BoardEffect® MASTER TERMS

BoardEffect® Platform Master Terms

These Master Terms set out, in each case pursuant to a signed “Order Form” between Diligent Corporation (“Diligent”) and the entity identified in the Order Form as the “Client”: (1) the terms and conditions under which Diligent grants to, and Client subscribes to use the BoardEffect Platform (as defined in this Agreement), and (2) the services to be provided to Client in connection with the grant of rights pursuant to this Agreement. Any capitalized terms not defined herein shall have the meaning set forth in the Order Form. Together the Order Form and these Master Terms shall be understood to be the “Agreement.” In the event of any conflict between these Master Terms and the Order Form, the Order Form shall control. The Effective Date of the Agreement shall be as specified in the Order Form.

In consideration of the promises and mutual covenants set forth herein, Diligent and Client hereby agree as follows:

1. DEFINITIONS

1.1 Defined Terms. In addition to other capitalized terms defined throughout this Agreement, the following terms shall have the meanings provided below:

• “BoardEffect Platform”or “Platform”shall mean the board portal software as a service offering provided by Diligent (including Updates) branded “BoardEffect” and described in the related Documentation as updated from time to time.
• “Client Data”shall mean the text and other information that are published on the BoardEffect Platform by Client.
• “Diligent’s Trademarks” shall mean “BoardEffect” and any future trademarks owned or licensed by Diligent for use in promoting the BoardEffect Platform.
• “Documentation”shall mean any documentation, specifications or technical information or materials which Diligent either supplies generally in conjunction with the Diligent, or supplies specifically in accordance with this Agreement.
• “Server(s)”shall mean the physical machine or machines on which the BoardEffect Platform will be installed.
• “Term”shall mean the Initial Term plus any Renewal Terms (each as defined in Section 3).
• “Updates”shall mean updates and/or enhancements of the BoardEffect Platform as created and/or developed by or for Diligent which are marketed under the same product number and nomenclature or which are marketed as a replacement for the BoardEffect Platform, each as made generally available to Diligent’s similarly situated customers.

2. DELIVERY OF PLATFORM AND SERVICES

2.1 Delivery of the BoardEffect Platform and Updates. Diligent shall deliver to Client the BoardEffect Platform by means of installing it on a Server operated by Diligent. Diligent may design or develop BoardEffect Platform Updates. Diligent shall deliver to Client such BoardEffect Platform Updates by means of installing them on the Server operated by Diligent. Diligent will provide BoardEffect Platform Updates to Client during the Term of this Agreement at no additional charge. There may be a charge for labor associated with migrating existing customization during implementation of the Update. This charge will be communicated to Client prior to any Update being implemented. Diligent reserves the right to modify the database design and structure with any subsequent Platform release. In the event of such modification, Diligent shall ensure that new versions provide Client with full access to all database content created under previous releases.

2.2 Technical Support and Services. Diligent will take reasonable measures to make available technical support services to Client as outlined in the Support and Maintenance Guide located at https://www.boardeffect.com/support-terms/.

The staff of Client will perform all tasks related to Client Data management such as editing or deleting Client Data. All services performed by Diligent will be performed in a workmanlike manner per industry standards of similarly situated software-as-a-service providers.

3. TERM

This Agreement shall become effective on and as of the Effective Date and shall continue for a period of one (1) year (or such other period expressly stated in the Order Form) (the “Initial Term”) thereafter. Upon expiration of the Initial Term, the Agreement shall automatically renew for subsequent one-year periods (the “Renewal Term”) unless either party gives the other party written notice of non-renewal at least sixty (60) days prior to expiration of the Renewal Term.

4. GRANT OF RIGHTS

4.1 Grant of Rights. Subject to the terms and conditions set forth in this Agreement, Diligent hereby grants to Client during the Term, and Client hereby accepts from Diligent, the limited, non-exclusive, non-transferable right to:

• access and use the BoardEffect Platform for all legal uses contemplated by this Agreement; and
• permit Client and end users to access the BoardEffect Platform via the internet and use the BoardEffect Platform, for all legal uses contemplated by this Agreement.

4.2 Restrictions. The rights granted in Section 4.1 above shall be limited as follows:

• Except as permitted under the Agreement, Client shall not copy or reproduce the BoardEffect Platform nor in any way modify, sell, rent, lease, license, sublicense, resell any of its rights, distribute all or any portion of the BoardEffect Platform to any person or entity;
• Except for the limited rights set forth in the Agreement, Client does not acquire any intellectual property or other rights, express or implied, in or relating to the BoardEffect Platform; and
• Diligent reserves title, ownership, and all other rights to the BoardEffect Platform. Client shall not reverse engineer, decompile, or otherwise attempt to determine the source code or algorithms of the BoardEffect Platform or otherwise interfere with or disrupt the BoardEffect Platform.
• Client must not, and represents and warrants it will not use the BoardEffect Platform in any manner that is not authorized by Diligent or in any manner that is prohibited by this Agreement. Client is responsible for all access and use of the BoardEffect Platform by its end users and any person that gains access through Client or any of its end users.
• For the avoidance of doubt, Client may not provide Diligent with any Protected Health Information (“PHI”), as defined the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act (commonly referred to as the “HITECH Act”), or similar data unless Client has purchased access to Diligent’s HIPAA-compliant offering within the Order Form. If Client has purchased access to Diligent’s HIPAA-compliant offering within the Order Form, Client shall only provide PHI to Diligent as Client Data.

4.3 Trademarks. Diligent hereby grants Client the non-exclusive right to display and use Diligent’s Trademarks, provided that Client shall assure that the use of Diligent’s Trademarks is per Diligent’s express specifications. Client agrees that Diligent’s Trademarks shall remain the sole property of Diligent and that Client will obtain no proprietary interest by virtue of this Agreement in any of Diligent’s Trademarks.

4.4 Transfer of Agreement. This Agreement may not be transferred without approval by Diligent and Client. Approval will not be unreasonably withheld. Notwithstanding the foregoing, either party may transfer the Agreement to an affiliate or in the event of a change in control of the party without the other party’s prior written consent.

5. CLIENT DATA AND CLIENT MATERIALS.

5.1 Client reserves all title and ownership of the Client Data residing in the BoardEffect Platform.

5.2  Client hereby grants Diligent the right to use the Client Data for the purpose of providing the BoardEffect Platform and support services pursuant to this Agreement.

5.3 If Client furnishes to Diligent any content or materials other than Client Data (collectively “Client Materials”), Diligent may use the Client Materials in connection with the provision of the BoardEffect Platform under this Agreement. Without limiting the foregoing, Client hereby grants to Diligent for the sole purpose of fulfilling Diligent’s obligations hereunder, the limited right to publish Client’s name, logo and/or other marks as part of Client’s branding of the Platform. Client hereby grants Diligent the right to use such name, logo, and/or other marks to reference Client as a user of the BoardEffect Platform, provided that Diligent agrees to discontinue such use upon Client’s written request.

6. CONSIDERATION

6.1 Payment of Fees. Client agrees to pay Diligent all fees required by the Order Form, in no event later than thirty (30) days after the date of invoice from Diligent. Diligent expressly reserves the right to change the fees payable under any Order Form with respect to any Renewal Term for such Order Form sixty (60) days prior to the expiration of its then-current Initial Term or Renewal Term. Client shall be responsible for any travel, accommodation and meal expenses incurred in connection with any on-site training or instruction or attendance at board meetings at the request of Client, and such expenses are not included in fees. Except in the event of termination of this Agreement by Client for cause, in the event of the cancellation, completion, expiration or termination of this Agreement, all monies paid or due or owing to Diligent by Client shall be deemed non-refundable. Client will pay all fees in U.S. dollars unless otherwise set forth in the applicable Order Form. Payments shall be sent to the address indicated on the invoice.

6.2 Late Fees. Diligent may charge interest on any overdue amounts at the lower of: (a) the highest permissible rate under applicable law, or (b) 1.5% per month from the date on which such amount fell due until the date of payment, whether before or after judgment. Client acknowledges that any delay in payment for any Initial Term or Renewal Term may result in termination of the rights granted by Diligent hereunder and/or an interruption in service at Diligent’s sole discretion.

6.3 Taxes. The fees hereunder do not include any sales, use, excise, import or export, value-added (“VAT”), goods and services (“GST”), or similar tax or interest, or any costs associated with the collection or withholding thereof, or any government permit fees, license fees or customs or similar fees (“Taxes”) levied on the delivery of any software or the performance of services by Diligent to Client. Client will be responsible for payment of such Taxes at point of sale. In the event that any withholding taxes are payable under any applicable law in respect of any payment due to Diligent under this Agreement, Client shall gross up such payment such that the balance payable to Diligent after deduction of the applicable withholding taxes shall be equivalent to the original amount due to Diligent.  In the event any avoidance of double taxation treaty is applicable to such payments, Diligent and Client shall cooperate to obtain the full benefit of such treaty.

7. LIMITED WARRANTY

Disclaimer of Warranty. DILIGENT warrants that the Service will perform in substantial accordance with the Documentation during the Term. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT: (A) THE BOARDEFFECT PLATFORM AND ALL OTHER OFFERINGS ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DILIGENT AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) NEITHER DILIGENT NOR ITS LICENSORS WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE OR SERVICE WILL MEET ANY REQUIREMENTS OR NEEDS CLIENT MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE OR SERVICE IS COMPATIBLE WITH ANY PARTICULAR COMPUTER SYSTEM OR SOFTWARE; AND (C) DILIGENT AND ITS LICENSORS MAKE NO GUARANTEE OF ACCESS TO OR OF ACCURACY OF THE CLIENT DATA OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE OFFERINGS.

8. INDEMNIFICATION

Indemnification. Diligent will defend at its expense any action brought against Client to the extent it is based on a claim that the BoardEffect Platform, Documentation or any part thereof, when used within the scope of and in accordance with this Agreement and as provided by Diligent hereunder, infringes a patent, copyright or other proprietary right of a third party, and Diligent will pay any settlements, expenses, costs, and damages finally awarded, including reasonable attorney’s fees incurred by Client, in such action and which are attributable to such claim. Diligent’s obligations under this Section are conditioned on Client (i) notifying Diligent promptly in writing of any claim or potential claim, (ii) giving Diligent the exclusive control of the defense and settlement thereof, and (iii) providing all reasonable assistance in connection therewith.

In the event use of the Platform becomes, or in Diligent’s reasonable opinion is likely to become, the subject of a claim of infringement of a patent, copyright or other proprietary right, it is Diligent’s option to remedy the situation by (i) procuring the continuing right to use the Platform, or (ii) replacing or modifying the Platform so that it no longer infringes, or (iii) terminating this Agreement.

Diligent has no responsibility for the Client Data posted on Client’s hosted BoardEffect Platform or any modifications or combinations of the Platform with other software or services without Diligent’s prior written consent. Client will indemnify and hold harmless Diligent for any third party claims or legal actions brought against Diligent as a direct result of any such Client Data, modification, or combination, and will hold Diligent harmless from any damages, liabilities, or other costs, including reasonable attorney fees and court costs, in an amount not to exceed the amount of fees actually paid by Client during the Initial Term or the Renewal Term in which Client Data in question was posted on the Client’s hosted BoardEffect Platform or the modification or combination was made. Client will promptly notify Diligent of any claims by a third party with respect to Client Data or such unauthorized modifications or combinations, and Diligent and Client will cooperate at their respective expense in any defense of such claims. This section 8 states Diligent’s entire liability and Client’s sole and exclusive remedy for claims of infringement.

9. DISCLAIMER OF CERTAIN DAMAGES

SUBJECT TO SECTION 10.2, DILIGENT, ITS SUPPLIERS, AGENTS, AND ASSIGNEES SHALL NOT BE LIABLE TO CLIENT OR ITS AGENT OR ASSIGNEES FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF DILIGENT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.

10. LIMITATION ON LIABILITY

10.1 Limitation on Liability. SUBJECT TO SECTION 10.2, DILIGENT, ITS LICENSORS, SUPPLIERS, AGENTS, AND ASSIGNEES SHALL NOT BE LIABLE TO CLIENT OR ITS AGENT OR ASSIGNEES FOR ANY DAMAGES IN EXCESS OF TWELVE MONTHS’ FEES (ACTUALLY PAID BY CLIENT).

10.2 Exceptions.  THE LIMITATION OF LIABILITY SET OUT IN SECTIONS 9 AND 10 SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN KINDS OF DAMAGES SO CERTAIN LIMITATIONS MAY NOT APPLY TO CLIENT.

11. TERMINATION

11.1 Termination with Cause. In the event of an uncured material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by sending the breaching party written notice of the nature of such breach and by providing the breaching party an opportunity to cure such breach within thirty (30) days. Non-payment of either access or consulting fees shall be considered a material breach. If the material breach is not cured within thirty (30) days of written notification, the non-breaching Party may terminate this Agreement immediately upon written notice to the breaching party.

11.2 Effect of Termination. Upon termination of this Agreement, all of the rights granted to Client shall immediately terminate and Client shall cease access and use of the BoardEffect Platform. During the Term, Client has the ability to export (a) reports and directory information stored within the BoardEffect Platform in .xlsx format from the BoardEffect Platform and (b) a copy of the Client Data as a .zip file to the Client. Client Data will be deleted within thirty (30) days of termination of this Agreement.

11.3 Effect of Breach. No breach by Client shall relieve it of its obligation to pay the fees in accordance with Section 6.1 hereof. The remedies set forth in this Agreement are cumulative and not exclusive. Each party shall be entitled to pursue, in connection with any breach, such remedies as are provided by law or equity in connection with such breach.

12. CONFIDENTIAL INFORMATION

12.1 Protection of Confidential Information. Each party will refrain from using the other party’s Confidential Information except as contemplated herein, and from disclosing such Confidential Information to any third party except to their employees and third parties who participate directly in the performance of the receiving party’s obligations hereunder, have a need to know the Confidential Information, and who are bound by duties of confidentiality no less stringent than those set out herein. Each party shall protect and safeguard the Confidential Information of the other party using at least the same degree of care such party uses to protect its own confidential information of like importance, but in any event no less than reasonable care.

12.2 Confidential Information Defined. For purposes of this Agreement, “Confidential Information” means any information and data which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, which may include, without limitation, proprietary technical, financial, personnel, marketing, pricing, sales and/or commercial information with respect to the products and services of the parties, as well as ideas, concepts, designs, computer programs (including source code and object code) and inventions and all record bearing media containing or disclosing such Confidential Information which are disclosed pursuant to this Agreement. Confidential Information does not include information (a) already rightfully known to the receiving party without restriction or that has been independently developed by the receiving party without the use of any proprietary information, (b) disclosed in published materials through no violation of this Agreement, (c) generally known to the public without restriction through no fault of the receiving party, or (d) obtained without restriction from any third party rightfully empowered to disclose such information. A party also may disclose the other party’s Confidential Information where such disclosure is required by law, provided that the party making such disclosure shall only provide such information after providing to the disclosing Party, to the extent permitted by law, prompt notification of such request for disclosure for the purpose of challenging such request.

13. GENERAL PROVISIONS

13.1 Remedies. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

13.2 Applicable Law. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the state of Delaware, USA, without regard to conflicts of laws provisions thereof. The parties further agree that the Uniform Computer Information Transactions Act (UCITA) (as is either adopted or may be adopted in the State of Delaware or any other jurisdiction) and the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with regard to any dispute arising out of this Agreement.

13.3 Further Assurances. Either party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.

13.4 Entire Agreement. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect.

13.5 No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.

13.6 Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties.

13.7 Entire Agreement. This Agreement, including its exhibits and attachments, represents the entire Agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous Agreements and understandings, written or oral, between the parties with respect to the subject matter hereof. The terms and conditions of any present or future purchase order or invoice submitted by Diligent or Client that conflict with or in any way purport to amend or add to any other terms and conditions of this Agreement or any exhibit hereto shall be of no force or effect nor shall it govern in any way the subject matter hereof, unless the same is expressly agreed to in writing and is executed by authorized representatives of Diligent and Client.

13.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document, and may be delivered to the other party by facsimile transmission of the signature pages hereto.

13.9 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any Agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either of the parties.

13.10 Survival. The following provisions of this Agreement shall survive the expiration or termination of this Agreement: 1,and 4 through 13.

13.11 Force Majeure. Except with regard to payment obligations, neither Party will be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, network, and/or computer failure, transportation delays, fires, floods, labor disturbances, riots, wars, terrorist acts or inability to obtain any export or import license or other approval or authorization of any government authority.

13.12 Notices.  Any notice or other communication to be given hereunder shall be in writing and shall be: (i) personally delivered; (ii) transmitted by postage prepaid registered or certified airmail, return receipt requested; (iii) deposited prepaid with a nationally recognized overnight courier service; or (iv) by e-mail, the receipt of which is confirmed. Unless otherwise provided herein, all notices shall be deemed to have been duly given on: (a) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally or by courier; or (b) upon confirmation of receipt of e-mail (which confirmation may be by email). Either party may change its address for purposes hereof on not less than three (3) days prior notice to the other party. Notice hereunder shall be directed to the following addresses:

Diligent

Diligent Corporation

1385 Broadway, 19^th Floor

New York, NY 10018

Phone Number: 212-471-8181

Email: contracts@diligent.com

Client

To the contact identified on the Order Form.

Additional Product Terms:

To the extent Client is purchasing access to Diligent Messenger, the following terms apply:

As Diligent’s sole obligations with respect to Diligent Messenger, Diligent warrants that Diligent Messenger will comply with its documentation, which will be provided to Client upon request. For the avoidance of doubt, Diligent Messenger is being provided as a separate product to the BoardEffect Platform and Diligent’s obligations with respect to the BoardEffect Platform shall not apply to Diligent Messenger.