Cornerstone Index Subscriber Agreement

This Cornerstone Index Subscriber Agreement, including, without limitation, the Orders (as defined below) entered into hereunder and the terms incorporated by referenced herein (this “Agreement”), governs access to and use of the Cornerstone Index Products (as defined below) offered by Cornerstone Information Systems, Inc (“Cornerstone”). Any individual accepting this Agreement on behalf of an entity or other organization represents and warrants they have the authority to bind such entity or organization to this Agreement. As used in this Agreement, “Subscriber” means the applicable individual user and, if applicable, the entity or organization on whose behalf such individual user is using the Cornerstone Index Products. Subscriber and Cornerstone each is a “Party” and together are the “Parties” hereto.

Please read these terms carefully. By indicating acceptance of this Agreement via click-through or other electronic means offered by Cornerstone and/or by using the Cornerstone Index Products, Subscriber is entering into a legal agreement with Cornerstone and agrees to be bound by the terms and conditions of this Agreement as of such applicable date of acceptance (the “Effective Date”). IF SUBSCRIBER DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, SUBSCRIBER IS NOT PERMITTED TO USE THE CORNERSTONE INDEX PRODUCTS.

1. Cornerstone Responsibilities

1.1 Cornerstone Index Products

As used herein, “Cornerstone Index Products” means (i) Cornerstone’s proprietary Cornerstone Index platform (the “Platform”), (ii) each of Cornerstone’s products available via the Platform on a subscription basis (each, a “Subscription”), including the content made available via any such Subscription (“Subscription Content”) and (iii) the Cornerstone analyses and reports made available for export, download, and/or email delivery via the Platform, whether as part of a Subscription or otherwise (the “Reports”). The specific Subscriptions and Reports made available by Cornerstone to Subscriber (as defined below) will be in accordance with the licenses purchased by Subscriber via the Platform (each such purchased license, an “Order”).

1.2 Access to Products

Subject to Subscriber’s compliance with this Agreement, Cornerstone will use commercially reasonable efforts to (i) make the Platform available to Subscriber for the Term of this Agreement (as defined in Section 3), (ii) make the Subscriptions licensed by Subscriber (including the associated Subscription Content) available to Subscriber during the subscription period set forth in each applicable Order (each, a “Subscription Period”), and (iii) make the Reports licensed by Subscriber, whether as a one-time download Order or as part of a Subscription, available to Subscriber, whether via export, download, or delivery via email.

1.3 License to Reports

Subject to Subscriber’s compliance with this Agreement, Cornerstone grants to Subscriber a fully paid-up, non-transferable, perpetual non-sublicensable right and license to use and copy the Reports for which Subscribers has purchased a license, whether as a one-time download or as part of a Subscription, solely for Subscriber’s internal business purposes; provided, that Subscriber replicate all copyright and other proprietary rights notices contained in the original copy of the Report in any copies made thereof by Subscriber for Subscriber’s internal use. The Reports and all copies thereof constitute protected copyrighted and property material owned solely and exclusively by Cornerstone.

1.4 Changes and Updates

From time-to-time during the Term, Cornerstone may change or update the features, functionality or other aspects of the Cornerstone Index Products, including to reflect changes in technology, industry practices, patterns of system use, and availability of third-party software or other dependent items. Cornerstone will use reasonable efforts to provide notice to Subscriber in advance of any material changes or updates to the Cornerstone Index Products. Cornerstone will make available to Subscriber any updates or improvements to the Subscriptions that Subscriber is currently subscribed to that Cornerstone makes generally available to its other subscribers of the same Subscriptions.

1.5 Availability

Cornerstone will use commercially reasonable efforts to make the Platform and Subscriptions available 24 hours a day, 7 days a except for temporary downtime or disruptions that may occur at Cornerstone’s sole option and discretion. Cornerstone will have no liability for any downtime or disruption resulting from any system or technology not in Cornerstone’s control, including without limitation any problem associated with the Internet, a telecommunications service provider, applications, equipment or facilities hosted off Cornerstone’s premises, or any third-party interface that the Cornerstone Index Products rely upon. Subscriber acknowledges that such temporary downtime or disruptions may occur.

1.6 Use of Subscriber Data

To the extent that Subscriber submits or uploads any of Subscriber’s data to the Platform (all such data, “Subscriber Data”), Cornerstone will process such Subscriber Data solely in accordance with this Agreement.

1.7 Safeguards

During the Term, Cornerstone will maintain reasonable administrative, physical and technical safeguards designed to protect Subscriber Data, consistent with any law or regulation applicable to Cornerstone and its performance of this Agreement and consistent with Cornerstone’s then-current practices and procedures. Cornerstone will promptly report to Subscriber any compromise of security that it becomes aware of with regard to Subscriber Data.

2. Subscriber Responsibilities

2.1 Credentials; Accounts

Subscriber may be required to create an account (each, a “Subscriber Account”) to access certain Cornerstone Index Products, including, without limitation, certain Subscriptions. Each Subscriber Account authorizes a single individual to access the Platform and use the applicable Cornerstone Index Products. Subscriber Accounts may not be shared with any other individual(s), and each Subscriber Account may be used on only one machine at a time. Subscriber is solely responsible for maintaining the confidentiality of all passwords or other credentials for their Subscriber Account, and for all activities that occur under such Subscriber Account, including, without limitation, all Orders submitted via such Subscriber Account. Subscriber will notify Cornerstone immediately of any unauthorized use that comes to Subscriber’s attention and will take all steps necessary to remediate such issue. Cornerstone may revoke or require Subscriber to replace Subscriber Account passwords or other credentials in Cornerstone’s discretion.

2.2 Use of the Cornerstone Index Products

Subscriber will use all licensed Cornerstone Index Products solely in accordance with the terms and conditions of this Agreement, including any applicable subscription period, and/or other usage parameters for any particular Cornerstone Index Products as set forth in the applicable Order (collectively, “Approved Use”) and solely in compliance with all applicable laws. Without limiting the foregoing, Subscriber will not, and will not permit any individuals to: (i) sublicense, lease, rent, loan or otherwise transfer to any third party any rights of Subscriber hereunder; (ii) make the Cornerstone Index Products available for the benefit of any third party; (iii) attempt to circumvent any controls to limit Subscriber’s use of Cornerstone Index Products to the Approved Use, including, without limiting, attempting to download, export, scrape or otherwise save any Subscription Content, Reports, or other content made available by Cornerstone using any method other than approved download or export functionality made available by Cornerstone for such purpose; (iv) modify, adapt, alter, translate, or create derivative works from the Cornerstone Index Products; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Cornerstone Index Products; (vi) perform or disclose any benchmark or performance tests of the Cornerstone Index Products; (vii) perform or disclose any security testing of the Cornerstone Index Products or associated infrastructure; (viii) remove or modify any program markings or any notice of Cornerstone’s or its licensors’ proprietary rights; or (ix) use any unauthorized automated process or service to access and/or use the Cornerstone Index Products. Notwithstanding any other provision to the contrary herein, at any time during or after the Term, if Subscriber uses the Reports in any manner other than as permitted in this Agreement, Subscriber’s license to the Reports will automatically terminate with immediate effect, and Subscriber must immediately: (1) stop using the Reports; and (2) destroy all copies of the Reports in Subscriber’s possession or control and permanently erase all electronic copies of the Reports.

2.3 Responsibility for Subscriber Data

Subscriber hereby grants Cornerstone the right to use, process and transmit all Subscriber Data as set forth in this Agreement. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Subscriber Data and, without limiting the foregoing, will not provide to Cornerstone any Subscriber Data that may violate applicable laws, including without limitation, any Subscriber Data that may menace or harass any person, cause damage or injury to any person or property, or violate the privacy rights or other rights of any individual. Subscriber is solely responsible for (i) ensuring that Subscriber has all necessary rights to collect, use, and share all Subscriber Data with Cornerstone as described herein, and (ii) providing any necessary notices or disclosures, and/or obtaining any necessary consents, regarding the foregoing and/or Subscriber’s use of the Cornerstone Index Products.

2.4 Content; Decisions

All content and information provided by Cornerstone to Subscriber, including, without limitation, all Subscription Content and all Reports made available via the Platform, is (i) for Subscriber’s general informational purposes only, (ii) is not intended to be solely relied upon by Subscriber or any other party to make or refrain from a certain course of action or decision, and (iii) do not, and are not intended to, constitute professional advice or recommendations. Subscriber acknowledges and agrees that Subscriber is solely responsible for its use of any such content or other information received from Cornerstone, Cornerstone Index Products, or otherwise, including any of its decisions, acts, or omissions in reliance thereon, and that Cornerstone will have no liability in connection therewith.

2.5 Account Suspension

Cornerstone may suspend, terminate or limit access to the Cornerstone Index Products at any time if (i) Cornerstone determines that the Cornerstone Index Products are being used by Subscriber in violation of applicable law, in an unauthorized or fraudulent manner or that Subscriber has submitted fraudulent or inaccurate information to Cornerstone, (ii) Cornerstone determines that Subscriber’s use of the Cornerstone Index Products adversely affects the Platform or service to others, (iii) Cornerstone is prohibited by an order of a court or other governmental agency from providing the Cornerstone Index Products, (iv) Subscriber fails to pay any Fees (as defined below) owed to Cornerstone hereunder within 30 days of the date on which payment is due; or (v) a security incident or other disaster that impacts the Cornerstone Index Products occurs. Any suspension or termination in accordance with the foregoing will not excuse Customer from its obligation to make payment(s) under Orders entered into pursuant to this Agreement if the suspension or termination arises from Customer’s breach of this Agreement. Cornerstone will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Subscriber’s use of the Cornerstone Index Products in accordance with this Section.

2.6 Pre-Release Materials

Subscriber may have the opportunity to receive access to certain “pre-release”, “beta” or other materials or features prior to their full commercial release (“Pre-Release Materials”), at Cornerstone’s option. Subscriber’s use of any Pre-Release Materials may be conditioned on acceptance of additional terms and, in any event, is subject to the confidentiality obligations in Section 6 below. ALL PRE-RELEASE MATERIALS ARE PROVIDED TO SUBSCRIBER “AS-IS” WITHOUT ANY WARRANTY AND CORNERSTONE SHALL HAVE NO LIABILITY FOR THE USE OF SUCH PRE-RELEASE MATERIALS, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY OF SUCH PRE-RELEASE MATERIALS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. THIS SECTION SUPERSEDES ANY CONFLICTING PROVISION OF THIS AGREEMENT.

3. Term and Termination

3.1 Term

Unless terminated earlier pursuant to any of the Agreement’s express provisions, the term of this Agreement will commence on the Effective Date and will continue until terminated by a Party hereto (“Term”).

3.2 Termination

If there are no active Orders under this Agreement, either Party may terminate this Agreement at any time, with or without cause, upon notice to other Party. If there are active Orders under this Agreement, either Party may terminate this Agreement and such active Orders upon written notice to the other Party if the other Party materially breaches this Agreement; provided, however, that: (i) if the breach is capable of being cured, the breaching Party shall be given a 30 day period from the date of written notice of the breach to cure such breach and, if the breaching fails to so cure in such period, the non-breaching Party may immediately terminate the Agreement with a second written notice to the breaching Party at the end of such 30-day period, and (ii) if the breach is incapable of being cured, then the non-breaching Party may terminate the Agreement immediately. In addition, Cornerstone may terminate this Agreement upon written notice if a Change of Control occurs at Subscriber. “Change of Control” means: (1) the approval by the equity holders of Subscriber of a sale or other disposition of all or substantially all of its assets, a reorganization, a merger or a consolidation; or (2) the acquisition by any means by an individual, partnership, corporation, limited liability company, association, joint venture, unincorporated organization or other legal entity of (A) beneficial ownership of fifty percent (50%) or more of the then-outstanding equity interests of Subscriber or (B) the ability to control the voting power of fifty percent (50%) or more of the then-outstanding voting securities of Subscriber entitled to vote generally in the election of the Board of Directors, in the case of a corporation, or the corresponding managing body, in all other cases. Subscriber shall promptly notify Cornerstone of any Change of Control.

3.3 Effect of Termination

In the event of any termination, all of Subscriber’s rights under this Agreement will immediately terminate and Subscriber will immediately cease any access or use of the Cornerstone Index Products, except with respect to any Reports so long as Subscriber’s use thereof remains in compliance with the terms of this Agreement. Termination of this Agreement will not relieve Subscriber of its obligations to pay any amounts due under active Orders. Cornerstone will not be obligated to persist any of Subscriber’s settings or any Subscriber Data following termination of this Agreement. Any provisions in this Agreement or an Order that by their nature are intended to survive, will continue to apply in accordance with their terms.

4. Fees and Payment Terms

4.1 Invoicing and Payment

Subscriber shall pay to Cornerstone the fees specified in each applicable Order entered into pursuant to this Agreement (the “Fees”) according to the terms and conditions set forth in such Order. Unless otherwise specified in the Order, all payments are due in advance. All payments will be made in US dollars. All Fees paid by Subscriber are non-refundable except as expressly set forth in this Agreement.

4.2 Subscription Renewal

The initial Subscription Period for each Subscription shall be as set forth in the applicable Order. After the initial Subscription Period, each Subscription will auto-renew for successive one-year Subscription Period(s) unless either Party gives notice of non-renewal at least 30 days prior to the expiration of the then-current Subscription Period. Cornerstone shall have the right to modify the Fees for a subsequent Subscription Period.

4.3 Credit Card on File

Cornerstone shall have the right to require that Subscriber provide credit card information to be stored on file. Subscriber hereby authorizes Cornerstone to charge the credit card in its Subscription Account for the payment of all Fees due, including, without limitation, any Fees for Subscription renewals.

4.4 Taxes

Subscriber shall pay directly or reimburse Cornerstone for any taxes arising in connection with Subscriber’s purchase and/or use and/or Cornerstone’s provision to Subscriber of the Cornerstone Index Products, excluding any taxes on Cornerstone’s income, gross revenues (other than sales, use, franchise or excise tax) or employee-related taxes. Such taxes payable will be billed as separate items on invoices or on separate invoices, which in either case will also include a reasonable description of the nature of such tax.

4.5 Audit

Cornerstone or its designee (including its accountants and auditors) reserves the right to: (i) require Subscriber to send written certification of compliance with the terms and conditions of this Agreement within 30 days of Cornerstone’s request; or (ii) upon reasonable notice, inspect and audit Subscriber’s use of the Cornerstone Index Products under this Agreement at any time during the Term or thereafter to confirm Subscriber’s compliance with the Agreement. Any audit that requires access to Subscriber’s premises will be conducted during regular business hours, on no less than 5 business days’ notice, and in a manner designed to not unreasonably interfere with Subscriber’s business operations. Subscriber will make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Cornerstone with respect to such audit. If the audit determines that Subscriber has breached the terms of this Agreement, Subscriber will reimburse Cornerstone for all reasonable costs incurred by Cornerstone in conducting the audit.

5. Proprietary Rights

5.1 Ownership by Cornerstone

Cornerstone owns and retains all right, title, and interest in and to the Cornerstone Index Products, the documentation therefore, any software or technology utilized, created or reduced to practice in the provision of the Cornerstone Index Products, and all intellectual property rights contained therein or related thereto, including without limitation all copies, translations, adaptations, modifications, derivations, updates, and enhancements thereof (the “Cornerstone IP”). Subscriber acknowledges that (i) no right or interest in the Cornerstone IP is conveyed other than the limited licenses granted herein, (ii) the Cornerstone IP is protected by copyright and other intellectual property laws, and (iii) the Cornerstone IP embodies valuable confidential and proprietary information of Cornerstone or its licensors, the development of which required the expenditure of considerable time and money. Subscriber will have no right to possess Cornerstone Index Products either in object code or source code form. Subscriber will not take or encourage any action during or after the Term that will in any way impair the rights of Cornerstone in and to the Cornerstone IP, any proprietary software or technology of Cornerstone, or any intellectual property rights in and to any of the foregoing.

5.2 Subscriber Data

Subscriber owns and retains all right, title, and interest in and to the Subscriber Data, except for the limited licenses granted herein. During the Term, Subscriber grants Cornerstone a worldwide, non-exclusive, royalty-free, sublicensable right and license to use, copy, display, store, adapt, and distribute Subscriber Data to (i) provide the Cornerstone Index Products to Subscriber, and (ii) create and improve Cornerstone products, processes and/or services.

5.3 De-identified Data and Product Analyses

Subscriber further agrees that Cornerstone has the right to (i) aggregate and/or de-identify Subscriber Data for use in providing Cornerstone’s services to its customers (once so processed, “De-identified Data”), and (ii) compile statistical and other information related to the performance, operation and use of the Cornerstone Index Products or other Cornerstone products or services by Subscriber (“Product Analyses”). Cornerstone may make De-Identified Data and/or Product Analyses available to third parties and/or publicly available; provided, however, that De-Identified Data and Product Analyses will not incorporate Subscriber Data or other Subscriber Confidential Information in a form that could serve to identify Subscriber or any individual. Cornerstone retains all intellectual property rights in De-Identified Data and Product Analyses.

5.4 Feedback

Subscriber hereby grants Cornerstone a worldwide, perpetual, irrevocable, fully paid-up, royalty-free, sublicenseable right and license to use any suggestions, enhancement requests, ideas, inventions, information, processes, know-how, techniques or other feedback provided by subscriber relating to the Cornerstone Index Products (collectively, “Feedback”), including the right to make, have made, sell, have sold, offer for sale, import, have imported and lease products and services which practice and/or embody Feedback. Cornerstone shall have no obligation to incorporate any Feedback into any products or services.

6. Confidentiality

6.1 Confidential Information

During the Term, it is anticipated that each Party will learn confidential or proprietary information about the other Party, and their respective businesses. Each Party will keep confidential and not disclose to third parties this information and any other information which it may acquire with respect to the other Party’s businesses, including, but not limited to, information developed and relating to products and services, customers, pricing, know-how, trade secrets, processes, and practices (collectively, “Confidential Information”), and shall not use any Confidential Information for its own benefit or for the benefit of any third Party, and only for the purposes of performing its obligations and/or exercising its rights under this Agreement. The parties acknowledge and agree that, as between the parties, any Subscriber Data shall be considered Subscriber’s Confidential Information and the Cornerstone Index Products shall be considered Cornerstone’s Confidential Information.

6.2 Exceptions

It is understood, however that the restrictions listed above shall not apply to any portion of the Confidential Information which: (i) was previously known to the receiving Party without obligations of confidentiality; (ii) is obtained by the receiving Party after the Effective Date of this Agreement from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to the disclosing Party with respect to such information; (iii) is or becomes part of the public domain through no fault of the receiving Party; (iv) is independently developed by the receiving Party without use of the Confidential Information; or (v) is approved for release by written authorization of the disclosing Party.

6.3 Permitted Disclosures

The receiving Party may also disclose Confidential Information (i) to its employees, agents, representatives and contractors on a “need to know” basis, provided such persons are under an obligation with the receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information, than the terms of this Section 7, and (ii) to the extent it is required to do so by administrative or judicial action, provided that the receiving Party (to the extent legally permitted) immediately after receiving notice of such action notifies the disclosing Party of such action to give it the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence.

6.4 Publicity

Subscriber grants to Cornerstone a worldwide, non-exclusive, royalty-free, sublicensable right and license to use Subscriber’s name and/or logo in Cornerstone’s marketing and sales materials, including without limitation its website(s).

7. Representations and Warranties

Each Party represents and warrants to the other that it has the necessary corporate authority to enter into this Agreement and to perform its obligations hereunder, and that it has not breached any contract with any other person or entity by entering into this Agreement.

EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7, THE CORNERSTONE INDEX PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND CORNERSTONE HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THIS AGREEMENT AND THE CORNERSTONE INDEX PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CORNERSTONE MAKES NO GUARANTEE THAT ACCESS TO OR USE OF THE CORNERSTONE INDEX PRODUCTS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, THAT ANY DATA PROVIDED BY SUBSCRIBER WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR THAT DEFECTS IN THE CORNERSTONE INDEX PRODUCTS WILL BE CORRECTED.

8. Limitation of Liability

NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT WITH RESPECT TO A PARTY’S BREACH OF SECTION 7 OR SUBSCRIBER’S INFRINGEMENT OF CORNERSTONE IP, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, EXEMPLARY OR OTHER SPECIAL DAMAGES, OR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO LOSS OF PROFIT, DATA, BUSINESS OPPORTUNITY, OR BUSINESS REPUTATION), ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY, AS A MATERIAL INDUCEMENT TO THE OTHER PARTY TO ENTER INTO THIS AGREEMENT, EXPRESSLY WAIVES ITS RIGHT TO OBTAIN ANY SUCH DAMAGES, AND AGREES NOT TO SEEK TO RECOVER ANY SUCH DAMAGES IN CONNECTION WITH ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THIS SECTION 8 BE DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL CORNERSTONE’S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY SUBSCRIBER TO CORNERSTONE IN THE TWELVE (12) MONTHS FOR THE APPLICABLE CORNERSTONE INDEX PRODUCT FROM WHICH THE CLAIM AROSE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH CORNERSTONE HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER, AS A MATERIAL INDUCEMENT TO CORNERSTONE TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, EXPRESSLY WAIVES ITS RIGHT TO OBTAIN ANY DAMAGES IN EXCESS OF SUCH AMOUNT, AND AGREES NOT TO SEEK TO RECOVER ANY SUCH EXCESS AMOUNT IN CONNECTION WITH ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE CORNERSTONE INDEX PRODUCTS, AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THIS SECTION 8 BE DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9. Indemnification

9.1 By Cornerstone

In the event that a claim is filed against Subscriber in a court of competent jurisdiction alleging that the Cornerstone Index Products infringe or misappropriate a U.S. copyright or trade secret of any person (other than Subscriber or any of its affiliates), then Cornerstone shall defend Subscriber against such claim, and shall indemnify and hold harmless Subscriber against any damages and costs that Subscriber is ordered to pay by such court as a result of such claim; provided that: (i) Subscriber promptly notifies Cornerstone of such claim; (ii) Cornerstone controls the defense or settlement of such claim; (iii) Subscriber fully cooperates with Cornerstone with respect to such defense or settlement. If, as a result of any such claim, Cornerstone and/or Subscriber is enjoined from using the Cornerstone Index Products, or if Cornerstone believes that the Cornerstone Index Products are likely to become the subject of a claim or an injunction, Cornerstone at its option and expense may (1) procure the right for Subscriber to continue to use the Cornerstone Index Products, (2) replace or modify the Cornerstone Index Products so as to make it non-infringing, or (3) terminate this Agreement and refund to Subscriber any pre-paid, unused Fees for the remaining of the applicable Subscription Period of any active Subscriptions (if any). The foregoing states Cornerstone’s entire liability, and Subscriber’s sole and exclusive remedy, with respect to infringement or misappropriation of any intellectual property arising under or in connection with this Agreement, and it is agreed that Cornerstone shall have no liability whatsoever with respect to patents.

9.2 By Subscriber

Subscriber shall hold harmless Cornerstone and its officers, successors, licensors, licensees and assigns from and indemnify them against any and all liability or loss without limitation, including reasonable attorney’s fees, which they or any of them may suffer as a result of Subscriber’s use of the Cornerstone Index Products or its breach of any the terms of this Agreement.

10. Miscellaneous

10.1 Export Control

Both Cornerstone and Subscriber agree to comply fully with all relevant export laws and regulation of the country or countries where their offices are located.

10.2 Governing Law and Venue

This Agreement shall be governed by and construed in accordance with the laws of the United States of America (USA) and the State of Indiana (USA), without giving effect to any choice-of-law or conflict-of-law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the USA or the State of Indiana. Each Party hereby irrevocably consents to the exclusive jurisdiction of the federal and state courts located in the State of Indiana for any legal action, suit, or proceeding arising under or relating to this Agreement, and agrees that any such action, suit, or proceeding may be brought only in such courts. Each Party hereby further irrevocably waives any objection to the laying of venue for any such suit, action, or proceeding in such courts. Each Party agrees to accept and acknowledge service of any and all process that may be served in any such action, suit or proceeding or for the purpose of enforcing any such decisions or rulings. Each Party agrees that any service of process provided in accordance with the notice provisions set forth herein shall be deemed in every respect effective service of process upon such Party in any such action, suit or proceeding.

10.3 Notices

Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under or in connection with this Agreement shall be in writing and in English and shall be deemed to have been duly given: (i) if delivered personally, when received; (ii) if transmitted by facsimile, upon receipt of a confirmation of receipt; (iii) if by domestic courier service, on the second business day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed to the sender by such courier service; (iv) if by international courier service, on the fourth business day following the date of deposit with such courier service, or such earlier delivery date as may be confirmed to the sender by such courier service; and (v) if sent by email, upon the earlier of (1) acknowledgment of receipt by the recipient, or (2) two (2) business days after transmission, unless the sender receives an automated message indicating that the email was undeliverable. All such notices, requests, demands and other communications shall be addressed as set forth below, or as otherwise instructed by the applicable Party pursuant to written notice:

If to Subscriber: Subscriber name and address specified in the applicable Subscriber Account or in Subscriber’s most recent Order, if Subscriber has not yet created a Subscriber Account.

If to Cornerstone: Cornerstone Information Systems, Inc. — Attn: Chief Executive Officer, morrego@ciswired.com, 304 West Kirkwood Ave., Suite 101, Bloomington, IN 47404 USA. cc: Chief Operating Officer, dkroeger@ciswired.com, 304 West Kirkwood Ave., Suite 101, Bloomington, IN 47404 USA.

10.4 Assignment

Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by Subscriber (including by operation of law) without the prior written consent of Cornerstone. Cornerstone may assign this Agreement, together with its rights, interests and obligations hereunder, to any other person. Any assignment of this Agreement or any of the rights, interests or obligations hereunder other than as expressly permitted by this Section 10(e) shall be null and void and shall not bind or be recognized by either Party. Subject to the preceding sentences in this Section 10(e), this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Cornerstone may subcontract any or all of its obligations hereunder.

10.5 Entire Agreement

This Agreement, together with all Orders entered into hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, agreements and representations, oral and written, by or between the Parties with respect thereto. Notwithstanding the foregoing, if a Subscriber has entered into a separate, written agreement with Cornerstone governing access to and use of the Cornerstone Index Products (an “MSA”), such MSA will control with respect to such Subscriber use of the Cornerstone Index Products. For the avoidance of doubt, Subscriber and Cornerstone may have entered into, or may subsequently enter into, other agreements for Cornerstone products or services other than the Cornerstone Index Products. Subscriber’s acceptance of the terms of this Agreement for the Cornerstone Index Products, and any termination of this Agreement, will have no effect on any such other agreements between the Parties, which will continue in full force and effect in accordance with their applicable terms.

10.6 Amendments

Cornerstone may make changes to this Agreement from time to time without prior notice to Subscriber. When such changes to this Agreement are made, Cornerstone will make the updated Agreement available on Cornerstone’s website. Unless otherwise notified by Cornerstone, Subscriber understands and agrees that the updated Agreement will be effective immediately and that Subscriber’s continued use of the Cornerstone Index Products after the date on which the terms of the Agreement have changed constitutes acceptance of the updated Agreement.

10.7 Severability

If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

10.8 Force Majeure

Except for payment obligations, neither Party will be in default or liable for any delays in performance, non-performance or downtime caused by acts of God, war, strikes, labor disputes, fires, work stoppages, acts of governments, providers of data, communications or other services, acts or omissions of suppliers, or for any other cause beyond the control of such Party (“Force Majeure Event”).

10.9 Waiver

The waiver or failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right herein.

10.10 Interpretation

The language used in this Agreement is deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction will be applied against either Party. The use of the word “including” in this Agreement means “including without limitation” and is intended by the Parties to be by way of example rather than limitation. As used in this Agreement, the terms “hereof,” “hereunder,” “herein” and words of similar import will refer to this Agreement as a whole and not to any particular provision of this Agreement. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.

10.11 No Third Party Beneficiaries

Nothing in this Agreement shall be construed as giving any person or entity other than the Parties and their respective permitted successors and assigns any legal or equitable right, remedy or claim under or with respect to this Agreement.

10.12 Relationship of the Parties

Nothing in this Agreement is intended to create or constitute a joint venture, partnership, agency, trust or other association of any kind between the Parties or persons referred to herein.