revise fees for any extended or renewal term at the Highgate’s sole discretion, upon forty-five (45) days prior notice to Customer before the expiration of the then applicable term.2.5 If Customer disputes in good faith any charges contained in any invoice for services identified in any Customer Agreement, Customer will submit written notice of such disputed amounts (along with a detailed explanation as to why such amounts are in dispute) to Highgate within ten (10) business days of such invoice. Upon delivery of such written dispute notice, the Parties will cooperate and negotiate in good faith and use reasonable efforts to resolve such disputed charges.2.6 Customer will have no obligation or responsibility to pay any taxes or amounts (including interest, penalties, and fines) that are based upon the net income of Highgate. Should, in Highgate’s opinion, taxes or other government-related fees, including, sales tax, use tax, and VAT with respect to any Services, be required, Highgate may indicate such on an invoice to be paid by Customer.2.7 Highgate reserves the right to suspend or terminate Customer’s access to or use of the Services in the event any invoice remains unpaid when due.2.8 Customer acknowledges and agrees that the Services depend on data or services made available and provided by third parties, including but not limited to Salesforce, and Highgate is not responsible for the quality, accuracy, or availability of such third-party data or services. Customer further acknowledges and agrees that Highgate requires access to Customer’s data from Salesforce (the “Customer Data”) to provide the Services. Customer hereby agrees to promptly provide Highgate with access to Customer Data and hereby grants to Highgate a nonexclusive, irrevocable, perpetual, royalty free worldwide license to access, use, transmit, copy, distribute, reproduce, edit, modify, prepare derivative works of or incorporate into other works, Customer Data to provide the Services and as otherwise expressly contemplated by the Terms. Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Customer Data, including all intellectual property rights therein.2.9 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has directly or indirectly disclosed or may disclose information that is treated as confidential by the Disclosing Party, including, without limitation, business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Highgate includes non-public information regarding pricing, features, functionality and performance of the Services. Proprietary Information of Customer includes any nonpublic information regarding sales data and activities, and other nonpublic information pertaining to its business operations and strategies provided by Customer to Highgate to enable the provision of the Services (including but not limited to Customer Data). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information no less than taken to protect is own such information, (ii) to use the Disclosing Party’s Proprietary Information only for the purposes of performing its obligations under the Customer Agreement or, in the case of Customer, to make use of the Services, or in the case of Highgate, in performing Services, (iii) to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Disclosing Party’s Proprietary Information, and (iv) not to use (except in performance or use of the Services or as otherwise expressly permitted herein) or divulge to any third person any such Proprietary Information without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Disclosing Party’s Proprietary Information to its officers, employees, consultants and legal advisors, and in the case of Highgate to subcontractors, who have a “need to know”, who have been apprised of this restriction and who are themselves bound by obligations at least as restrictive as those set forth in this Section (all such individuals and entities to which Proprietary Information is disclosed, “Authorized Persons”), and (v) to be fully responsible for any breach of confidentiality caused by any of its Authorized Persons. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of the Receiving Party, or (b) was rightfully in its possession or known by it without restriction on use or disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information, or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law or court order (but in such case, such disclosed information remains subject to the terms of this Section for all other purposes). If the Receiving Party becomes legally compelled to disclose any Proprietary Information, the Receiving Party shall provide: (1) to the extent permitted under the law, prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by law to disclose any Proprietary Information, the Receiving Party shall disclose no more than that portion of the Proprietary Information which, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Proprietary Information will be afforded confidential treatment. The confidentiality obligations of this Section shall have priority over those in any separate written confidentiality agreement signed by the Parties. The existence of a Customer Agreement between the Parties shall not be deemed Proprietary Information but the terms of such Customer Agreement shall be deemed Proprietary Information.

3. Your Obligations on Use of our Website and Services

You will comply with all applicable laws in your use of the Website and Services and will not use the Website or Services for any unlawful purpose; You will not access or use the Website or Services to collect any market research for a competing business or to create or develop a competing product, service, website or business (or one having the same or similar features or functionality); You will not, directly or indirectly, decompile, reverse engineer, or disassemble or otherwise attempt to discover the object code, source code, or underlying structures, ideas, know-how, or algorithms relevant to the Website, Services, or any software or other products or processes accessible through the Website or Services; You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Website or Services; You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Website or Services, directly or indirectly; You will not use, frame, or utilize framing techniques to enclose any Highgate’ trademark, logo, or other proprietary information (including the visualizations or images found on the Website or Services, the content of any text, or the layout/design of any page or form contained on a page) without Highgate’s express written consent; You will not use meta tags or any other “hidden text” utilizing a Highgate name, trademark, or product name without Highgate’s express written consent; You will not use or provide the Services for timesharing, application service provider, or service bureau purposes or otherwise for the benefit of a third party; You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure or exceed or abuse the number of authorized users for Services; You will not cause the Services or any of our software to become subject to the terms of any open source license agreement; You will not interfere with or attempt to interrupt the proper operation of the Website or Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Website or Services through hacking, password or data mining, or any other means or engage in any conduct that restricts or inhibits Highgate’s use of its platforms, products, or systems, including but not limited to the Services; You will not violate the security of, including by using any device, software or routine that interferes with the proper functioning of, any system, platform, software, database, or technology of Highgate, including but not limited to the Services; or use the Website or Services in any way or for any purpose except as expressly provided hereunder. We reserve the right, in our sole and absolute discretion, to deny you access to the Website or Services, or any portion of the Website or Services, without notice, and to remove any comments or prohibit any uses, that do not comply with these guidelines or otherwise present legitimate risks to Highgate, its employees, agents, licensors, other users, products, or services.

4. Intellectual Property

4.1 Highgate owns and retain all right, title and interest in and to (a) the Website and the Services, all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology used or developed in connection with Services or support; (c) all new data or information generated by Highgate through analysis or other processing of any user data or Customer Data, including but not limited to all results, output, graphs, charts, tables, information, screenshots, reports, designs, templates, or other visualizations generated by Highgate (the “Derived Data”), and (d) all intellectual property rights related to any of the foregoing. Provided Customer is not in material breach of the Customer Agreement or the Terms, and subject to their respective terms, Highgate hereby grants to Customer a perpetual, worldwide, nonexclusive, non-transferrable (except to permitted assigns) license (without right to sublicense) to use, copy, and modify Derived Data that is presented or displayed on the Services (and specifically excluding any unpresented, undisplayed or underlying Derived Data) for its own internal business purposes only. Customer shall retain any and all Highgate’s copyright, confidentiality, or other proprietary notice legends or notices all such Derived Data and Customer shall not resell, distribute, publish, sub-license, or otherwise provide to third parties any such Derived Data without the prior written consent of Highgate. All Derived Data shall be deemed Proprietary Information of Highgate.4.2 Your use of the Website or Services (including Derived Data) does not transfer from Highgate to you any Highgate intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Highgate. The Highgate logo, and all other trademarks, service marks, graphics and logos used in connection with Highgate or the Website and Services are trademarks of Highgate or its licensors. Other trademarks, service marks, graphics and logos used in connection with the Website and Services may be the trademarks of other third parties. Your use of the Website and Services grants you no right or license to reproduce or otherwise use any Highgate or third-party trademarks. You shall not resell, distribute, publish, sub-license, or otherwise provide to third parties any of our content or any portion of the Website or Services (including Derived Data) without the prior written consent of Highgate. You shall not delete or modify any of Highgate’s or any of its licensors’ or service providers’ copyright notices, trademarks, or restrictive or ownership legends on or in any of the content or Website or Services and shall reproduce such notices, trademarks, or legends on all copies permitted under these Terms.4.3 All improvements, updates, modifications and enhancements relating to or concerning the Website or Services (collectively, the “Revisions”), whether made, created, or developed by Highgate or you, and, whether or not conceived or made under these Terms or in the course of, or as a result of, your use hereunder or access to the Website or Services, shall be the sole and exclusive property of Highgate. You acknowledge and expressly agree that you do not retain any right, title or interest in any contribution in the form of (i) services, suggestions, ideas, reports, identification of defects or deficiencies, expenditures, or other feedback to the Website or Services or any part thereof (collectively, the “Feedback”), or (ii) Revisions, nor do Feedback or Revisions give or grant you any right, title or interest in the Website or Services, or any Highgate intellectual property. You further agree to allow Highgate to incorporate into any commercial or other product any Revisions or Feedback of any kind, without compensation and you hereby assign to Highgate any and all right, title, and interests (including, but not limited to, any copyright, patent, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you may have in and to any and all Revisions and/or Feedback. To the extent that such rights are not assignable or assigned, you hereby waive and agree to waive such rights. Upon request by Highgate, you will execute any document, registration, or filing required to give effect to the foregoing provisions at Highgate’s expense.4.4 Notwithstanding anything to the contrary in these Terms, Highgate shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Website and Services, and related systems and technologies (including, without limitation, information concerning Customer Data and Derived Data), and Highgate will be free at any time to (i) use such information and data to improve and enhance the Website and Services and for other development, diagnostic and corrective purposes in connection with the Website or Services and other Highgate products or offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

‍5. External Sites

The Website and Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations or covenants regarding the content or accuracy of materials or information on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk. Customer acknowledges and agrees that the Services are hosted on AWS systems and utilize AWS tools and services, and as such, Customer may be required to consent or agree to AWS terms and conditions of use, privacy and security policies, and other applicable policies to access or receive the Services through AWS systems. Highgate is not liable or responsible for AWS systems or AWS terms or policies.

‍6. Termination of Website Use and Customer Agreements

6.1 Highgate reserves the right, in our sole discretion, to restrict, suspend, discontinue, or terminate your access to all or use of any part of the Website, at any time and for any reason without prior notice or liability.

6.2 Highgate may terminate a Customer Agreement immediately upon notice to Customer if: (i) any charges to Customer remain unpaid for a period of fourteen (14) days from the due date; or (ii) if Customer materially breaches any of the terms or conditions of its Customer Agreement or Terms and fails to cure such breach within thirty (30) days following written notice thereof. A Customer may terminate a Customer Agreement for cause upon thirty (30) days written notice to Highgate of a material breach by Highgate of a Customer Agreement or the Terms if such breach remains uncured at the expiration of such period.

6.3 In the event of expiration or termination of a Customer Agreement, Customer acknowledges that it shall remain obligated to pay all amounts due thereunder and that Highgate shall have all remedies available to it in law or equity. Upon expiration or termination of a Customer Agreement for any reason, Highgate shall terminate Customer’s access to the Services and Customer shall cease all further use of any and all Services. Notwithstanding the foregoing, upon any termination of a Customer Agreement for cause by Customer (as set forth in Section 6.2), Highgate will refund Customer any prepaid fees covering the remainder of the applicable Term of the subscription period after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Highgate for the period prior to the effective date of termination.

‍7. No Warranties and Limitation of Liability

YOU ACKNOWLEDGE THAT ALTHOUGH THE WEBSITE AND SERVICES CAN BE USED AS TOOLS OR AIDS TO MAKE INFORMED DECISIONS, THE WEBSITE AND SERVICES AND THE CONTENT CONTAINED THEREIN ARE SOLELY EDUCATIONAL AND INFORMATIONAL IN NATURE AND ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL, FINANCIAL, TECHNICAL OR BUSINESS ADVICE OR EXERCISE OF YOUR OWN JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT YOUR SOLE DISCRETION AND ELECTION AND RISK. THE WEBSITE AND SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE WEBSITE AND SERVICES WILL OPERATE ERROR-FREE OR THAT THE WEBSITE AND SERVICES, ITS SERVERS, OR CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES OR AS TO THE QUALITY OR RELIABILITY OF RESULTS GENERATED THROUGH USE OF THE WEBSITE OR SERVICES. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE AND SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE AND SERVICES SHALL BE LIMITED TO THE GREATER OF THE TOTAL FEES ACTUALLY PAID BY YOU TO HIGHGATE IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM, OR ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

8. Your Representations

You represent and warrant that (i) your use of the Website or Services will be in strict accordance with Highgate’s Privacy Policy, with the Terms, your Customer Agreement (as applicable) and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website and Services (and any data or materials provided by you to Highgate or uploaded or transmitted by you to or through the Website and Services or with your permission to enable the provision of the Website or Services) will not infringe or misappropriate the intellectual property rights of any third party.

‍9. Indemnification

You agree to defend, indemnify, and hold Highgate and our licensors, and our and their officers, directors, employees, successors, licensees and assigns harmless from and against any claims, actions, damages, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of the Terms or your Customer Agreement; (ii) your misuse of the Website or Services or violation of any applicable laws or regulations; (iii) your violation of any third-party right, including without limitation any copyright, trademark, intellectual property, or privacy right; or (iv) Highgate’s access to or use of your Customer Data to provide the Services as authorized by a Customer as contemplated by Section 2.8.

‍10. Binding Arbitration

In the event of a dispute arising under or relating to the Terms or your Customer Agreement (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in New York County, New York. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Highgate from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Highgate’s proprietary interests.

11. Class Action Waiver

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS CUSTOMER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

12. No Warranties and Limitation of Liability

YOU ACKNOWLEDGE THAT ALTHOUGH THE WEBSITE AND SERVICES CAN BE USED AS TOOLS OR AIDS TO MAKE INFORMED DECISIONS, THE WEBSITE AND SERVICES AND THE CONTENT CONTAINED THEREIN ARE SOLELY EDUCATIONAL AND INFORMATIONAL IN NATURE AND ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL, FINANCIAL, TECHNICAL OR BUSINESS ADVICE OR EXERCISE OF YOUR OWN JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT YOUR SOLE DISCRETION AND ELECTION AND RISK. THE WEBSITE AND SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE WEBSITE AND SERVICES WILL OPERATE ERROR-FREE OR THAT THE WEBSITE AND SERVICES, ITS SERVERS, OR CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES OR AS TO THE QUALITY OR RELIABILITY OF RESULTS GENERATED THROUGH USE OF THE WEBSITE OR SERVICES. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE AND SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE AND SERVICES SHALL BE LIMITED TO THE GREATER OF THE TOTAL FEES ACTUALLY PAID BY YOU TO HIGHGATE IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM, OR ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

‍13. Compliance with Data Laws

You shall ensure that any content or data uploaded, transmitted, or provided by you complies with all Applicable Law relating to the privacy of third parties or the protection of their personal data promulgated by any governmental, municipal, or legal authority having jurisdiction over you or such content or data.

‍14. Changes

Highgate reserves the right, at its sole discretion, to modify or replace any part of these Terms at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of or access to the Website or Services following the posting of any changes to these Terms constitutes acceptance of those changes as first noted above. Highgate may also, in the future, offer new services and/or features through the Website or Services (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of these Terms. A Customer Agreement may only be amended or modified with the written agreement of both Customer and Highgate.

‍15. Miscellaneous

Highgate reserves the right, at its sole discretion, to modify or replace any part of these Terms at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of or access to the Website or Services following the posting of any changes to these Terms constitutes acceptance of those changes as first noted above. Highgate may also, in the future, offer new services and/or features through the Website or Services (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of these Terms. A Customer Agreement may only be amended or modified with the written agreement of both Customer and Highgate.