Benchmark Insights LLC (“Benchmark”,“we”) operates websites located at benchmark-app.com and benchmark-app.net (the “Sites”). Execution of an applicable Order Form, Agreement, or use of the Sites (“Client”) is subject to the following Terms and Conditions (“Agreement”). By using any of the Sites, you agree to be bound by the Agreement as well as any other terms, guidelines or rules that apply to any portion of the Sites, without limitation or qualification. If you do not agree to the Agreement, you must exit the Sites immediately and discontinue any use of information obtained from the Sites. If you have any questions about the Agreement, please contact us [email protected]. This Agreement governs access and use of Benchmark’s services.

1. DEFINITIONS

For purposes of these Terms and Conditions, the terms below shall have the meanings defined below. Additional terms are defined in the preamble above and throughout these Terms and Conditions.

1. 1.1 “Client Content” means any data, documents, information, trademarks, logos, files, images, text or other content that may be provided by Client or its authorized users for use in conjunction with the Software or Services.

2. 1.2 “SaaS Term” means the period during which the Services and access to the Software will be provided by Benchmark to Client, including the Initial Term and any Renewal Terms (as each is defined in Section 8.1).

3. 1.3 “Services” means maintenance, support and other services provided by Benchmark pursuant to these Terms and Conditions.

4. 1.4 “Software” means the software specified as a “Software as a Service” in the ATL.

5. 1.5 “Customization Fee” means the cost to customize the software in the ATL.

2. WEB-BASED LICENSE

Benchmark grants to Client, and Client accepts, a nontransferable, nonexclusive license and right to access the Software via the Internet and use the Software only as authorized in these Terms and Conditions, for its own purpose and operations, during the SaaS Term. Client acknowledges that its access and use of the Software will be web-based only. The Software will not be provided to Subscriber in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment owned or otherwise controlled by Subscriber. Instead, the Software will be hosted by Benchmark (as described in Section 3) and accessed and used by Client through the use of the Internet and Client’s computers.

3. ACCESSIBILITY

Benchmark will make the Software available for Client’s use during the SaaS Term on Client’s computer systems. Benchmark will provide Client with secure access to the latest supported version of the Software via the Internet on a best effort basis (excludes scheduled downtime), except for scheduled system back-up or other on-going maintenance as required and scheduled in advance by Benchmark. Benchmark will provide a single administrator user account for secure administrator access upon signup. Benchmark will also provide this administrator user the necessary tools to create other users for access to the Software.

4. PERMITTED USES

Consistent with and subject to Benchmark’s database permissions and limitations, users will be permitted for the Benchmark product the following uses (but only such uses) as described below.

4.1. By Client’s Employees or Appointed Administrators:

• 4.1.1. in the creation and administration of Client Organizations, Perspective Organizations and User accounts,
• 4.1.2. for the purposes of uploading, managing and administering documents and other information which pertain to Client Organizations or Perspective Organizations’ investments and/or potential investments, and
• 4.1.3. in the administration of general settings in the system, due diligence disclaimers and other disclaimers.
• 4.1.4. for purposes of adhering to local regulatory laws, producing reports and other data exports as required by business case or law. Benchmark will support Clients in complying with DSR (Data Subject Requests), including CPRA/GDPR requests.

4.2. By Client Organizations:

• 4.2.1. for the purposes of tracking their sales and promotional activities and accounts,
• 4.2.2. for the purposes of creating custom reports by their field market representatives,
• 4.2.3. The permitted uses described herein shall only be permitted during such time the above-described user has a paid subscription with Benchmark. Full monthly payment is due upon acceptance of this agreement. You agree that upon expiration or termination of your subscription with Benchmark, all rights granted to you shall immediately terminate and revert to Benchmark. Benchmark will have no liability to store or maintain your data upon expiration or termination of your subscription with Benchmark.

5. HYPERLINKS

Benchmark’s Web Site or documents within the Benchmark system may contain hyperlinks to other sites, which are not maintained by, or related to, Benchmark. Hyperlinks to such sites are provided as a service to users and are not sponsored by or affiliated with this Benchmark. Benchmark does not continuously monitor or review any or all of such sites and is not responsible for the content of those sites. Hyperlinks are to be accessed at the user’s own risk, and Benchmark makes no representation or warranties about the content, completeness or accuracy of these hyperlinks or the sites hyperlinked to this Web Site.

6. FEES AND PAYMENT

Subscription Fee. Client shall pay a “Subscription Fee” on a monthly basis during the SaaS Term as described in the ATL or as defined in an executed Order Form or Agreement. The Subscription Fee is fixed for the Initial Term (defined below).

7. TERM AND TERMINATION

7.1. Initial Term; Renewal Terms. The SaaS Term will commence on the “Commencement Date”, indicated in the Notice of Commencement delivered by Benchmark to Client or as defined in an executed Order Form or Agreement. The SaaS Term shall continue in effect for a period of one month (the “Initial Term”) or as defined in an executed Order Form or Agreement. Upon expiration of the Initial Term, the SaaS Term shall automatically renew for successive renewal terms of one month each (each a “Renewal Term”) or as defined in an executed Order Form or Agreement.

7.2. Discount Code. Client may receive a discount code, which may allow free service for a pre-determined period. Terms and service are still applicable when using the service for free.

7.3. Termination for Breach. Notwithstanding Section 7.1, Client or Benchmark may terminate the SaaS Term as a result of a material breach of these Terms and Conditions, if (a) Benchmark provides written notification to the Client of the material breach, and (b) such material breach is not resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Client, a ten (10) day period. Benchmark and Client shall determine the amount of the refund in good faith, and if the parties agree that a refund is appropriate, the SaaS Term shall remain in full force and effect.

7.4. Effect of Termination. In the event of termination by Client for convenience, Client shall pay all fees due through the effective date of termination. In the event of termination by Benchmark for material breach by Client, Client shall pay any fees incurred through the date of termination, and if early termination results in unrecouped onboarding/customization costs, such amounts may be invoiced on a pro-rata basis. Both parties acknowledge that this payment represents a reasonable estimate of Benchmark’s damages in the event of an early termination. In the event of termination of the SaaS Term for any reason, Client’s access and use of the Software shall cease immediately and the provisions of Sections 14, 17, 18 and 19 shall survive.

8. MAINTENANCE WINDOWS

Benchmark may perform system maintenance during the following “Maintenance Windows”, and Benchmark will announce all planned upgrades and outages in advance as follows:

1. 8.1 “Security Maintenance Window” – Nightly between 12 a.m. and 5 a.m. U.S. Eastern Time with twelve (12) hours advance notice for application of frequently distributed security updates as provided by operating system, network, and firewall vendors,
2. 8.2 “System Maintenance Window” – Saturday mornings between 12 a.m. and 7 a.m. U.S. Eastern Time with seventy-two (72) hours advance notice,
3. 8.3 “Upgrade Window” – Saturday morning between 12 a.m. and 12:00 noon U.S. Eastern Time with fifteen (15) days advance notice.
   1. 8.3.1Maintenance Windows start and end times specified herein may be amended to within two hours, with the same duration, provided Benchmark has given seven days advance notice to Client. Notifications of planned system maintenance shall be delivered to Client’s primary contact (designated per Section 15 below) via electronic mail. Client understands and agrees that there may be instances where Benchmark needs to interrupt access to the Software without notice in order to protect the integrity of the Software or Services due to security issues, virus attacks, spam issues, or other unforeseen circumstances.

9. SUPPORT

Benchmark will provide online and e-mail support to Client during the SaaS Term as described in Benchmark’s SaaS Scope of Support, a copy of which can be found below.

Benchmark Product Support Hours:
Available 8:30 a.m. to 5 p.m. EST, Monday through Friday, excluding holidays. Support is not available after 3 p.m. EST the day before Thanksgiving, Christmas Eve, and New Year’s Eve.

Support outside of these hours is only provided for down or mission critical cases. For example:

• Unable to access software
• Unable to track activities and export reports

You may access your support resources in any of the following ways:

• Phone: 1-212-235-4000
• Email: [email protected]

Benchmark Product Support will assist you with the following types of issues:

• Detailed system recommendations for Benchmark software
• Problems with or questions about the operation of Benchmark software or data services
• Error messages that occur when Benchmark software is running
• Questions about built-in reports, including where to find them, how to print them, and if and how they can be changed

Additional Billable Support Services

Within this scope of additional billable support services, the support team cannot create, edit, or modify software, web page, or content at your request. We offer billable services to help you with these types of requests. For more information, email [email protected].

10. SUSPENSION OF SERVICES

Benchmark may suspend access to the Software, in whole or in part, upon notice to Client if:

1. Client fails to make any undisputed payment within fifteen (15) days of the due date;
2. Benchmark reasonably suspects a material breach of this Agreement or security risk; or
3. Required by law or government authority.

Benchmark will work in good faith to provide notice before suspension and to restore access once the issue is resolved. Suspension will not relieve Client of its payment obligations.

11. UPGRADES

1. 11.1. Minor Upgrades

   Benchmark will install minor upgrades/releases of the Software, which are generally made available to its other clients, including patches and/or fixes, as they are made available at no charge during the SaaS Term. Benchmark will determine and announce all planned upgrades as described in Section 9 of these Terms and Conditions.

2. 11.2. Major Upgrades

   Upgrades to major releases (e.g. 4.x to 5.x) and related conversions require careful planning and data decisions that must be managed jointly by Client and Benchmark, and may require the engagement of Benchmark consulting services which will be contracted via separate agreement.

   Additional services related to conversions to major releases (e.g. data conversion, report and software customizations, data cleanup) are outside the scope of the Services and these Terms and Conditions.

12. CLIENT PRIMARY CONTACT

Client shall identify, and name, an appropriate individual, with corresponding contact information, including electronic mail address, as the “Primary Contact” with whom Benchmark should communicate matters regarding the Software and Services, such as maintenance notifications, and who has the authority to make Services requests including release of Client data, both internally to Benchmark and to the Client, restoration of data, and other configuration changes.

By default, the individual who signs the ATL becomes the Primary Contact.

13. CLIENT RESPONSIBILITIES

Client will retain responsibility for administering security within the Benchmark application (e.g., the granting of rights to a user for a specific function in the application). Client is responsible for ensuring that its users comply with these Terms and Conditions with respect to use of the Software and Services.

Benchmark shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Client in accessing the Internet to access the Software.

Client shall provide accurate input information in the manner reasonably prescribed by Benchmark in connection with the Software and Services provided under these Terms and Conditions.

Client shall advise Benchmark of any changes to Client’s operations, Primary Contact, or other information that would require a change in the support, operation, or configuration of the hosted Software.

Client shall configure necessary user accounts via the administrator account provided by Benchmark. Client shall be responsible for establishing any merchant accounts necessary for credit card transactions, if applicable.

Client shall be responsible for ensuring that any Client Content is accurate, not corrupt in any way, and does not contain any viruses.

14. INTELLECTUAL PROPERTY RIGHTS

Client agrees that the Software and Services are proprietary products and services and that all right, title and interest in and to the Software and Services, including all associated intellectual property rights, are and shall at all times remain with Benchmark and its third party licensors.

15. COPYRIGHT AND TRADE SECRETS

The Software contains trade secret and proprietary information owned by Benchmark or its third party licensors and is protected by United States copyright laws and international trade provisions. Client must treat the Software like any other copyrighted material and Client may not copy or distribute the Software, electronically or otherwise, for any purpose. Client hereby grants to Benchmark a nonexclusive right to use all Client Content as necessary solely for the purposes of providing the Software and Services to Client and its authorized users pursuant to these Terms and Conditions.

16. OTHER RESTRICTIONS

Use of the Software and Services is restricted to use by the specific licensing entity only, “[CLIENT NAME] Employees or Appointed Administrators,” “[CLIENTNAME]’s Clients,” and “” as defined in Section 5 of this Terms of Service. Client may not use the Software for the benefit of any third parties or provide service bureau or other access or use of the Software to third parties. Client may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Software, Services (or any portion thereof, including without limitation any capacity) to any third party, and any attempt to do so is null and void. Client may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software. Software and Client Content shall not be used for any commercial purpose beyond the functionality driven by the Software. Except as may be permitted in section 5 consistent with Benchmark’s permissions for the Secure Client Space product, you hereby agree, represent and warrant to Benchmark that you will not access or use the Web Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. Client will not use the Software, Services or Benchmark software to take any actions that (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation (including those regarding export control); (iii) co-brand this Web Site. For purposes of these Terms, “co-branding” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give the impression that such other party has the right to display, publish, or distribute this Web Site or content accessible within this Web Site; (iv) frame this Web Site; (v) Create or build any derivative works from any information, content, software, products or services obtained from or otherwise connected to Benchmark’s software; or (vi) Distribute, transfer or resell the results of your use of this Web Site. Client shall not interfere with or disrupt network users, services or equipment with the intent to cause an excessive or disproportionate load on Benchmark’s infrastructure. Client will comply with the Acceptable Use Policy (AUP) of Benchmark found at www.benchmark-app.com/aup. Benchmark may, in its discretion, revise these service use restrictions upon thirty (30) days’ prior notice to Client.

17. DATA AND PRIVACY

Benchmark’s data practices are governed by its Privacy Policy and Cookie Policy, available at www.benchmark-app.com/privacy and /cookie. These policies are incorporated by reference into this Agreement.

18. DISCLAIMERS

Any written or oral information or representations provided by Benchmark agents, employees, resellers, consultants or service providers with respect to the use or operation of the Software will in no way increase the scope of Benchmark’s warranty. Benchmark and its suppliers exercise no control whatsoever over the content of the information passing through their systems. Client and users must exercise their own due diligence before distributing and/or relying on information available on the Internet, and must determine that they have all necessary rights to copy, publish, or otherwise distribute such information under copyright and other applicable laws. Neither Benchmark nor its suppliers will be liable for any consequences of providing email services, including those suffered as a result of delivering or accessing information or content, such as accessing information with offensive, inaccurate or inappropriate content, the possibility of contracting computer viruses, or unauthorized access to or alteration, theft, or destruction of any data, files, programs, procedures, or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of Benchmark’ or its suppliers’ negligence. BENCHMARK DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. BENCHMARK EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER BENCHMARK EXPRESSLY EXCLUDES ANY WARRANTY OF NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.

19. CONFIDENTIAL AND PROPRIETARY INFORMATION

Definition. The term “Confidential Information” shall mean: (i) any and all information which is disclosed by either party to the verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of theServices and any proposals or other documents that preceded these Terms and Conditions. Confidential and Proprietary Information may include, but not be limited to, documents loaded into the benchmark application including Employee information (individual name, address, and contact information), Confidential documents, product information, accounts information, and financial data.

20. CLIENT DATABASE FILE

Client authorizes Benchmark to view and edit data without notification for all work performed. Clients have the right and responsibility to export all confidential and proprietary information before the expiration of their term. Benchmark has no responsibility to hold or store data past the expiration of the Client’s term.

SURVIVAL. The terms of this Section 21 shall survive termination of the SaaS Term.

21. INDEMNITY

By Benchmark. Benchmark shall indemnify and defend Client against any third party claims that the Software or other Work Product (defined below) made available to Client by Benchmark infringe any United States or Canadian patent or copyright during the SaaS Term, provided that Benchmark is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim relating to infringing Software or other Work Product, Benchmark shall, in its reasonable judgment and at its option and expense: (i) obtain for Client the right to continue using the Software or other Work Product; (ii) replace or modify the Software or other Work Product so that it becomes non-infringing while giving substantially equivalent functionality; or (iii) if Benchmark determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the SaaS Term. Benchmark shall have no liability to indemnify and defend Client to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client; (ii) the alleged infringement is the result of a modification made by anyone other than Benchmark; or (iii) Client uses the Software or other Work Product other than in accordance with these Terms and Conditions or any documentation delivered by Benchmark. This Section states Benchmark’s entire liability and Client’s sole and exclusive remedy for claims relating to infringement.

By Client. Client shall indemnify and defend Benchmark against any claims (i) resulting from the use of the Software, Work Product or Services; (ii) that any Client Content (including without limitation content provided by Client for inclusion on a donation site) infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) arising from or relating to Client’s or its users’ failure to comply with these Terms and Conditions.

Mutual Indemnity. Each party (“Indemnifying Party”) shall indemnify and hold the other party (“Indemnified Party”) harmless against any third party claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or failure to act by the Indemnifying Party, its employees or agents, while performing its obligations under these Terms and Conditions, which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defense of such action, and sole authority to defend or settle such claim.

SURVIVAL. The terms of this Section 22 shall survive termination of the SaaS Term.

22. LIMITATION OF LIABILITY

EXCEPT FOR THE INDEMNIFICATION FOR THIRD PARTY CLAIMS PROVIDED IN SECTION 18, BENCHMARK’S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THESE TERMS AND CONDITIONS, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT, CONTRACT OR OTHER FORM OF LIABILITY, SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT DURING THE ONE-YEAR PERIOD PRECEDING NOTICE TO BENCHMARK OF CLIENT’S LOSS. IN NO EVENT SHALL BENCHMARK BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOOD WILL, BUSINESS INTERRUPTION, COST OF COVER, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF BENCHMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BENCHMARK SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN THE EVENT OF ANY LOSS OR INTERRUPTION IN SOFTWARE ACCESS DUE TO CAUSES BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS LOSS, INTERRUPTION OR FAILURE OF TELECOMMUNICATIONS OR DIGITAL TRANSMISSIONS AND LINKS, INTERNET SLOWDOWN OR FAILURES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CLIENT.

23. SOFTWARE MODIFICATIONS

Client shall not make any modifications to the Software. Any modifications made by Client will void any warranty obligations contained in these Terms and Conditions.

24. RIGHTS TO WORK PRODUCT

Any expression or result of Benchmark’s Services, such as findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software (object code only), and other technical information (collectively “Work Product”) created by Benchmark in the course of performing the Services hereunder are the property of Benchmark and are licensed to Client, without further license fees, pursuant to the license in these Terms and Conditions, provided, however, Work Product does not include, and Client shall retain title to (i) Confidential Information of Client, (ii) all Client Content, including without limitation all proprietary rights of Client. Client shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.

25. INDEPENDENT CONTRACTOR STATUS

Benchmark performs the Services as an independent contractor, not as an employee of Client. Nothing in these Terms and Conditions shall be construed as creating a partnership, joint venture, or agency relationship between Client and Benchmark.

26. NOTICES

All notices or other communications referenced under these Terms and Conditions shall be made in writing and sent to “Attention: General Counsel” at Benchmark’s address designated above and to Client’s address set forth in the ATL, or to the address otherwise designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized courier delivery; or electronic mail.

27. AUDIT RIGHTS

Benchmark shall have the right to audit Client’s use of the Software and compliance with these Terms and Conditions at Client’s premises from time to time in Benchmark’s sole discretion. Client agrees to permit Benchmark to have access to its facilities and personnel during normal business hours for the purpose of conducting such audits. In the event such audit reveals Client is exceeding the scope of use permitted by these Terms and Conditions, then Client shall pay Benchmark’s additional fees for such use (at the then-current list price) and reimburse Benchmark for the costs of the audit.

28. GOVERNING LAW AND FORUM SELECTION

These Terms and Conditions shall be governed by the laws of the State of New York, excluding its choice of law principles. Any disputes or claims arising from these Terms and Conditions shall be submitted to and resolved exclusively by the Federal or State Courts of New York.

29. ASSIGNMENT

These Terms and Conditions shall not be assigned by either Party without the prior written consent of the other; except that either Party may assign its rights and delegate its obligations hereunder in cases in which the ATL is also assigned to any Affiliate or in connection with a merger, acquisition, spin-out or other transfer of all or substantially all of the business, stock or assets to which these Terms and Conditions relate, provided such assignee agrees in writing to be bound by these Terms and Conditions. Further, either party may assign its rights and obligations to an affiliate, or in connection with a merger, acquisition, or sale of substantially all assets, upon written notice. Any attempted assignment in violation of this provision shall be null and void. From and after the making of any such assignment and delegation by the assignor, the assignee shall be substituted for the assignor as a Party hereto and the assignor shall no longer be bound hereby. Subject to the foregoing, these Terms and Conditions are binding upon, inure to the benefit of, and are enforceable by the Parties hereto and their respective successors and assigns.

30. MISCELLANEOUS

Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. If any provision of these Terms and Conditions is held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of these Terms and Conditions will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches. These Terms and Conditions and the ATL together set forth the entire agreement between the parties with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby.