BEANSTALK DATA MASTER SOFTWARE SUBSCRIPTION AGREEMENT

BEANSTALK ENGAGE MASTER SOFTWARE SUBSCRIPTION AGREEMENT

(Revised: May 1, 2016)

THIS SUBSCRIPTION AGREEMENT (“SUBSCRIPTION AGREEMENT”) GOVERNS YOUR TRIAL OF THE MODULES. THE LENGTH OF THE TRIAL PERIOD WILL BE DETAILED IN A SEPARATE APPROVED STATEMENT OF WORK. IF YOU CONTINUE USING OUR MODULES, THIS SUBSCRIPTION AGREEMENT WILL ALSO GOVERN YOUR ONGOING USE OF THOSE MODULES. BY ACCEPTING THIS SUBSCRIPTION AGREEMENT, BY LOGGING IN INDICATING YOUR ACCEPTANCE, BY EXECUTING A MASTER SERVICES AGREEMENT THAT REFERENCES THIS SUBSCRIPTION AGREEMENT OR BY EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS SUBSCRIPTION AGREEMENT, YOU AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT. IF YOU ARE ENTERING INTO THIS SUBSCRIPITION AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS SUBSCRIPTION AGREEMENT AND MAY NOT USE THE MODULES. Any conflict or inconsistency between the provisions of this Subscription Agreement, a Master Services Agreement and/or any Approved Statement of Work shall be resolved by giving precedence to the Approved Statement of Work, then to the executed Master Services Agreement and then to this Subscription Agreement. You may not access the Modules if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Modules for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Subscription Agreement was last updated March 1, 2015. It is effective between You and Us as of the date of You accepting this Subscription Agreement.

DEFINITIONS.
"Affiliate"means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Agreement" means a Master Services Agreement, if applicable.
“Aggregated & Anonymized Data”means previously identifiable data that have been deidentified and for which a code, key or other link no longer exists and which is combined with sets of other anonymized data. An investigator would not be able to link anonymized information back to a specific individual, client or customer.
“Authorized User” means Your employee, contractor, representative, or agent who is entitled to provide or request data (including information concerning an End User), provide Content Assets, and request actions as part of this Subscription Agreement.
"Digital Assets" means native creative files submitted by You to the Modules or created by Us for use in the Modules.
“Campaign & Reporting Data” means all electronic campaign history data generated by the Modules. This includes but is not limited to campaign statistics and history records.
“Client Content” means any text, image, video or other material or data that is owned by, or licensed to, You and provided by You to Us for use pursuant to this Subscription Agreement or any Statement of Work hereunder.
“Client Mark” means any trademark, service mark, trade dress, or trade name that is owned by, or licensed to, You and provided by You to Us for use pursuant to this Subscription Agreement or any Statement of Work hereunder.
“Combined Solution” has the meaning attributed to it in Section 11.
“Content Asset” means any text, image (including, without limitation, any logos or trademarks), video, or other content provided by You to Us for use in providing any Services.
"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.
“End User” means any person, except for Us, Our Affiliates, You or Your Affiliates, who sends or receives a Message, interacts with a web site, is issued or redeems an email, point-of-sale or mobile coupon, in each case, in connection with the Modules and/or a Message or otherwise interacts with the Modules and/or a Message. Notwithstanding the foregoing, an End User may also be a destination system or network as designated by You.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Marketing Campaigns & Ideas" means all marketing campaigns, concepts and ideas suggested, developed and/or created by Us.
“Message” means an SMS, MMS, email message or other data transmission that is sent to or received by an End User as part of a Project or from the Modules.
"Modules" means the online, Web-based applications and platform provided by Us via https://app.BeanstalkData.com and/or other designated websites and/or other designated web services, that are ordered by You under an Order Form, including associated offline components but excluding Third Party Applications.
"Order Form" means the signed ordering documents for purchases hereunder or an Approved Statement of Work, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
“Personally Identifiable Information” means any information that can be used to identify any individual or trace an individual’s identity (including, without limitation, an individual’s name, social security number, date and place of birth, mother’s name, or biometric records) and any other information that is logically associated with other information about the specifically identified individual.
“Project” means any marketing, development, consulting, technical, or creative initiative of Client, or software platform subscription from Heartland Commerce, Inc. to Client, which is organized as part of the Services.
“Reasonable Efforts” means, with respect to a given obligation, the efforts that a reasonable person in the promisor’s position would use so as to perform that obligation as promptly as possible, except:
(a) taking any action that would, individually or in the aggregate, cause the promisor to incur costs, or suffer any other detriment, out of reasonable proportion to the benefits to the promisor under this Subscription Agreement and any applicable Statement of Work;
(b) changing its business strategy;
(c) taking any action that would violate any applicable law, regulation, or order; or
(d) taking any action that would imperil the promisor’s existence or solvency.
“SaaS” means software as a service.
“Script” has the meaning attributed to it in Section 8.7.
“Secure Transmission” means the transmission of data in a manner which renders it unusable, unreadable, or indecipherable to unauthorized persons and which complies with all laws and regulations applicable to such data. Secure Transmission requires, at a minimum, that the data transmitted be transmitted in encrypted form over a secure channel.
“Sweepstakes” means any game or contest involving elements of skill or chance for which a prize is awarded.
"Third-Party Applications" means online, Web-based applications, web services, native mobile applications and offline software products that are provided by third parties, interoperate with the Modules, and are identified as third-party applications.
"Users" means individuals who are authorized by You to use the Modules, for whom subscriptions to a Module have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means Heartland Commerce, Inc. the company described in Section 17 (Who You Are Contracting With).
"You" or "Your" means the company or other legal entity for which you are accepting this Subscription Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Modules. It also includes electronic data submitted by Your prospects and/or customers via a web landing page.
All capitalized terms not defined in this Subscription Agreement are references to the Agreement.
TRIAL.
We may make one or more Modules available to You on a trial basis until the earlier of (a) the length of time specified in an Approved Statement of Work or (b) the execution of an Order Form. Your Data and any Digital Assets entered into the Modules during your Trial will remain Your property at the conclusion of the Trial as long as there are no outstanding invoices. ANY CUSTOMIZATIONS MADE TO THE MODULES BY OR FOR YOU, DURING YOUR TRIAL, WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME MODULES AS THOSE COVERED BY THE TRIAL, NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE TRIAL THE MODULES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
MODULES.

3.1. PROVISION OF MODULES.
We shall make the Modules available to You pursuant to this Subscription Agreement and the relevant Order Forms during a subscription term. You agree that Your 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 Us regarding future functionality or features.

3.2. SOFTWARE SUBSCRIPTIONS.
Unless otherwise specified in the applicable Order Form, Modules are purchased as SaaS subscriptions. The software is delivered via SaaS; no title to any product is given or transferred to You.

THIRD-PARTY PROVIDERS.

4.1. ACQUISITION OF THIRD-PARTY PRODUCTS AND MODULES.
We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.

4.2. THIRD-PARTY APPLICATIONS AND YOUR DATA.
If You install or enable Third-Party Applications for use with Modules, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data and Registration Data as required for the interoperation of such Third-Party Applications with the Modules. We shall not be responsible for any disclosure, modification or deletion of Your Data or Registration Data resulting from any such access by Third-Party Application providers.

FEES AND PAYMENT FOR MODULES.

5.1. MODULE FEES.
Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of Module subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Module subscription fees are based on monthly periods that begin on the first day of each month, paid in advance for each monthly anniversary at the end of the prior month. If the Module Subscription start date begins in the middle of a monthly period, the Module Subscription will be charged on a pro-rated basis by taking the monthly subscription fee and dividing by the number of days in the starting month. Prorated fees are charged on the actual start date.

5.2. CONSUMABLES FEES.
The fees for consumables when not bundled as part of a Module subscription, as defined in an Order Form, are billed in arrears at the end of the month when the next month’s service and software subscription fees are being billed in advance unless alternative arrangements have been made in a Master Services Agreement or Approved Statement of Work.

6. PROPRIETARY RIGHTS.

6.1. RESERVATION OF RIGHTS.
Subject to the limited rights expressly granted hereunder, We reserve all rights, titles and interests, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. RESTRICTIONS.
You shall not (i) permit any third party to access the Modules except as permitted herein or in an Order Form, (ii) create derivate works based on the Modules, (iii) copy, frame or mirror any part or content of the Modules, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Modules, or (v) access the Modules in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Modules.

6.3. OWNERSHIP OF YOUR DATA.
As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data, the Campaign & Reporting Data, Client Content, Client Marks and Digital Assets. We exclusively own all rights, title and interest to Aggregated & Anonymized Data and the Marketing Campaigns & Ideas. You grant to Us an irrevocable, perpetual non-exclusive, fully paid, worldwide license to use, copy, store, retain, transmit, reformat, modify, edit, translate, excerpt, and adapt the Client Content, Client Marks and Digital Assets as necessary or appropriate to fulfill Our obligations under this Subscription Agreement or any Approved Statement of Work.

6.4. SUGGESTIONS.
We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Modules any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Modules.

6.5 ENDORSEMENT.
We may endorse any product or service we provide, and any output from either of them, with Our branding (such as, without limitation, a “powered by Beanstalk Engage” logo or “this email sprouted by Beanstalk Engage”).

6.6 MODIFICATIONS.
You shall not make, or attempt to make, any adaptations, modifications, or variations of any software produced by Us.

6.7 DECODE.
You shall not decode, disassemble, decompile, reverse translate, or reverse engineer or attempt to decode, disassemble, decompile, reverse translate, or reverse engineer any software produced by Us.

6.8 SUBLET.
You shall not rent, lend, assign, or transfer any software and/or Modules produced by Us pursuant to this Subscription Agreement and/or an Approved Statement of Work, in whole or in part. Any such attempted rental, lending, assignment, or transfer will be void.

COMPELLED DISCLOSURE.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
WARRANTIES AND DISCLAIMERS.

8.1. OUR WARRANTIES.
We warrant that We have full power and authority to grant the licenses and rights granted under this Subscription Agreement or any Approved Statement of Work without the consent or approval of any third party. EXCEPT AS SET FORTH IN THIS SECTION, WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The services and Modules are warranted only to You, and You shall not extend any warranties for or on behalf of Us to any customer, end user, resellers, or any other third parties.

8.2. MUTUAL WARRANTIES.
Each party represents and warrants that (i) it has the legal power to enter into this Subscription Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

8.3 LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOOD WILL, LOSS OF REVENUE OR PROFIT, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
IN ANY EVENT, OUR ENTIRE LIABILITY UNDER THIS SUBSCRIPTION AGREEMENT OR ANY APPROVED STATEMENT OF WORK HEREUNDER WILL BE LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO US PURSUANT TO THE APPLICABLE APPROVED STATEMENT OF WORK OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING SUCH LIABILITY EVENT.

8.4 ACTS AND OMISSIONS
Without limiting the generality of Sections 8.3, We shall not be liable for any claim which arises, in whole or in part, from:
(a) any failure, downtime, or lack of capacity of any telecommunications network;
(b) any act or omission of any third-party;
(c) any act or omission of You; or
(d) any other factor beyond Our reasonable control

8.5 DISCLAIMER.
NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND WITH TO THE OTHER PARTY WITH RESPECT TO SERVICES PROVIDED UNDER THIS SUBSCRIPTION AGREEMENT, COMPONENTS, DOCUMENTATION, HARDWARE, SOFTWARE, MATERIALS OR OTHER WORK PRODUCT PROVIDED HEREUNDER. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE.

8.6 PERFORMANCE.
We shall use Reasonable Efforts to deliver each Message, web page, or other data transmission to the intended End User as quickly as possible. However, the time it takes to actually deliver any particular Message, web page, or other data transmission and whether the intended End User actually receives the Message, web page, or other data transmission depends on a number of factors, many of which are not within Our direct control. Accordingly, We make no warranties, express or implied, with respect to whether any Message, web page, or other data transmission will actually reach the intended End User or the time it may take any Message, web page, or other data transmission to reach the intended End User.

8.7 SCRIPTS AND MESSAGES.
If You provide to Us any Content Asset, script or Message used by Us to perform hereunder (such script or Message and any amendments or modifications thereof, a “Script”), You warrant that:

(a) as to each Content Asset provided to Us, the Content Asset does not infringe any rights (including Intellectual Property Rights) of any third-party or give rise to a right of action by any third-party.
(b) the content of the Script and Our use of the Script does not infringe any rights (including Intellectual Property Rights) of any third-party or give rise to a right of action by any third-party;
(c) the Script does not contain any material that is defamatory, offensive, abusive, obscene, menacing, unlawful, harmful, threatening, harassing, or which could incite violence or discrimination based on race, gender, color, religious belief, sexual orientation, or disability;
(d) You have, with respect to each person named, represented, or otherwise identified in the Script, obtained all permission, authority, and licenses necessary or appropriate to permit You and Us use each such person’s name, representation, or identification; and
(e) the Script strictly complies with all applicable law (including, without limitation, all treaties and all domestic and foreign statutes) and regulations.

8.8 PERSONALLY IDENTIFIABLE INFORMATION.
If You provide to Us any Personally Identifiable Information for the purposes of providing You with products or services (including, without limitation, for record keeping, administrative, reporting, billing, or internal business purposes), You warrants that:
(a) all Personally Identifiable Information and all other information supplied by You or used in connection with products or services provided to You by Us was obtained in strict compliance will all applicable law (including, without limitation, all treaties and all domestic and foreign statutes) and regulations; and
(b) You have obtained all consents which are necessary or appropriate with respect to all Personally Identifiable Information and all other information supplied by You or used in connection with products or services provided to You by Us.

8.9 SUBSCRIPTION LISTS.
If a subscription list should become part of any Project:
(a) the only list of subscribers, opt-ins, and opt-outs must be held and maintained by Us. You shall not keep or maintain any separate or independent list of subscribers, opt-ins, or opt-outs; and
(b) any subscriber, opt-in, or opt-out information provided to Us by You must be complete, accurate, and comply with all applicable laws and regulations.

TERM AND TERMINATION.

9.1. TERM OF SUBSCRIPTION AGREEMENT.
This Subscription Agreement commences on the date You accept it and continues until all software subscriptions granted in accordance with this Subscription Agreement or the term specified in an Approved Statement of Work have expired or been terminated. If You elect to use the Modules for a Trial period and do not purchase a subscription to use the Modules this Subscription Agreement will terminate at the end of the Trial period.

9.2. RETURN OF YOUR DATA.
Upon request by You made within 30 days after the effective date of termination of a Module’s subscription, We will make available to You for download a file of Your Data in an MS Excel, MS Access, or comma separated value (.csv) format along with Your Digital Assets in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

9.3. SURVIVING PROVISIONS.
The rights, obligations, representations, and warranties contained in Sections
5, 6, 8.3, 8.5, 8.8, 9.2, 11, 12.3, 12.4, and 15 through 22 of this Subscription Agreement will survive any termination or expiration of this Subscription Agreement.

SUSPENSION OF SERVICES.
We may suspend, withdraw, or alter any product or service it provides if, in Our sole determination:
(a) such suspension, withdrawal, or alteration is necessary or appropriate to permit the maintenance, reconfiguration, substitution, or replacement of Our hardware, software, or system used in connection with developing or providing such product or service;
(b) You are using or purporting to use such product or service in any manner not permitted by this Subscription Agreement or the Approved Statement of Work applicable to such product or Service;
(c) such suspension, withdrawal, or alteration is necessary or appropriate for Us to comply with any applicable law or regulation or industry practice;
(d) any subscription or permission necessary for the operation of such product or service is revoked or suspended or may be revoked or suspended;
(e) such suspension, withdrawal, or alteration is necessary or appropriate to comply with any request made by any owner or operator of a wireless network, governmental or regulatory authority, or law enforcement agency; or
(f) You fail to fulfill any of its obligations under this Subscription Agreement or any applicable Approved Statement of Work.
INDEMNIFICATION.
You shall defend, indemnify, and hold harmless Us, Our officers, directors, employees, agents, and Our Affiliates from and against any claims, actions or demands, including, without limitation, all reasonable attorney’s fees and costs, costs of in-house counsel, and costs of paralegals, (including but not limited to those arising from death, bodily injury, sickness, disease, or any other injury to any persons or damage or destruction to any property including loss of use) made by any third party resulting from:
(a) Your breach of this Subscription Agreement or any Approved Statement of Work;
(b) any breach of a representation or warranty made by You in this Subscription Agreement or any Approved Statement of Work;
(c) Your negligence or gross negligence;
(d) any act or omission of any Your Affiliate and
(e) any information or data provided by You under this Subscription Agreement or any Approved Statement of Work;
(f) use of a service or Module provided to You by Us;
(g) any claim that Your, Your Affiliates and/or Your Third Parties’ software and/or hardware platforms, combined with software delivered as work for hire by Us as part of an Approved Statement of work or use of Our Modules via this Subscription Agreement, (the “Combined Solution”), i.e. integration of Your products and Our products, infringes any intellectual property right of a third party.
CLIENT OBLIGATIONS.

12.1. TRANSMISSION OF PERSONALLY IDENTIFIABLE INFORMATION.
You shall transmit Personally Identifiable Information and other sensitive data only by means of Secure Transmission. Notwithstanding any other provision of this Subscription Agreement or Approved Statements of Work hereunder, We shall have no obligation to protect from unauthorized disclosure any data transmitted to Us by You or Your Affiliate by any means other than Secure Transmission.

12.2 AUTHORIZED USERS LIST.
At all times, You shall keep a current list of Authorized Users and shall provide such list to Us immediately upon any change in the list. You acknowledge that We are under no obligation to respond or act on the directions or instructions of any employee, agent, contractor or Your representative of other than an Authorized User.

12.3 SWEEPSTAKES.
As to any Sweepstakes, which You may include in a Message and/or cause to interact with the Modules, You shall ensure that the Sweepstakes complies in all respects with all applicable law and regulation. You shall defend, indemnify, and hold Us harmless, Our officers, directors, employees, agents, and Our Affiliates from and against any claims, actions or demands, losses, liabilities, including, without limitation, all reasonable attorney’s fees and costs, made by any third party due to or resulting from such Sweepstakes.

12.4 CONTENT ASSETS.
You shall ensure that You are the sole owner of all rights in and to any and all Content Assets provided to Us and each such Content Asset does not infringe on any Intellectual Property Right of Us, Our Affiliates, or of any third party.

12.5 LEGAL USE.
You shall only access, use, or permit the use of the Modules and/or send Messages in strict compliance will all applicable law (including, without limitation, all treaties and all domestic and foreign statutes) and regulations.

EXPORT COMPLIANCE.
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Modules. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Modules in violation of any U.S. export embargo, prohibition or restriction.
RELATIONSHIP OF THE PARTIES.
The parties are independent contractors. This Subscription Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
SEVERABILITY.
If any provision of this Subscription Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Subscription Agreement shall remain in effect.
ATTORNEY FEES.
You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Subscription Agreement following Your breach of Section 5 (Fees and Payment for Modules)
WHO YOU ARE CONTRACTING WITH.
You are contracting with Heartland Commerce, Inc., a Global Payments Company. Notices should be addressed to: Attn: Corporate Secretary, Global Payments Inc., 10 Glenlake Parkway NE, North Tower, Atlanta, Georgia 30328-3473
NOTICES.
Any notice required under this Subscription Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed by (i) express courier upon written verification of actual receipt or (ii) facsimile upon confirmation of receipt generated by the sending device.
GOVERNING LAW.
This Subscription Agreement shall be governed and interpreted by the laws of the State of Georgia, without giving effect to its principles of conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Subscription Agreement. In the event an action is brought to enforce any provision or declare a breach of this Subscription Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney's fees, incurred thereby.

20. INJUNCTIVE RELIEF.
It is expressly agreed that a material breach of this Subscription Agreement will cause irreparable harm to Us and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, We shall be entitled to injunctive relief against You in the event of any threatened or actual violation of any or all provisions in this Subscription Agreement.
FORCE MAJEURE.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of internet disturbances, strikes, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, labor conditions, or any other cause which is beyond the reasonable control of such party.
NO WAIVER; CUMULATIVE REMEDIES.
No delay on the part of either Party or failure by that Party to exercise any power, right or remedy under this Subscription Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any power, right or remedy or any abandonment or discontinuance of steps to enforce such right, power, or remedy preclude other or further exercises thereof, or the exercise of any other power, right or remedy. The rights and remedies in this Subscription Agreement and Approved Statements of Work are cumulative and not exclusive of any rights or remedies (including, without limitation, the right of specific performance) which either Party would otherwise have.