Master Subscription Agreement

This Agreement is effective as of May 1, 2025 for all customers with a new or renewal Order beginning on or after that date. If the customer has a separate Agreement with Flosum for the use of Flosum Services, then this Agreement does not apply to the customer.

THIS AGREEMENT GOVERNS CUSTOMER ACQUISITION AND USE OF FLOSUM SERVICES.

BY ACCEPTING FLOSUM SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS TO HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT FLOSUM SERVICES.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

“Affiliate,” means any entity, that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such. Customer shall notify Flosum in writing of the identity of its Affiliates and shall be jointly and severally liable for such Affiliate’s performance of its obligations under this Agreement. Notwithstanding the foregoing, Affiliates of Customer are limited to legal entities that are under common control with Customer.

“Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Customer Data" means all electronic data or information loaded, stored on, submitted, or transmitted through by Customer as part of its use of Purchased Services. 

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Non-Flosum Applications” means online applications and services and offline software products that are provided by entities or individuals other than us, and that interoperate with the Services, including but not limited to those provided by salesforce.com (“SFDC”).

“Order Forms” (or simply, “Order”) means the documents for placing orders hereunder that are entered into between Customer and Flosum or any of our respective Affiliates from time to time, including addenda and supplements thereto.  By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.  Order Forms shall be deemed incorporated herein by reference.

"Purchased Services" means Services provided by Flosum that Customer may purchase as set forth in an Order Form, as distinguished from those provided pursuant to a free trial.

“Services” means the products and services that are ordered by Customer under an Order Form and made available by Flosum online via the Customer login link at www.Flosum.com and/or other web pages designated  by Flosum, including associated  offline components,  as described  in the User Guide. “Services” exclude Non-FLOSUM Applications.

“Subscription Term” means the period for which a Service is agreed as specified in the Order Form.

“User Guide” means the online videos, blog posts and other documentation for the Services, accessible via www.Flosum.com, as updated from time to time.

“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by Customer (or by Flosum at Customer request).  Users may include but are not limited to Customer’s employees, consultants, contractors and agents, and third parties with which Customer transact business.

2. SERVICES

2.1 Provision of Purchased Services

Flosum shall make the Purchased Services available to Customer pursuant to this Agreement and the applicable Order Forms during each Subscription Term. Customer agrees that Customer purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Flosum regarding future functionality or features.

2.2 User Subscriptions

All Flosum products and Customer managed deployments and are provided on a subscription basis. Unless otherwise specified in the applicable Order Form, (i) Purchased Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Purchased Services. For the avoidance of doubt, all User subscriptions shall be coterminous with the Subscription Term no matter when a User subscription is added during a term.

2.3 Flosum Responsibilities

Flosum provides its Services through three distinct delivery platforms: (i) native Salesforce platform services, (ii) Flosum-hosted services, and (iii) customer-hosted deployments.

• For Salesforce-native Services, the Services are built on and hosted within the Salesforce ("SFDC") platform. The latest platform status for Salesforce-native Services is available at trust.salesforce.com. Customer acknowledges that for Salesforce-native Services, Salesforce is responsible for system performance, availability and security of the underlying infrastructure.
• For Flosum-hosted Services, Flosum shall: (i) provide basic support for the Purchased Services to Customer at no additional charge, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned maintenance, and (iii) maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Flosum-hosted environments are deployed in secure public cloud infrastructure utilizing industry-standard security practices, including encryption of data in transit and at rest, role-based access controls, regular security assessments, automated threat monitoring, and comprehensive disaster recovery protocols. Flosum implements a multi-layered security approach aligned with industry best practices to protect Customer Data against unauthorized access, disclosure, alteration, and destruction. 
• For customer-hosted deployments, Customer shall be responsible for providing and maintaining the necessary infrastructure according to Flosum's specified requirements. Flosum shall provide Customer with implementation documentation and reasonable technical support during deployment. Customer acknowledges that system performance, availability and infrastructure security for customer-hosted deployments are Customer's responsibility. Flosum will provide infrastructure design guidance, security best practices, and configuration recommendations, but Customer remains solely responsible for implementing, managing, and securing their hosting environment. Flosum's responsibility is limited to the application software and does not extend to the underlying infrastructure, network security, access controls, data backups, or disaster recovery for customer-hosted deployments. Customer is advised to implement appropriate security measures commensurate with their compliance requirements and the sensitivity of the data processed by the Services.
  

Customer acknowledges that the availability and functionality of the Flosum Services and Deployments, whether Flosum-hosted or customer-hosted, is inherently dependent upon the availability and proper functioning of the Salesforce platform. Any downtime, performance issues, or unavailability of the Salesforce platform may impact the availability and performance of the Flosum Services and Deployments, and such impact shall not be considered a breach of this Agreement by Flosum.

Accepting this Agreement implies that Customer is aware of, agrees to, and acknowledges the applicable maintenance and release schedules for each delivery platform through which Customer accesses the Services.

2.4 Protection of Customer Data

Flosum provides its Services through three distinct delivery platforms: (i) native Salesforce platform services, (ii) Flosum-hosted services, and (iii) customer-hosted deployments.

• For Salesforce-native Services, Customer acknowledges and agrees that Customer Data may be hosted and stored by SFDC. Flosum does not have access to any Customer Data. Flosum cannot modify or disclose Customer Data to any organization or individual.
• For Flosum-hosted Services, Customer acknowledges and agrees that Customer Data may be hosted and stored by Public Cloud infrastructure and SFDC. Regardless of the infrastructure, Flosum does not have access to any Customer Data. Flosum cannot modify or disclose Customer Data to any organization or individual.‍
• ‍For customer-hosted deployments, Customer acknowledges and agrees that Customer Data may be hosted and stored by the customer’s infrastructure and SFDC. Regardless of the infrastructure, Flosum does not have access to any Customer Data. Flosum cannot modify or disclose Customer Data to any organization or individual.

2.5 Customer Responsibilities

Customer shall: (i) be responsible for its Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired said Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Flosum promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than its Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

3. FEES AND PAYMENT FOR PURCHASED SERVICES

3.1 User Fees

Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.

3.2 Invoicing and Payment

Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due before the service start date. Customer is responsible for providing complete and accurate billing and contact information to Flosum and notifying Flosum of any changes to such information

3.3 Overdue Charges

Any amount due for a renewal or otherwise and not received by Flosum by the due date, then at the discretion of Flosum may be, (a) subject to finance charges equal to 1.5% of the unpaid balance per month or in any case the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid, and/or (b) Flosum may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above. Notwithstanding anything to the contrary contained herein, Flosum reserves the right to suspend Customer’s access to or use of the Services in the event any payment is due but not paid within thirty (30) days of its due date. Customer agrees that Flosum will not be liable to Customer, any Affiliate or any third party for any suspension under this Section 3.3.

3.4 Suspension of Service

If any charge owed by Customer is thirty (30) days or more overdue, Flosum may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided Flosum has given Customer ten (10) or more days’ prior notice that Customers account is overdue in accordance with the “Notices” section below.

4. PROPRIETARY RIGHTS

4.1 Reservation of Rights in Services

Service Provider shall retain all right, title, and interest in and to the Services, Purchased Services, tools, concepts, proprietary ideas, know-how, methodologies, software, source code, documentation, and other trade secrets and intellectual capital related to or comprising the Purchased Services or otherwise used by Flosum in the course of performing the Services hereunder (“Service Provider Materials”). In addition to the Services, Purchased Services and other Service Provider Materials, additional Service Provider Materials relevant to the Order shall be identified as such within the applicable Order Form. No rights are granted to Customer hereunder other than as expressly set forth herein. For the avoidance of doubt, Flosum retains all intellectual property rights related to any agreement or Order Form between the Parties.

4.2 Restrictions

Customer shall not (i) permit any third party to access the Services except as permitted herein or in an applicable Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customers own intranets or otherwise for its own internal business purposes to the extend allowable as per the Agreement, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions, likeness or graphics of the Services.

4.3 Customer Applications and Code

Customer, a third party acting on behalf of Customer, or a User may create applications or program code using the Services as permitted. In such cases, Customer authorizes Flosum and Flosum’s service providers to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Flosum to provide the Services in accordance with this Agreement. Subject to the above, Flosum acquires no right, title or interest from Customer or Customers licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

‍4.4 Feedback

Flosum shall be entitled to use any feedback or suggestion it receives from Customer that are specific to the Services (“Feedback”) for the purpose of optimizing, improving, enhancing or creating derivative products; and shall have no obligation to compensate Customer and shall not identify Customer as the source of such Feedback. All Feedback and derivatives thereto, including any materials or products developed by Flosum from the same, shall be owned by Flosum, excluding any Customer property that may be included in the Feedback; and Customer shall and hereby does, assign all of Customer’s right, title, and interest in and to such Feedback to Flosum. 

Flosum shall retain a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other Feedback provided by Customer, including Users, relating to the operation of the Services.

5. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

5.1 Flosum Warranties

Flosum represents and warrants that as of the date this Agreement is executed, (i) have validly entered into this Agreement and have the legal power to do so, (ii) the Purchased Services shall perform materially in accordance with the User Guide, and (iii) the Purchased Services will not transmit Malicious Code to Customer, provided it is not a breach of this subpart (iv) if Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code.

5.2 General Warranties of the Parties.  

Each party hereby represents and warrants to the other that (a) it has all requisite power and authority (corporate and otherwise) to enter into and perform its obligations under this Agreement (b) the individual executing this Agreement is authorized to do so; (c) its execution and delivery of this Agreement does not and will not conflict with or result in a breach of or a default under its respective organizational instruments or any Agreement, instrument, order, or Law applicable to it or by which it may be bound; and (d) this Agreement has been duly and validly executed and delivered by it and constitutes its valid and legally binding obligation, enforceable with its terms, except as enforcement may be limited by Laws of bankruptcy or insolvency or other Laws of general application relating to or affecting the enforcement of creditor’s rights and except as enforcement is subject to general equitable principles.

5.3 Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

6. LIMITATION OF LIABILITY

6.1 Limitation of Liability

EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS, CLAIMS OF FRAUD AND INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THE FOREGOING LIMIT SHALL NOT APPLY  TO CUSTOMER PAYMENT  OBLIGATIONS  UNDER  THE “FEES AND PAYMENT FOR PURCHASED SERVICES” SECTION ABOVE.

6.2 Exclusion of Consequential and Related Damages

EXCEPT FOR BREACH OF CONFIDENTIALITY OBLIGATIONS AND INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7. TERM AND TERMINATION

7.1 Term of Agreement

This Agreement commences on the Effective Date mentioned on the Order Form and continues until all User subscriptions granted in accordance with this Agreement have expired or have been terminated.

7.2 Term of User Subscriptions

User subscriptions for Purchased Services commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein. Each Order Form may have its own service period, provided that such service period does not exceed the term as the case may be. The termination of any individual Order shall not result in the termination of any other Order or this Agreement unless the parties expressly state otherwise; however, termination of this Agreement shall automatically result in the termination of all Orders then in effect.

7.3 Renewal

Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods of twelve (12) months each, unless either party gives the other notice of non-renewal at least ninety (90) days before the end of the relevant Subscription Term.

7.4 Return of Customer Data

Flosum provides its Services through three distinct delivery platforms: (i) native Salesforce platform services, (ii) Flosum-hosted services, and (iii) customer-hosted deployments.

• For Salesforce-native Services, Flosum does not have access to Customer Data. Customer is responsible for exporting their data from Salesforce in a format suitable for Customers organization. Because Flosum does not have any access to Customer Data, Flosum shall have no obligation to maintain or provide any Customer Data.
• For Flosum-hosted Services, Flosum does not have access to Customer Data. Customer is responsible for exporting their data from Flosum-hosted Services in a format suitable for Customers organization. Because Flosum does not have any access to Customer Data, Flosum shall have no obligation to maintain or provide any Customer Data.
• For customer-hosted Deployments, Flosum does not have access to Customer Data. Customer is responsible for exporting their data from the customer-hosted Deployment in a format suitable for Customers organization. Because Flosum does not have any access to Customer Data, Flosum shall have no obligation to maintain or provide any Customer Data.

7.5 Surviving Provisions

The sections titled “Fees and Payment for Purchased Services,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Return of Customer Data,” “Surviving Provisions,” “Notices, Governing Law and Arbitration,” and “General Provisions” shall survive any termination or expiration of this Agreement.

8. NOTICES, GOVERNING LAW AND ARBITRATION

8.1 General

Who Customer is contracting with under this Agreement, who Customer should direct notices to under this Agreement, what law will apply in any dispute arising out of or in connection with this Agreement, and where and how such disputes will be resolved, depends on where Customer is domiciled.

Customer is contracting with: Flosum Corporation

Notices should be addressed to: + (844) 3-FLOSUM | Email: notices@flosum.com

The governing law is: California and controlling United States federal law

Disputes will be resolved by: California and Binding arbitration in San Francisco, California, U.S.A. as set forth in Section 8.4

8.2 Manner of Giving Notice

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to Customer shall be addressed to the system administrator designated by the Customer for the relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Customer. Notices to Flosum shall be addressed as set forth in Section 8.1 above.

8.3 Agreement to Governing Law

Each party agrees to the applicable governing law set forth in Section 8.1 above without regard to choice or conflicts of law rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.

8.4 Arbitration for Customers Domiciled in Americas

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by confidential and binding arbitration in San Francisco, CA, before a single arbitrator. The language to be used in the arbitral proceedings shall be English. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties agree to keep all disputes arising under this Agreement confidential, except as necessary in connection with a judicial challenge to or enforcement of an award or unless otherwise required by law or judicial decision. The arbitrator may issue orders to treat any information regarding such proceedings, including the award, as Confidential Information under this Agreement. This Section shall not preclude either party from seeking equitable relief to protect its interests, including but not limited to injunctive relief, from a court of appropriate jurisdiction. The prevailing party in any action arising from or relating to this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs including, without limitation, arbitration fees and fees of experts

9. GENERAL PROVISIONS

9.1 Assignment

Neither Party may assign or transfer any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. A Party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning Party’s election, termination of this Agreement upon written notice to the assigning Party.

9.2 Entire Agreement

This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in the purchase order or in any other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

10. MUTUAL INDEMNIFICATION

10.1 Infringement by Flosum Services or Deliverables

Except as excluded below in this subparagraph, Flosum, at its expense, defend, and will indemnify and hold harmless Customer, from and against any amounts payable (including costs, expenses or liability, including reasonable attorney’s fees and costs, related to an allegation) resulting from, a third-party claim or suit, to the extent such third-party claim or suit alleges that Customers’ proper use of any Flosum materials, Purchased Services, Services, documentation, or deliverables (each an Item and collectively, Items) infringes a patent, copyright, or trademark, or misappropriates a trade secret or other intellectual property right; provided, that, Flosum will not be obligated to indemnify Customer to the extent that the alleged infringement is caused by (i) Customer’s modification to an Item other than by or specifically at the direction of Flosum, or (ii) combination of such Item with any item not provided by Flosum.

10.2 Flosum Obligations

If any Item is held to constitute an infringement or misappropriation, or if in Flosum’s opinion, such Item is, or is likely to be held to constitute, an infringement or misappropriation, Flosum will, at its expense and option: (a) procure the right for Customer to continue using such Item; (b) replace such Item so it is non-infringing and non-misappropriating and provides substantially equivalent functionality as that provided by the infringing Item; or (c) modify such Item so that it is non-infringing and non-misappropriating while maintaining the required functionality, without breaching warranties under “SFDC Warranties” above, and meeting all relevant service specifications under the Order Form. If none of these options can be accomplished in a reasonable time or are not commercially feasible, Flosum shall terminate Customers subscription for that Service upon 30 days’ written notice and issue a refund to Customer of all applicable fees paid for the infringing or misappropriated Item, for the period of time during which Customer was unable to use such Item, as well as for the remaining Term if Customer has issued a pre-payment. Thereafter, all of Customer’s rights in and to the applicable Item subject to the refund, shall terminate.

10.3 Procedure

To receive the foregoing indemnities, the Indemnitee must (a) promptly notify the Indemnitor in writing of a claim or suit and provide reasonable cooperation (at the Indemnitor’s expense, other than the value of employee time), provided, that, late notice shall only relieve the Indemnitor of its obligations to the extent that the failure to receive prompt notice prejudices its position; (b) provide Indemnitor all reasonable assistance, at Indemnitors expense; and (b) tender to the Indemnitor full authority to defend or settle the claim or suit; provided, that, as a condition to the Indemnitor’s entitlement to control the defense of any claim, the Indemnitor must acknowledge in writing to the Indemnitee the right of the Indemnitee to an indemnity pursuant hereto and the Indemnitor’s obligation to use all commercially reasonable efforts to defend the claim as required hereunder. Neither party has any obligation to indemnify the other party in connection with a settlement made without the Indemnitor’s written consent. The Indemnitor may not settle such claim or suit without the consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. The Indemnitee has the right to participate at its own expense in the claim or suit and in selecting counsel therefor.

10.4 Other Claims

Each Party (Indemnitor) will, at its expense, defend, and will indemnify and hold harmless the other Party (Indemnitee) from and against any amounts payable (including costs, expenses or liability, including reasonable attorney’s fees and costs, related to an allegation) resulting from, any third- party claim or suit, to the extent such third-party claim or suit alleges (a) bodily injury or tangible property damage caused by Indemnitor or its employees; (b) Flosum’s failure to comply with the Laws applicable to the Purchased Services; or (c) either Party’s fraud, gross negligence or willful misconduct.

10.5 Exclusive Remedy

This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.

11. CONFIDENTIALITY

11.1 Definition of Confidential Information 

“Confidential Information” (or (“CI) means all non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data; Flosum Confidential Information includes the Services and content, pricing information, RFP responses, audit reports, satisfaction surveys and information related to business planning and operations; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

11.2 Limits on Use; Nondisclosure

The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Flosum may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-SFDC Application Provider to the extent necessary to perform obligations to the Customer under this Agreement, to the extent commercially feasible, Flosum will require each subcontractor to be bound by confidentially provisions comparable to those set forth in this Agreement.

11.3 Restrictions 

Unless otherwise required by applicable law, the parties shall not make each other’s Confidential Information available in any form to any third party (except third parties who are Users and have a “need to know” the Confidential Information) or use each other’s Confidential Information for any purpose other than as authorized under this Agreement. Each party shall take all commercially reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information by the Receiving Party, and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use. Except as expressly stated in this Agreement, no license or intellectual property right to Confidential Information is granted due to the disclosure by either Party to the other Party, and each party retains ownership of its Confidential Information. The parties shall hold each other’s Confidential Information in confidence after any termination of this Agreement.

11.4 Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

11.5 Construction

Each Party agrees that it has reviewed the Agreement, and the Agreement shall not be interpreted more strictly against the drafting Party. The Section headings and captions are for convenience only and will not be used to construe the Agreement. If any provision of the Agreement is determined by a court to be invalid, illegal or unenforceable, it will not affect the validity, legality, or enforceability of the other part(s) of the same provision or of the other provisions in the Agreement.