Subscriber Agreement

BY CLICKING ON THE “I ACCEPT” BUTTON (located on the account set up page) OR BY USING OR OTHERWISE EXERCISING ANY RIGHTS PROVIDED BELOW TO USE THE ASTI CONTENT (AS DEFINED BELOW) OFFERED BY THE AMMONIA SAFETY AND TRAINING INSTITUTE, (“ASTI”), INCLUDING, FOR EXAMPLE, BY ACCESSING OR USING THE ASTI CONTENT, THIS ENTITY, INDIVIDUAL OR ORGANIZATION (“CUSTOMER”) CONSENTS TO BE BOUND BY THIS AGREEMENT, OR, IF APPLICABLE, BY THE TERMS OF A CURRENTLY EFFECTIVE WRITTEN AGREEMENT REGARDING THE USE OF THE PRODUCT AND SIGNED BY AN AUTHORIZED AGENT OF CUSTOMER AND BY ASTI.

1. LICENSE.

1.1 License. During the License Term defined below, ASTI grants to Customer a non-exclusive, nontransferable, non-sublicensable license to use the ASTI Content for Customer’s internal business purposes for the scope set forth on an order form executed by Customer and ASTI or ASTI’s authorized reseller, including an online document or marketplace representing any of the foregoing (each, a “ASTI Order Form). “ASTI Content” means ASTI’s proprietary training materials.

1.2 Restrictions. Customer shall not authorize any third party to:

     (a) sublicense, use or duplicate the ASTI Content, or any portion thereof, except as expressly authorized in this Agreement;

     (b) use the ASTI Content by, or for the benefit of any third party;

     (c) modify, translate, or prepare derivative works based upon the ASTI Content; and/or

     (d) rent, lease, loan, sell, transfer, or distribute the ASTI Content or any copy or portion thereof, to any other person or entity;

     (e) alter, remove, or obscure any copyright, trademark, or other proprietary notices or confidentiality legend on or in the ASTI Content. Except for the license expressly granted by ASTI to Customer under this Content License Agreement, ASTI reserves all right, title and interests in and to the ASTI Content and any derivative works thereof, and all intellectual property rights therein. Customer shall be responsible and liable for any action or inaction of any individual who obtains access to the ASTI Content as a result of Customer’s acts or omissions.

2. CONSIDERATION. The Fee for the ASTI Content during the License Term shall be as set forth on the ASTI Order Form. ASTI or its authorized reseller may change the Fee for any renewal of the License Term by providing Customer notice. Except as otherwise set forth in a ASTI Order Form, all fees paid under this Content License Agreement (collectively “Fees”) shall be payable in U.S. dollars and are due within thirty (30) days of the invoice issued by ASTI or its authorized reseller. Excluding taxes based on ASTI’s income, Customer is liable for all taxes, duties and customs fees associated with the Fees, whether or not ASTI or its authorized reseller invoices Customer for those taxes, duties or customs fees. Past due accounts shall be charged interest on a monthly basis, calculated at one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. Except as otherwise expressly provided in this Content License Agreement, Customer shall not be entitled to any refund of any Fees paid for the ASTI Content.

3. TERM AND TERMINATION. The term of this Content License Agreement shall commence on the earlier of the date this Content License Agreement is accepted by the Customer or the date Customer installs or otherwise accesses the ASTI Content (the “Effective Date”) and shall continue for the term set out on the ASTI Order Form or, if the parties have not executed a ASTI Order Form, for 30 days (the “License Term”). Upon the expiration of the License Term, this Content License Agreement will automatically renew at the end of the License Term for an additional License Term of twelve (12) months subject to ASTI’s then-current terms and conditions unless either party provides the other notice of its intent not to renew at least sixty (60) days before the end of the then-current License Term. If the ASTI Content is provided for evaluation purposes, this Content License Agreement will terminate upon the expiration of the License Term unless the parties expressly agree otherwise. This Content License Agreement may be terminated by either party:

     (a) upon ten (10) days written notice if the other party materially breaches any provision of this Content License Agreement and the breach remains uncured within that ten (10) day period; or

     (b) effective immediately, if the other party ceasesto do business, or otherwise terminates its business operations; or

     (c) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any proceeding of that nature is filed against it; or

     (d) immediately, upon any breach of Section 1.2 or Section 7 of this Content License Agreement. Upon any expiration or termination of this Content License Agreement: (x) all licenses, and rights granted by ASTI to Customer hereunder shall terminate; and (y) Customer will cease all use of the ASTI Content; and (z) and
Customer shall immediately return to ASTI the ASTI Content and any ASTI Confidential Information. The provisions of Sections 1.2, 2, 3, 4, 6, 7 and 8 shall survive and remain effective after the effective date of termination or expiration of this Content License Agreement.

4. INDEMNIFICATION.

4.1 Indemnification by ASTI. ASTI shall defend Customer (including payment of attorneys’ fees, expert fees, and court costs) from any third party claims that the ASTI Content infringes any patent, copyright or other proprietary right and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle claims. If Customer’s use of the ASTI Content and/or the ASTI Solution is (or in ASTI’s opinion is likely to be) enjoined, ASTI may terminate this Content License Agreement and Customer’s right to use the ASTI Content and the ASTI Solution. ASTI shall have no obligations under this Section to the extent any infringement claim is based on: (a) any modification or alteration to the ASTI Content or the ASTI Solution not made by ASTI; (b) any combination or use of the ASTI Content or the ASTI Solution with products or services not approved by ASTI in writing; (c) Customer’s continuance of allegedly infringing activity after being notified thereof; and/or (d) use of the ASTI Content or the ASTI Solution not in
accordance with the terms of this Content License Agreement. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and ASTI’s entire liability, with respect to infringement or misappropriation of third-party intellectual property.

4.2 Indemnification by Customer. Customer shall defend ASTI (including payment of attorneys’ fees, expert fees and court costs) from any third-party claims arising out of any breach by Customer of this Content License Agreement or any claims that any Customer Data infringe or violate any laws or regulations or any third-party intellectual property or other proprietary rights.

4.3 Conditions of Indemnification. Each party’s indemnification obligations under this Section 4 are conditioned on

     (a) prompt written notice of any claim;

     (b) the ability to control and direct the defense or settlement of any claim; and

     (c) all reasonable assistance in connection with the defense or settlement of any claim.

5. WARRANTY. ASTI warrants during the License Term that the ASTI Content is of a professional quality, conforming to generally accepted industry standards and practices for similar materials. Customer’s sole remedy and ASTI’s sole liability for a breach of the foregoing will be for ASTI to remedy the non-conformity or, if ASTI is unable to do so, to terminate this Content License Agreement and refund any prepaid unused fees paid by Customer hereunder. The warranties in this Section 5 do not cover non-conformances due to any modification, reconfiguration or maintenance of the ASTI Content performed by anyone other than ASTI. ASTI shall be responsible under this Section 5 only if Customer provides ASTI with a written warranty claim detailing the non-conformance in the ASTI Content within thirty (30) days of the non-conformance.

6. DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ASTI CONTENT, THE ASTI SOLUTION AND ANY MATERIALS OR SERVICES PROVIDED BY ASTI ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR ASTI’S OBLIGATIONS UNDER SECTIONS 4 AND 5 OF THIS CONTENT LICENSE AGREEMENT,

     (A) CUSTOMER’S SOLE REMEDY AND ASTI’S SOLE LIABILITY FOR ANY BREACH OF THIS CONTENT LICENSE AGREEMENT SHALL BE TO TERMINATE THE AGREEMENT, CEASE ALL USE OF THE ASTI CONTENT AND IMMEDIATELY RETURN TO ASTI THE ASTI CONTENT AND ALL DUPLICATES, AND ANY ASTI CONFIDENTIAL INFORMATION;

     (B) IN NO EVENT SHALL ASTI BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING LOST PROFITS
OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR COSTS; AND

     (C) IN NO EVENT WILL THE AGGREGATE LIABILITY OF ASTI OR ANY OF ITS THIRD-PARTY LICENSORS (UNDER ANY THEORY OF LIABILITY) EXCEED ONE HUNDRED DOLLARS ($100), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.

7. CONFIDENTIAL INFORMATION. Customer acknowledges that it may receive from ASTI confidential information relating to ASTI. That information shall belong solely to ASTI and includes, but is not limited to, the terms of this Content License Agreement and other technical, business, marketing and financial information, and any data not previously known that could reasonably be considered confidential or proprietary (“Confidential Information”). Confidential Information shall not include information which:

     (a) is already known to Customer prior to disclosure by ASTI;

     (b) becomes publicly available without fault of Customer;

     (c) is rightfully obtained by Customer from a third party without restriction as to disclosure; or

     (d) is approved for release by written authorization of ASTI. During and after the term of this Content License Agreement, Customer shall:

     (e) not use (except as expressly authorized by this Content License Agreement) or disclose Confidential Information without the prior written consent of ASTI; and

     (f) take all reasonable measures to maintain the Confidential Information in confidence. Information shall not be deemed confidential if it becomes public without breach of this Content License Agreement by Customer. The ASTI Content and all technical information relating thereto shall be considered Confidential Information of ASTI. Customer may disclose Confidential Information to the extent required by law, provided that Customer gives ASTI reasonable advance notice of the required disclosure and the opportunity to obtain appropriate confidential treatment for the Confidential Information. ASTI may disclose aspects of this Content License Agreement to its licensors to the extent required under the agreement with the licensor. ASTI will be free to use any data, metadata and information it so collects relating to the ASTI Content and may allow others to do so.

8. GENERAL:

8.1 Compliance with Laws; Export Control. Customer shall use the ASTI Content in compliance with all applicable laws, statutes, rules and regulations. Except as expressly permitted in this Content License Agreement, Customer shall not export or import the ASTI Content (including any Documentation) or any technical information provided under this Content License Agreement.

8.2 Assignment. Neither this Content License Agreement, nor any rights, licenses nor any obligations hereunder, may be assigned by Customer without the prior written consent of ASTI. Any attempted assignment in violation of this Content License Agreement shall be void and without effect.

8.3 U.S. Government End-Purchaser. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all ASTI Content and accompanying documentation provided by ASTI are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.

8.4 Marketing. Customer consents to ASTI’s use of Customer name and logo and general description of Customer’s relationship with ASTI in press releases and other marketing materials and appearances. Customer agrees to receive marketing communications and other solicitations and materials from ASTI, as determined by ASTI in its sole discretion.

8.5 Miscellaneous. Should any term of this Content License Agreement be declared void or unenforceable by any court of competent jurisdiction, that provision shall be modified, limited, or eliminated to the minimum extent necessary and the declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. This Content License Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, excluding rules governing conflict of law and choice of law. The federal and state courts within Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Content License Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, those courts and service of process being affected upon it by registered mail sent to the address set forth at the beginning of this Content License Agreement in the case of ASTI, and by registered mail to any address provided by Customer to ASTI in the case of Customer. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to this Content License Agreement. This Content License Agreement sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained in this Content License Agreement shall have any force or effect. Customer’s representative identified herein represents and
warrants that he/she has the authority to bind Customer to the terms herein. This Content License Agreement may be amended only upon the written consent of both parties. In the event the parties enter into, or have entered into a formal written agreement, including, without limitation an agreement which the parties have electronically signed, the terms of that agreement shall control over the terms of this Content License Agreement.