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Fishbowl Solutions

Software Subscription
Terms and Conditions

Last updated: May 3, 2024

Please read these fishbowl software subscription terms and conditions (the “Agreement”) carefully before using the services offered by Fishbowl Solutions, LLC, a Utah limited liability company (“Fishbowl”). By executing the Order Form (as defined below) which incorporates the terms of this Agreement, Customer (as defined below) consents to be bound by and to become a party to the Agreement to the exclusion of all other terms. If the person executing an order form on behalf of Customer is entering into the Agreement on behalf of a company or other legal entity, such person represents that he or she has the authority to bind such entity to the Agreement. Fishbowl and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. Subject to the terms and conditions of this Agreement, the Parties agree as follows:

1 Definitions

1.1 “Cloud Version” means the version of a Software Product made available to Users through the internet.

1.2 “Customer” means the purchasing entity identified on the Order Form.

1.3 “Date Purchased” means the purchase date or effective date identified on the Order Form.

1.4 “Desktop Version” means the version of a Software Product that works outside the browser, as a standalone application.

1.5 “Documentation” means the user guides and manuals for installation and use of a Software Product that Fishbowl makes generally available.

1.6 “Equipment” means the Fishbowl hardware designated in a relevant Order Form, which Customer is purchasing pursuant to this Agreement.

1.7 “Fishbowl Services” means Products, Support, Training, and related services, licensed or purchased pursuant to this Agreement and the relevant Order Form.

1.8 “Hosted Services” means the Cloud Server/Hosting services designated in a relevant Order Form, which Customer is purchasing pursuant to this Agreement.

1.9 “Intellectual Property Rights” means Fishbowl’s or its licensors’ patent, copyright, trademark, trade secret and any other intellectual property rights.

1.10 “Order Form” means the standard Fishbowl form used for placing orders of Fishbowl Services, executed by Customer.

1.11 “Products” means Software Products, Hosted Services and Equipment licensed or purchased pursuant to this Agreement and the relevant Order Form.

1.12 “Software Product(s)” means software products owned or licensed by Fishbowl to which Fishbowl grants, if Desktop Version, a software license to download, install and use such Software Products in object code form only, or, if Cloud Version, the right to access and use, including Documentation and Updates, subject to the terms of the applicable Order Form(s) and this Agreement.

1.13 “Subscription” means a subscription to the Software Products identified on the Order Form.

1.14 “Subscription Term” means the term of a Subscription as set forth in the applicable Order Form.

1.15 “Support” means certain support, maintenance, installation, implementation and related services made available by Fishbowl for applicable Products, or as designated in a relevant Order Form purchased by Customer.

1.16 “Training” means the training services designated in a relevant Order Form, which Customer is purchasing pursuant to this Agreement.

1.17 “Update” means a current release of the Software Product, which Fishbowl makes generally available for Subscriptions purchased by customers, unless otherwise set forth in this Agreement. Updates will not include any release, option, or future product that Fishbowl separately licenses.

1.18 “Usage Limits” means usage parameters set forth in an Order Form, including concurrent or named User restrictions, as applicable.

1.19 “User” means any person who is affiliated with Customer as (a) a full-time or part-time employee, or (b) a full-time or part-time consultant.

2 Term

2.1 This Agreement is valid so long as an Order Form or a license or Subscription granted therein is in effect. The initial Subscription Term of the Software Products and Hosted Services procured by Customer shall be as set forth in the relevant Order Form. Except as otherwise specified in an Order Form, the Subscription Term shall automatically renew for successive terms equal to the initial Subscription Term specified in the Order Form (“Renewal Term”) unless either Party gives the other notice of non-renewal at least sixty (60) days prior to the end of the relevant Subscription Term.

3 Fishbowl Services

3.1 Order Form. Fishbowl shall make the purchased Fishbowl Services available to Customer pursuant to this Agreement and the relevant Order Forms, unless earlier suspended or terminated in accordance with this Agreement.

3.2 Unless otherwise specified in this Agreement or an Order Form, any changes to an Order Form must be mutually agreed upon by the Parties in writing and, if agreed by the Customer, may require a change in fees.

3.3 Subscriptions. Software Products and Hosted Services are provided on a subscription basis and will be made available during the applicable Subscription Term specified in the relevant Order Form, except as expressly provided herein. Customer agrees that purchases made hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Fishbowl regarding future functionality or features. Unless otherwise specified in the relevant Order Form, (a) Software Products are purchased as Subscriptions and are subject to Usage Limits set forth in an Order Form, (b) additional Subscriptions may be added during the applicable Subscription Term at the same pricing as that for the pre-existing Subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional Subscriptions are added, and (c) the added Subscriptions shall be subject to the same terms and conditions applicable to the pre-existing Subscriptions.

3.4 Custom Services. For custom reports, custom plugins, and custom services of any type provided by Fishbowl, Fishbowl will provide a scope of work which will set forth all applicable details. All payments due under the scope of work must be paid in full before any work begins. Fishbowl will own the rights to any custom deliverable and can redistribute it at its discretion. All custom deliverables are governed by the license and subscription terms of this Agreement. Customers cannot redistribute the deliverable.

4 Provision of Fishbowl Services

4.1 Software Products and Hosted Services. Desktop Versions will be made available for download, and access to the Cloud Versions and Hosted Services will be provided through the internet, to Customer, subject to Usage Limits, if applicable, in each case, upon receipt of payment of applicable fees as specified in an Order Form.

4.2Equipment. Equipment provided hereunder will be shipped to the Customer address designated in the relevant Order Form upon receipt of payment of applicable fees specified in an Order Form. Fishbowl will make commercially reasonable efforts to ship Equipment in a timely manner. Fishbowl’s delivery dates and quantities are subject to change based on vendor availability and timelines. Delay in delivery or other failure to deliver any part of Customer’s order shall not relieve Customer of its obligation to accept and pay for prior or remaining portions of Customer’s order. In order to accommodate potential uncertainty in transport times and other potential delays, Fishbowl reserves the right to make shipments in installments. Fishbowl shall have no liability to Customer for any costs or damages related to delays in Customer’s delivery that are beyond Fishbowl’s reasonable control.

5 Fees and Payment Terms

5.1 Fees and Charges. Customer agrees to pay all fees and charges specified on an applicable Order Form. The rates in the applicable Order Form are valid for the Subscription Term set forth in the Order Form and subject to applicable Usage Limits. Except as otherwise specified herein or in an Order Form, (i) fees are based on Subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the relevant Order Form.

5.2 Payment Terms. All fees payable hereunder are due as specified in an Order Form. Fees may be payable in one-time or periodic payments, as set forth on an Order Form.

5.3 Payment by Credit Card. To the extent Fishbowl accepts credit card payments for any of the Fishbowl Services, as specified on an Order Form, Customer will provide Fishbowl with valid and updated credit card information and Customer hereby authorizes Fishbowl to charge such credit card for such Fishbowl Services for the applicable Subscription Term (including any renewals). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Customer is responsible for providing complete and accurate billing and contact information to Fishbowl and notifying Fishbowl of any changes to such information.

5.4 Late Payments. Any amounts payable by Customer hereunder that remain unpaid after the due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate allowable by law from the due date until such amount is paid. Customer agrees to reimburse Fishbowl for reasonable legal fees and any other reasonably incurred costs associated with collecting delinquent payments. If any payment due under this Agreement is thirty (30) or more days overdue, Fishbowl may, without limiting its other rights and remedies, accelerate the unpaid fee obligations so that all such obligations become immediately due and payable, and/or suspend all or part of the Fishbowl Services until such amounts are paid in full and/or terminate the Agreement or applicable Order Form. Fishbowl will provide at least ten (10) days’ prior notice that the account is overdue before suspending or terminating Fishbowl Services if payment is not made in that time period.

5.5 Good Faith Dispute. If there is a good faith dispute with regard to a portion of an Order Form, Customer will provide notice and detail of the dispute prior to the payment due date, and will pay the undisputed portion as provided in this Agreement. Upon resolution of the dispute, any disputed amounts owed to Fishbowl will be paid within [seven days].

5.6 Fees and Expenses for On-Site Training/Implementation: For on-site training and implementation provided by Fishbowl personnel as specified in an Order Form, all normal and reasonable travel expenses will be included in the cost of the on-site training. These expenses include airfare, lodging, and rental car expenses. Food and other incidental travel expenses incurred by Fishbowl personnel are also included in the training fees unless otherwise specified in the Order Form. Should Customer elect to cancel or alter the travel arrangements for on-site training or implementation once travel arrangements have been purchased by Fishbowl, Customer will pay Fishbowl the lesser of $1,000.00 or the amount of costs actually incurred to cover any incurred costs associated with cancelling or altering such travel arrangements. Should Customer elect to cancel or alter the scheduled date of the on-site training prior to travel arrangements being purchased by Fishbowl, Customer will pay Fishbowl the lesser of $500.00 or the amount of costs actually incurred to cover any incurred costs associated with cancelling or altering the scheduled date of training. If Customer requires specific times and dates of travel or otherwise has specific needs that require Fishbowl to incur expenses outside of the typical costs incurred in travel, Customer will reimburse Fishbowl for all such reasonably incurred additional expenses upon receipt of invoice.

6 Taxes

6.1 All fees payable under this Agreement are exclusive of taxes. Customer will pay or reimburse Fishbowl for all value-added, sales, use, property and similar taxes, and all other mandatory payments to government agencies of whatever kind imposed with respect to products or services provided by Fishbowl under this Agreement or with respect to transactions under this Agreement, except taxes imposed on the net income of Fishbowl. If a transaction is exempt from tax, then Customer will provide Fishbowl with a valid exemption certificate or other evidence of such exemption in a form acceptable to Fishbowl.

7 Rights Granted; Restrictions

7.1 Right to Use. For the duration of the Subscription Term, subject to the terms and conditions of this Agreement, and in consideration of the payment of fees set forth on the applicable Order Form, Fishbowl hereby grants to Customer and its Users (subject to applicable Usage Limits), a non-exclusive, non-transferable, limited license or right to access and use, as applicable, the Software Products specified on an Order Form, for Customer’s own internal business operations.

7.2 Desktop Version Restrictions.

(a) Multiple Users. If Customer is licensing the Desktop Version for multiple Users as specified in the Order Form, then Fishbowl grants Customer the right to install the server portion of such Desktop Version on a single server for use concurrently by up to that number of specified Users. Prior to installing the server portion of the Desktop Version on any other computer, Customer must first uninstall it from the original computer. Customer may copy the client portion of the Desktop Version on an unlimited number of computers owned and controlled by Customer, so long as the number of Users concurrently using such Desktop Version does not exceed the number specified in the Order Form.

(b) Copies. Customer may also make one (1) copy of the Desktop Version for archival or backup purposes, and may make a sufficient number of copies for the intended use described in the Documentation, provided that all titles and trademark, copyright and restricted rights notices are reproduced on all such copies. Customer shall use such Desktop Version licensed under this Agreement only on computers which are either (a) owned or leased by Customer or (b) controlled by Customer. Customer shall maintain records of each copy it makes of such Desktop Version and the location of such copy. Fishbowl retains all title and ownership rights to the Desktop Version, including all copies duplicated by Customer under this Agreement. Customer will not copy or use the Desktop Version except as expressly permitted by this Agreement.

(c) Transfer. If the Equipment with any Desktop Versions is sold or assigned to a third party, Customer will remove all Desktop Versions from such Equipment prior to delivery to the third party. Fishbowl may grant the new owner or assignee a license to the relevant Desktop Version, provided that the new owner or assignee agrees to Fishbowl’s then-current Software Product license terms and conditions (including Fishbowl’s then-current fees) and such other terms as Fishbowl may reasonably require.

(d) Access by Fishbowl. Customer may request that Fishbowl log into or otherwise access the Customer’s instance of the Software for limited purposes including customer support or implementation services. Fishbowl’s access to Customer’s instance for such limited purposes shall not be subject to Software Product or services warranties provided to Customer pursuant to this Agreement. Except as caused by Fishbowl’s willful misconduct or gross negligence during such limited access to Customer’s instance of a Desktop Version, Fishbowl disclaims all, and shall not bear any, liability in connection with such access requested by Customer.

7.3 General Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Unauthorized use, resale, or commercial exploitation of the Fishbowl Services in any way is expressly prohibited. Customer is solely responsible for the accuracy, completeness, and integrity of all Customer Data input into the Software Products or otherwise provided to Fishbowl, and for obtaining any necessary consents or authorizations for use of such Customer Data as contemplated by this Agreement. Customer shall not and shall not allow its Users or any third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Software Products or Hosted Services; (b) access or use the Fishbowl Services in order to (i) build a competitive product or service; or (ii) for the purposes of conducting comparative analyses against other services, evaluations or product benchmarks; (c) copy or reproduce (except as expressly permitted in this Agreement), modify, change, or alter the Fishbowl Services, or any part thereof; or (d) license, sell, transfer, make available, lease, or distribute, the Fishbowl Services to any third-party. In addition to Fishbowl’s other remedies hereunder, Fishbowl reserves the right upon notice to Customer to immediately terminate any User’s right to access the Fishbowl Services if such User has materially breached any of the restrictions contained in this section 7.3.

7.4 Verification. At Fishbowl’s written request, and not more frequently than is reasonable under the circumstances, (a) Customer will verify in writing that any Software Product or Hosted Services is being used pursuant to the provisions of this Agreement and the relevant Order Form, and (b) Fishbowl may audit Customer’s use of the Software Product electronically or at Customer’s facilities. Any such audit at Customer’s facilities will be conducted during regular business hours on reasonable notice to the Customer and no audit will unreasonably interfere with Customer’s business activities. If an audit reveals that Customer has underpaid fees to Fishbowl, then Customer will be invoiced for such underpaid fees.

8 Hosted Services

8.1 Usage. The Hosted Services are designed to meet standard business needs and to provide access to the internet for the Desktop Version. To access the Hosted Services, Customers must possess a valid and fully paid license for the current version of the Software, and Customer must not be in material breach of any terms of this Agreement. Customer’s use of the Hosted Services may not adversely impact the experience of other customers or constitute excess usage of Hosted Services. The Hosted Services are subject to certain usage limitations to prevent excessive or abusive use of the system by customers and users. Such usage limitations are determined by Fishbowl in its reasonable discretion.

8.2 Bandwidth. Fishbowl will make commercially reasonable efforts to provide additional resources to customers who are using the Hosted Services consistent with this Agreement, including moving customers to newer and bigger servers or increasing bandwidth as necessary. However, in order to ensure a consistent and quality experience for all customers, Fishbowl may place safeguards to protect against any customer using excessive bandwidth and/or server resources until Fishbowl can evaluate said customer’s needs and adjust pricing, if necessary.

8.3 Early Termination of Hosted Services. In the event Customer elects to terminate the Subscription Term for Hosted Services purchased under an Order Form, Customer shall provide Fishbowl at least sixty (60) days’ advance written notice of such intent to terminate the Hosted Services at the end of Customer’s then-current Subscription Term by sending an email to Notwithstanding the foregoing, any prepaid fees for Hosted Services are non-refundable.

9 Ownership

9.1 Intellectual Property Rights. As between the Parties, Fishbowl will retain all rights, title, and interest in and to the Intellectual Property Rights in the Fishbowl Services owned or licensed by Fishbowl, and any derivative works thereof (“Fishbowl IP”), subject only to the limited licenses or grants of access set forth in this Agreement. Customer does not acquire any other rights, express or implied, in Fishbowl IP. Fishbowl also shall own all Intellectual Property Rights in any suggestions, enhancement requests, complaints or other feedback from Customer or Users relating to the Fishbowl Services. Fishbowl reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in Fishbowl IP.

9.2 Customer Data. Except as provided below, Customer will retain all rights, title and interest in and to data, information or materials submitted by Customer (or on Customer’s behalf) to Fishbowl or in connection with the Fishbowl Services or collected from Customer’s use of Fishbowl Services (“Customer Data”). Customer will provide Fishbowl access to such Customer Data and grants Fishbowl and its licensors the right to use such Customer Data to provide the Fishbowl Services and to compile statistical and other information related to the performance, operation and use of the Fishbowl Services. Customer also hereby agrees that Fishbowl may (a) aggregate and anonymize Customer Data (“Aggregated Data”) and (b) use, copy, display, create derivative works, store, have stored or hosted, manipulate, aggregate, transmit, and distribute Aggregated Data for benchmarking, normative analysis, testing and otherwise for its business purposes.

10 Support and Updates

10.1 Cloud Version. During the Subscription Term, Fishbowl will provide Fishbowl’s basic Support for the Cloud Version to Customer at no additional charge (and/or upgraded or additional Support if purchased separately) and, Software Product enhancements, Updates, and improvements, when and if developed by Fishbowl. Fishbowl will provide commercially reasonable technical support to Customer, subject to any agreed-upon support terms.

10.2 Desktop Version. (a) For the first twelve (12) months following the date of purchase of the applicable Fishbowl Services, Fishbowl will make available to Customer, at no additional charge, standard Support and, through downloading from Fishbowl’s website, Desktop Version enhancements, Updates, and improvements, when and if developed by Fishbowl. Fishbowl will provide commercially reasonable technical support to Customer, subject to any agreed-upon support terms. (b) At the expiration of the 12 month period set forth above, Customer may purchase a Support package on a subscription basis or may purchase a subscription license for the then-current Software Products which will include Fishbowl’s standard Support during the applicable Subscription Term. (c) Customer acknowledges and agrees that a Desktop Version with expired Support packages previously purchased by Customer (“Expired Software Products”) will not be supported by Fishbowl in any manner under the terms of this Agreement, except as specified in Section 10.2(d) below. (d) In the event Customer fails to purchase or renew a Support package within thirty (30) days of the Support package expiration date, Customer, at its option, may purchase a subscription license for the then-current Software Products which will include Fishbowl’s standard Support during the applicable subscription term.

10.3 Exclusions. Support and Updates services only apply to Software Products and do not include support for items such as hardware, operating system, network, or third-party software or for situations resulting from Customer’s unauthorized use, misuse, misapplication or modification of the Software Products. Support and Updates will only be provided for the current release of a major version of the Software Products.

11 Warranties; Disclaimer

11.1 Fishbowl Warranties. Fishbowl hereby represents and warrants to Customer that: (a) Each Software Product and Hosted Service will perform in all material respects as described in the Documentation, provided that for Desktop Versions this warranty is limited to 12 months from the date the Desktop Version is downloaded by or delivered to Customer; (b) Support, Training and other services provided in connection with the Software Products provided under this Agreement will be performed in a workmanlike manner consistent with generally accepted industry standards; and (c) Fishbowl will use industry-standard precautions to ensure that it does not introduce any viruses, malware or other malicious code into Customer’s systems or websites. Fishbowl, at its sole expense, will use commercially reasonable efforts to try to correct any material non-conformance to the foregoing warranties (but in no way guarantees that it will be able to correct any material non-conformance) after Fishbowl receives written notice from Customer that describes the non-conformance in detail. Fishbowl’s obligations in this clause are expressly subject to: (x) the Fishbowl Services being used in accordance with this Agreement, the applicable Order Form, the Documentation, and any other instructions provided by Fishbowl; and (y) Customer providing written notice to Fishbowl of any alleged breach of the warranty promptly after Customer becomes aware of such breach. Subject to section 11.4, Customer’s exclusive remedies for a breach of Fishbowl’s warranties are as described in this Section 11.1.

11.2 Equipment. The Equipment purchased from Fishbowl by Customer is covered by the original manufacturer’s written warranty, if any, included with the Equipment delivered to Customer. To obtain service under warranty, Customer must return at its own expense the defective Equipment to Fishbowl within thirty (30) days from the date of purchase, by following the “equipment return” guidelines provided by Fishbowl’s Support team at the time of purchase. Equipment must be returned in all its original packaging, and in like-new condition. Subject to section 11.4, there are no Fishbowl warranties applicable to equipment, expressed or implied, including, but not limited to, any implied warranties of merchantability and warranties of fitness for a particular purpose, which are hereby expressly disclaimed.

11.3 Disclaimer. To the maximum extent permitted by law, the warranties in this section 11 are exclusive and are in lieu of all other warranties, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and noninfringement (subject to Fishbowl’s obligations in section 12 below). All warranties that may arise from course of dealing, course of performance or usage of trade are expressly excluded. Fishbowl does not guarantee any specific service result, outcome or time for performance, unless otherwise specified in the relevant Order Form. Customer is responsible for determining which of the Fishbowl Services meets Customer’s particular needs, for installing or using the Software Products, and for the results obtained. Fishbowl does not warrant that the Software Products or the Hosted Services will operate in combination with other hardware, software, systems, or data not provided by Fishbowl, except as expressly specified in the Documentation, or that the operation of the Software Products or the Hosted Services will be uninterrupted or error-free. Customer is responsible for the initial determination of whether a problem is caused by an Equipment or Software Product error; Fishbowl does not provide assistance on general use of the Expired Software Products or problem diagnosis to Customers of Expired Software Products.

11.4 Australian Consumer Law. The Competition and Consumer Act 2010 (Cth) may confer rights, guarantees and remedies on Customer in relation to the provision by Fishbowl of goods and services, which cannot be excluded, restricted or modified. Fishbowl does not exclude, restrict or modify those rights. To the extent permitted by law, Fishbowl’s liability for breach of any consumer guarantee, which cannot be excluded, is limited at the option of Fishbowl to: (a) in the case of services supplied or offered by Fishbowl, resupplying or paying the cost of resupplying the service; or (b) in the case of goods supplied or offered by Fishbowl, replacing the goods, supplying equivalent goods, repairing the goods or paying the cost of replacing the goods or supplying equivalent goods or repairing the goods.

12 Fishbowl’s Infringement Indemnity

12.1 Infringement Indemnity. Fishbowl will indemnify, defend, and hold Customer harmless against any third-party legal action brought against Customer based upon a claim that any Software Product infringes, violates, or misappropriates any patent, trademark, copyright, or trade secret of any third party (“IP Claim”); provided that Customer (a) notifies Fishbowl promptly in writing of any such IP Claim; (b) grants Fishbowl sole control of the defense and settlement of the IP Claim; and (c) provides Fishbowl with reasonable information and assistance, at Fishbowl’s request and sole cost and expense, in connection with the defense or settlement of such IP Claim. Fishbowl agrees to pay all damages and costs incurred by Customer attributable to such IP Claim.

12.2 Exclusions. Fishbowl will have no obligations under Section 12.1 if the IP Claim arises out of or is based upon (a) use of the Software Product outside the scope of this Agreement; (b) use of the Software Product in combination with any product, information, design, specification, instruction, software, data or material not furnished by Fishbowl where such infringement would not have arisen but for such combination; (c) modification of the Software Product by a party other than Fishbowl where such infringement would not have arisen but for such modification; (d) use of other than the current version of a Software Product, if the current version would be noninfringing and had been offered by Fishbowl to Customer; (e) any third-party software, Equipment or other product; or (f) use of an Expired Software Product.

12.3 If a Software Product becomes, or Fishbowl believes is likely to become, subject to an IP Claim, Fishbowl will have the option and right, at its expense, to (a) modify the Software Products to be noninfringing, or (b) obtain for Customer a license or right to continue using the Software Product. If in Fishbowl’s sole judgment it is not commercially reasonable to perform either of the above options, then Fishbowl may terminate any license or right to use applicable to the allegedly infringing Software Product and refund any unused, prepaid fees paid to Customer for such Software Products. This section 12 sets forth Fishbowl’s sole liability and obligations, and customer’s sole remedies, in the event of any claim of infringement or misappropriation of any intellectual property rights by the software products.

13 Additional Indemnities

13.1 Fishbowl Indemnity. Fishbowl will defend, indemnify, and hold Customer harmless against any legal action brought by a third party against Customer based upon a claim that Fishbowl breached its obligations under Section 15 (Confidentiality) or Section 16 (Security; Privacy) or to the extent arising from Fishbowl’s willful misconduct or gross negligence in connection with this Agreement.

13.2 Customer Indemnity. Customer will defend, indemnify, hold Fishbowl harmless against any legal action brought by a third party against Fishbowl based upon a claim that Customer breached its obligations under Section 15 (Confidentiality) or Section 16 (Security; Privacy) or to the extent arising from Customer’s (or its Users’) willful misconduct or gross negligence in connection with this Agreement.

13.3 Indemnification Procedure. The indemnified Party shall (a) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (b) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s request and cost).

14 Termination

14.1 For Cause. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form: (a) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party specifying such breach in reasonable detail, or (b) immediately in Fishbowl’s case, if Customer materially breaches section 7.3 (General Restrictions) or infringes Fishbowl’s Intellectual Property Rights.

14.2 Effect of Termination. Termination of this Agreement, any Order Form (or portion thereof) or any Software Product licence will not limit either Party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form. All liability for breach of this Agreement will survive such termination. Upon termination of any Software Product licence or Subscription, (a) Customer will cease using the Software Product and uninstall all copies of the Desktop Version(s) licensed hereunder and (b) all associated Customer Data within the Software Product will be deleted or rendered inaccessible by Fishbowl. Except as expressly set forth in this Agreement, payment obligations are non-cancellable and fees paid are non-refundable.

14.3 Survival. All liability for breach of this Agreement will survive termination or expiration of this Agreement, together with the Parties’ rights and obligations under Sections 5, 7, 9, 11-17 and 19.

15 Confidentiality

15.1 Confidential Information. By virtue of this Agreement, each Party may have access to information that is confidential to the other Party (“Confidential Information”). Confidential Information will be limited to the Software Products, Intellectual Property Rights, the terms and pricing under this Agreement and Order Forms, Customer Data, and all information clearly identified as confidential. A Party’s Confidential Information will not include information that: (a) is or becomes generally known to the public through no act or omission of the disclosing Party; (b) was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.

15.2 Restrictions on Disclosure and Use. The Parties agree to hold each other’s Confidential Information in strict confidence during the term of this Agreement and for a period of three (3) years after termination of this Agreement. Each Party agrees, unless required by law, not to make the other’s Confidential Information available in any form to any third party for any purpose except to the extent necessary to exercise its rights under this Agreement, and to treat Confidential Information of the other Party with the same degree of care with which it would treat its own confidential information of a like nature, and in no case with less than a reasonable degree of care. Each Party agrees not to use the other Party’s Confidential Information for any purpose other than the performance of this Agreement and exercising its rights hereunder, except for limited disclosure of Confidential Information to those of its employees and agents who have a need to know such Confidential Information, and each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Fishbowl, may, under appropriate nondisclosure terms (no less stringent than those contained herein) disclose Confidential Information to auditors, accounting, financial and legal advisers, or to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction. The receiving Party also may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding or as necessary to comply with open records acts or other freedom of information laws or regulations; provided that it gives the disclosing Party, if legally permissible, reasonable prior notice and an opportunity to respond or object to the disclosure.

16 Security Privacy

16.1 Security of Customer Data. Fishbowl shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Customer Data and shall promptly notify Customer upon Fishbowl becoming aware of an unauthorized exposure of Customer Data. The Parties shall co-operate to take reasonable commercial steps to assist with regard to the mitigation and remediation of any such unauthorized exposure, if necessary.

16.2 Privacy. Unless otherwise stated herein or in an Order Form, the Parties agree as follows: (a) to comply with the Privacy Act 1988 (Cth) and all other applicable privacy laws as may be in force from time to time and which regulate the collection, storage, use and disclosure of information, including the Australian Privacy Principles; (b) the Fishbowl Services performed under this Agreement will not require Fishbowl’s access or use of any personal information (“PI”) of Customer including, without limitation (i) financial information such as credit or debit card numbers, and government identification information such as passport numbers, and/or (ii) any biometric or sensitive information; (c) Customer will not provide any PI to Fishbowl in connection with the Fishbowl Services except to the extent such PI is necessary for Customer to use or access the Fishbowl Services, such as providing names and contact information of Customer personnel dealing with Fishbowl or providing technical support services. Please refer to Fishbowl’s privacy policy, which informs users of Fishbowl’s policies and practices related to collection, storage, processing, destruction, and other use of PI.

16.3 Customer’s Security Obligations. Customer acknowledges and agrees that it is responsible for managing its organization’s security environment and security profile, including without limitation security configurations, system access, and security privileges. Customer will maintain commercially reasonable administrative, physical, and technical safeguards and standards for its Users’ use of the Software Products and the security of the Software Products and Users’ passwords. Customer is responsible for proper firewall maintenance allowing data to move from Customer’s on-premises data-contributing system to the Software Products. Customer will promptly notify Fishbowl if it becomes aware of any unauthorized access or use of the Software Products or any unauthorized use or disclosure of Users’ passwords or accounts.

17 Limitation of Liability

17.1 Limitations of Damages. In no event will Fishbowl be liable for any lost profits, lost savings, lost revenues, loss of use or downtime, or for any special, indirect, incidental or consequential damages, whether based on contract, tort (including negligence), strict liability or any other theory or form of action, even if Fishbowl has been advised of the possibility thereof, arising out of or in connection with this agreement, including without limitation any software products or Fishbowl Services. To the extent permitted by law and subject to section 11.4, Fishbowl’s liability for damages hereunder will not exceed the amounts actually paid by Customer to Fishbowl under this Agreement during the twelve-month period immediately prior to the date the cause of action accrued. Fishbowl and Customer agree that the limitations specified above and otherwise in this Agreement will survive termination or expiry of this agreement. The Parties acknowledge that the limitations of liability in this Section 17 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the Parties, without which Fishbowl would not have entered into this Agreement. Fishbowl’s pricing reflects this allocation of risk and the limitations of liability specified herein.

18 Third Party Licences

18.1 The Desktop Version contains certain components that are licensed from third parties. The Desktop Version conforms to all licensing requirements stipulated by the various license holders listed above, with the specific details described in a file named “readme.txt” included in the Desktop Version. Any open-source components of the Software Products are subject to the applicable third-party license or subscription terms. Source code that is required to be distributed with the Desktop Version is provided in the Desktop Version in a file named “source.”

19 General

19.1 Conflicting Terms. The terms and conditions set forth in this Agreement (including any Order Form) will control in the event that there are conflicting or additional terms set forth in any purchase order or other ordering document submitted by Customer, or any acceptance form or invoice issued by Fishbowl. The terms and conditions of any Order Form will control over any conflicting terms and conditions set forth in this Agreement.

19.2 Relationship Between the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties shall at all times be and remain independent contractors. Except as expressly agreed by the Parties in writing, neither Party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party or to bind the other Party in any respect whatsoever.

19.3 Governing Law and Disputes. This Agreement shall be construed and enforced in accordance with the laws of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of that place.

19.4 Legal Fees and Costs. In the event of any dispute between the Parties arising out of this Agreement, including the non-payment of fees, the prevailing Party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable legal fees and costs, including pre-suit and appellate fees and costs, and expert fees.

19.5 Publicity. Unless expressly prohibited by Customer, Fishbowl may utilize Customer’s name and logo on marketing material and its website for advertising purposes during the Subscription Term, provided that any such use complies with Customer’s advertising guidelines.

19.6 Force Majeure. Neither party will be liable to the other party under this Agreement because of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, fire, flood, storm, earthquake, pandemics, acts of God, hostilities or any other cause beyond its reasonable control and that could not have been prevented by the first party taking all reasonable steps.

19.7 Notice. Any notice, request, demand or other communication required or permitted hereunder shall be in writing and will be deemed to be properly given upon the earlier of (a) actual receipt by the addressee, or (b) when delivered by nationally recognized delivery service (i) to Fishbowl at Fishbowl Solutions, LLC, [580 E. Technology Ave., Building C, Suite 1100, Orem, Utah 84097], Attention: CRO, and (ii) if to Customer, at the contact address set forth on an Order Form or such other address as may be provided in writing.

19.8 Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and remain in effect according to its stated terms and conditions. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

19.9 No Assignment. A party may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party (which must not be unreasonably withheld). Any purported assignment, transfer, delegation or other disposition by a party will be null and void. Fishbowl may assign its rights under this Agreement without obtaining the prior written consent of Customer in connection with a restructure or sale of all or part of its assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns, and no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.

19.10 Export Administration. The Parties agree to comply fully with all applicable export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively, “Export Controls”). Without limiting the generality of the foregoing, each Party expressly agrees not to, and will require its representatives to agree not to, export, direct or transfer Products, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

19.11 Entire Agreement. This Agreement and all applicable Order Forms constitute the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement and any Order Form will supersede the terms in any Customer purchase order or other ordering document. Notwithstanding the foregoing, any restrictions on the use or exploitation of any Software Product in addition to those contained herein that are set forth in any unsigned or “shrink-wrap” license included in any package, media or electronic version of Fishbowl-furnished software will, as to such Software Product, supplement the restrictions contained herein.

19.12 Counterparts; Electronic Delivery. This Agreement (including an Order Form) may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The Parties agree that an electronic delivery of a signature (including by email or DocuSign) may substitute for and have the same legal effect as the original signature.

[End of Software Subscription Terms and Conditions.]