LICENSE AND SERVICES AGREEMENT

1. Certain Definitions

• “Authorized User” means an employee of Customer duly authorized by Customer (or, as the case may be, by CUE) to access and use the Service Suite.
• “Concept” means (i) any method, process, procedure, know-how, and the like utilized by CUE in performing its obligations under this Agreement or otherwise used, held, or acquired for use by CUE in the course of its business and (ii) any finding, invention, improvement, discovery, or idea of CUE, either alone or jointly with Customer or a third party, whether or not patentable, that is conceived or reduced to practice during the Term, whether or not related to the Licensed Materials or services provided or contemplated under this Agreement, but expressly excluding Customer Property.
• “Confidential Information” means any information of any type in any form that (i) is disclosed to or observed or obtained by one party from the other party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other party) in the course of, or by virtue of, this Agreement and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. For purposes of this Agreement, however, the term “Confidential Information” specifically shall not include any portion of the foregoing that (i) was in the recipient’s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person or body of which the recipient knew or which, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction. Without limiting any other provisions of this Agreement, and whether or not otherwise meeting the criteria described herein, the source code and object code of the Licensed Materials shall be deemed conclusively to be Confidential Information. No combination of information will be deemed to be within any of the foregoing exceptions, regardless of whether the component parts of the combination are within one or more exceptions. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information.
• “Customer Content” means all text, pictures, sound, audio, graphics, video, website URLs, QR codes, designs, filters, and other content and data (i) supplied to CUE by or on behalf of Customer for use in the interface design of a Client Application or integration with the Service Suite pursuant to the Service Order, (ii) entered or otherwise transmitted to the Service Suite or other mutually-agreed content distribution mechanism by Customer or at Customer’s direction for display or other use in a Client Application, or (iii) entered or uploaded through a feature or function of a Client Application or a component of the Service Suite intended to facilitate transmission, publication, display, or dissemination thereof.
• “Customer Data” means (i) all information and data elements other than Customer Content entered into the Service Suite by an Authorized User or by or on behalf of Customer pursuant to a conversion of data from another system or from a system interface with another system, in each case as such data is maintained in such Service Suite from time to time.
• “Customer Marks” means any trademark or service mark, whether or not registered, owned by or licensed to Customer and supplied to CUE for use in the interface design of a Client Application pursuant to the Service Order.
• “Customer Property” means Customer Content, Customer Marks, and Customer Data. Customer Property also shall include any other property delivered to CUE by or on behalf of Customer to facilitate CUE’s provision of services under this Agreement.
• “Client Application” means a software application, tool, SDK, or component, in object code (or encrypted source code) form only, developed pursuant to the Service Order by or on behalf of CUE using Customer Property that allows End Users, through the User Device on which such application is installed, run, or accessed, to interact with or access content from the Service Suite, together with any associated End User documentation and any and all revisions, modifications, and updates thereof as are supplied by CUE pursuant to this Agreement.
• “Distribution Platform” means the web site, app store, repository, or other such platform set forth in the Service Order through which End Users may download, access, or otherwise utilize a Client Application on User Devices.
• “Documentation” means all documentation (whether printed or in an electronic retrieval format) supplied to Customer by CUE for use with or in support of the Service Suite or Client Application and any and all revisions, modifications, and updates thereof as may be supplied by CUE to Customer during the Term.
• “End User” means, as to a given Client Application or any component of the Service Suite, any individual person; provided, however, that if the Service Order specifies that End Users shall belong to a particular class or category of persons, such individual person shall belong to such class or category.
• “Infringement Claim” means a claim by a third-party other than an affiliate of a party that the Licensed Materials (except to the extent such infringement claim is with respect to Customer Property) infringe such third-party’s patent or copyright pursuant to the laws of the United States or misappropriates such thirdparty’s trade secrets pursuant to the laws of a state of the United States.
• “Licensed Materials” means the Client Application, the Service Suite, and the Documentation.
• “Losses” means mean all losses, liabilities, damages, awards, settlements, claims, suits, proceedings, costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, expert witness fees, settlement, judgment, interest, and penalties).
• “Malfunction” means a material failure of the Service Suite or Client Application, when operated in accordance with the Documentation, to provide the functionality described in the Service Order or to perform in conformance with any standards and specifications expressly stated therein.
• “User Device” means any device or platform through which a Client Application or any component of the Service Suite may be accessed, as set forth in the Service Order. This includes, but is not limited to, mobile devices, desktop computers, and any other device capable of interacting with digital content.
• “Personally Identifiable Information” means, with respect to any End User any information that refers, is related to, or is associated with an identified or identifiable individual and that can be used on its own or with other information to identify, contact or locate a single person or identify an individual in context, including, but not limited to an individual’s first name or first initial and his or her last name in combination with any one or more of the following data elements : (i) Social Security Number; (ii) driver’s license number or state identification card number; (iii) account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to an individual’s financial account or (iv) any individually identifiable information regarding an individual’s medical history or treatment or diagnosis by a health care professional.
• “Problem Report” means a written report delivered to CUE by Customer describing in reasonable detail a suspected Malfunction.
• “Service Suite” means the comprehensive set of proprietary software applications, tools, and components offered by CUE. This includes but is not limited to server applications hosted on a software-as-a-service basis, device applications, web components, standalone SDKs, and any other software-related services that facilitate the management, distribution, and interaction with digital content across various platforms and devices.
• “Term” has the meaning set forth in Section 2.
• The word “including” means “including without limitation” unless otherwise expressly provided in a given instance.

2. Term

The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless otherwise terminated pursuant to Section 12 or as otherwise provided herein, shall continue through the expiration date indicated in the Service Order (subject to renewal provisions and amendments, if any, shown therein).

3. Services

Subject to terms and conditions of this Agreement and provided Customer is not in material breach of its obligations hereunder, CUE shall provide the following services during the Term:

• Client Application Development. CUE shall provide the Client Application described in the Service Order and, as applicable, shall modify and provide the Service Suite as necessary to implement and manage the distribution of Customer Content to such Client Application. Changes to the Service Order, and any enhancements to the Service Suite or the Client Application, from time to time shall become effective upon execution by the parties of a written change order (which may be an informal document evidencing the parties’ agreement and the nature of changes to be made, as, by way of example, an e-mail exchange between the parties). In the event that a Distribution Platform rejects the Client Application, CUE shall make reasonable efforts to implement product changes in order to comply with any reasonable Distribution Platform request.
• Distribution of Client Application. Unless the Service Order provides that CUE will have responsibility for delivering the Client Application to Distribution Platforms for End Users to download, access, or otherwise utilize it, then CUE shall deliver the Client Application to Customer as set forth in the Service Order and Customer shall have such responsibility and Customer’s distribution of the Client Application shall be pursuant to sublicenses as contemplated in Section 4(b). If the Service Order provides that CUE will have responsibility for delivering the Client Application to Distribution Platforms for End Users to download, access, or otherwise utilize it, then CUE shall make the Client Application available for such use by End Users as set forth in the Service Order and CUE’s distribution of the Client Application to End Users shall be subject to such End Users accepting such terms of use agreement as CUE may cause to be presented (whether in the form of a click-through acceptance process, a link from the Distribution Platform access page, or otherwise as CUE may determine) and that contains such terms and conditions, if any, as set forth in the Service Order or, if not addressed in the Service Order, such terms and conditions (other than as to payment of fees) as CUE determines in its reasonable discretion.
• Hosting. CUE shall operate the Service Suite, including provision, administration, and maintenance of servers and related equipment, and provision of bandwidth at the hosting facility, for use of the Service Suiteby Authorized Users and for communication with instances of the Client Application on User Devices as contemplated herein.
• Maintenance. In response to a Problem Report, CUE shall use commercially reasonable efforts to correct a reported Malfunction or to provide a reasonable workaround sufficient to alleviate any adverse effect of the problem on the utility of the Client Application or the Service Suite. Customer agrees to assist CUE in its efforts to correct a Malfunction by making available information, documentation, access to personnel, and testing reasonably requested by CUE from time to time to assist CUE in identifying and correcting the problem. Customer acknowledges that correcting some such problems may require posting updates to the applicable Distribution Platform and thus will be dependent on the policies of such Distribution Platform and the utilization of such updates by End Users therefrom. In the event a Malfunction exists due to an error in the Documentation, the Service Order, or any standards and specifications stated therein, CUE may correct such - 4 -Malfunction by providing corrections to such applicable documents; provided, however, that no revision, modification, or update to such documents shall eliminate or materially diminish any feature or operational functionality of the Service Suite or Client Application previously described therein. From time to time at its discretion, CUE also may implement releases of Service Suite and the Client Application that contain changes, updates, patches, fixes, enhancements to functionality, and/or additional functionality. CUE in its sole discretion will determine whether to include in the Service Suite and/or the Client Application, as part of the maintenance services hereunder, features or functionality not originally specified hereunder, and CUE shall have no obligation to disclose or offer to Customer any such features or functionality.
• Support. During CUE's normal business hours which may be updated by CUE from time to time (currently 9:00 a.m. to 5:00 p.m. Central Time weekdays except business holidays observed by CUE), CUE shall provide to Customer’s qualified personnel consultation and assistance with operational and technical support issues arising from Customer’s use of the Service Suite. Customer acknowledges that CUE will not provide support for the Client Application other than in conjunction with its maintenance obligations set forth in this Agreement. Customer's requests for support services shall be submitted by telephone or e-mail or through CUE’s web site at such numbers, e-mail addresses, or URLs as CUE specifies to Customer from time to time.
• Conditions of Support. CUE’s support and maintenance obligations pursuant to this Agreement are conditioned access to and use of the Service Suite by Authorized Users (i) using browsers and other information technology as specified in the Service Order or Documentation, or if not so specified, the thencurrent version of Google Chrome or Mozilla Firefox in an information technology environment reasonably acceptable to CUE (provided, however, that upon reasonable notice to Customer from time to time CUE mayrevise such specifications or implement new specifications to address the evolution of such technology) and (ii) in accordance with the Documentation and any operating instructions provided by CUE from time to time. CUE shall have no obligation to provide support and maintenance services pursuant to this Agreement with respect to any Client Application that has been modified by any person other than CUE, including but not limited to unauthorized modifications to any Client Application by End Users.
• Other. CUE shall perform such other services as are expressly set forth in the Service Order. From time to time, as mutually agreed by the parties in writing, CUE may perform consulting or other work hereunder, which shall be billed at CUE’s then-current rates therefor unless otherwise set forth in a written addendum to this Agreement duly executed by the parties or pursuant to arrangements documented informally, such as by exchange of e-mails.

4. Licenses to Customer

• Internal Use of Client Application. Subject to terms and conditions of this Agreement, CUE grants to Customer during the Term a non-exclusive, non-transferable (except as otherwise provided herein) license for Authorized Users to use and reproduce the Client Application in object code (or encrypted source code, if so delivered by CUE) form for testing, demonstration, promotion, and other business purposes in support of exercising the foregoing licenses. If an Authorized User accesses the Client Application from a Distribution Platform for use pursuant to the license granted in this paragraph, the terms and conditions of the license granted in this paragraph shall control in the event of a conflict with the terms and conditions of any license entered by such Authorized User upon such access or utilization of the Client Application.
• Distribution of Client Application. If the Service Order provides that CUE will deliver the Client Application to Customer, or make the Client Application available to Customer, and Customer will have responsibility for delivering the Client Application to Distribution Platforms for End Users to download, access, or otherwise utilize it (or if the Service Order does not indicate which party has such responsibility), then subject to terms and conditions of this Agreement, CUE grants to Customer during the Term a non-exclusive, non-transferable (except as otherwise provided herein) license (i) to grant sublicenses to Distribution Platforms for purposes of making the Client Application in object code (or encrypted source code, if so delivered by CUE) form available for distribution to such End Users, and (ii) to grant sublicenses to End Users for use of the Client Application in object code (or encrypted source code, if so delivered by CUE) form to access Customer Content distributed to the Client Application from the Service Suite, such sublicenses to be subject to CUE’s reasonable approval and to be in the form, or to contain such terms and conditions, as set forth in the Service Order (if any) and as may be specified by CUE upon reasonable notice to Customer from time to time.
• Service Suite. Subject to terms and conditions of this Agreement, CUE grants to Customer a non-exclusive, non-transferable (except as otherwise provided herein) license during the Term (i) for access to and use (but not possession) of the Service Suite by Authorized Users solely to the extent necessary to distribute to the Client Application Customer Content owned by or licensed to Customer (or other information in which Customer has the requisite rights to so distribute) and for purposes of system implementation, maintenance, and technical support, and (ii) to utilize the Documentation in support of such use and operation of the Service Suite.

5. License to CUE

Subject to the terms and conditions of this Agreement, Customer grants to CUE (a) during the Term a non-exclusive, non-transferable (except as otherwise provided herein) right and license to use, copy, distribute, display, and transmit the Customer Property in the performance of CUE’s obligations under this Agreement and in compliance with the terms and conditions hereof, and (b) a non-exclusive, non-transferable, perpetual right and license to use, copy, display and transmit for CUE’s business purposes, any data entered into a Client Application and transmitted to the Service Suite or otherwise transmitted to or received by CUE from or on behalf of an End User, provided that such data does not include (and CUE has no permission to use) any Personally Identifiable Information of any End User, and further provided that such data is protected by CUE at all times in accordance with this Agreement. Customer represents and warrants that (i) it owns or has the legal right and authority, and will continue to own or have the legal right and authority, to grant to CUE during the Term the rights and licenses set forth herein and (ii) CUE’s use of Customer Property as provided herein will not infringe any copyright, patent, trademark, or other proprietary right, misappropriate any trade secret, or otherwise violate any right of a third party.

6. Customer Responsibilities and Restrictions

• Customer Connection to Service Suite. Except as outlined in the Service Order, Customer shall be responsible for selecting, obtaining, and maintaining any equipment and ancillary services needed to connect and send Customer Content and/or Customer Data to, or otherwise access, the Service Suite, including telecommunication and computer hardware, networking equipment, Internet access, and browsers, operating systems, and other software. For the avoidance of doubt, Customer shall be solely responsible for monitoring, moderating and administering any Customer Content, Customer Data and/or other data submitted by User Devices to the Client Application or Customer App.
• Notice Regarding Photosensitive Epilepsy. To the extent Customer, in its use of the Client Application, will display or implement the display of flashing lights or strobe lights at a live event, Customer shall provide reasonable notification to all individuals in the area of the show that a flashing light event will be occurring, and that individuals who are susceptible to photosensitive epilepsy or other photo sensitivities should not participate. Customer shall defend, indemnify and hold CUE harmless from all claims for damages relating to the use of flashing lights.
• SDK For Integration with Customer App. To the extent the Service Order includes that CUE will provide a software development kit (“SDK”) to Customer to allow for integration of CUE’s Service Suite into Customer’s proprietary mobile app, or into Customer’s existing third-party mobile app (collectively the “Customer App”), Customer shall be solely responsible for use of the SDK and integration of the Service Suite (or a portion of the Service Suite) into the Customer App. As for a third-party Customer App, Customer shall be responsible for working with the third-party and app provider to perform the integration and shall make sure that an appropriate agreement has been entered into between CUE and the third-party to allow for the integration. The SDK may not be provided to the third-party without CUE’s prior written approval. The Service Suite, including all content and materials included in the Service Suite that are integrated into the Customer App shall not be altered in any way by Customer or the third-party without the prior written approval and consent of CUE. Customer shall require all users of the Customer App to comply with (and shall not knowingly enable them to violate) any applicable laws and regulations, as well as CUE’s Terms of Use and Privacy Policy, and shall ensure that all users of the Customer App validly consent to the same. For the avoidance of doubt, Customer shall be solely responsible for procuring all required licenses or clearances in connection with the use of the Customer Property in connection with the Client Application and/or Customer App, including but not limited to the public performance or display of any audio or video selected by Customer.
• Account Passwords and Data Security. Customer shall maintain or cause to be maintained the confidentiality of all user IDs and passwords, including implementing and enforcing such policies and procedures as Customer deems appropriate thereto, and Customer shall maintain adequate technical, physical, and procedural access controls and system security requirements and devices to ensure that access to the Service Suite by or through Customer is limited to duly authorized persons. Customer shall be solely responsible for all use or misuse of its user IDs and CUE shall have no obligation to monitor for or report any use or attempted use of Customer’s user IDs. All such user IDs and passwords are deemed to be Confidential Information, and Customer shall take reasonable steps to ensure that its personnel do not share user IDs or passwords and do not attempt to access the Service Suite except as duly authorized. CUE shall not be liable to Customer for any loss or damage arising out of or relating to Customer’s failure to maintain its obligations set forth in this section.
• Restrictions. Except as may be expressly authorized in this Agreement, Customer shall not do, nor shall it authorize any person to do, any of the following: (i) use the Licensed Materials for any purpose or in any manner not specifically authorized by this Agreement; (ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic format; (iii) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials; (iv) create or recreate the source code for, or re-engineer, reverse engineer, decompile, or disassemble any Licensed Materials that is computer software; (v) modify, adapt, translate, or create derivative works from or based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, document, or work (unless otherwise authorized by CUE in writing) ; (vi) refer to or otherwise use any part of the Licensed Materials as part of any effort to develop a product or service having any functional attributes, visual expressions, or other features or purposes similar to those of Licensed Materials; (vii) remove, erase, or tamper with any copyright, logo, or other proprietary or trademark notice printed or stamped on, affixed to, or encoded or recorded in the Licensed Materials, or fail to preserve all copyright and other proprietary notices in any copy of any portion of the Licensed Materials made by Customer; (viii) sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess or utilize any portion of the Licensed Materials without the express prior written consent of CUE (which may be withheld by CUE for any reason or conditioned upon execution by such party of a confidentiality and non-use agreement and/or other such other covenants and warranties as CUE in its sole discretion deems desirable); (ix) use the Licensed Materials to gain or attempt to gain access to any software applications, computer systems, or data not expressly authorized under this Agreement; or (x) attempt to do or assist any party in attempting to do any of the foregoing.

7. Charges; Taxes

Customer shall pay all fees or other charges to be paid or reimbursed by Customer to CUE as set forth in this Agreement or the Service Order. Payments not received within 30 days after the date of an invoice shall accrue interest from the due date thereof at the rate of 1.5% per month or, if less, at the highest rate permitted by applicable law. Customer shall pay when due (and CUE at its discretion may collect and pay on Customer’s behalf) all taxes, levies, or assessments based on or in any way measured by this Agreement, the Licensed Materials, and the services provided hereunder, excluding taxes based on CUE's net income, but including sales and use taxes and personal property taxes, if any.

8. Ownership

• Customer Property. As between CUE and Customer, Customer has and retains exclusive ownership of all Customer Property, and CUE acknowledges that the foregoing constitute valuable assets and may constitute trade secrets of Customer. As between the parties, it shall be Customer’s responsibility to obtain any third party’s consent or license necessary to utilize the Customer Property in connection with the Licensed Materials.
• CUE Property. As between CUE and Customer, CUE has and retains exclusive ownership of the Licensed Materials (except to the extent of Customer Property therein) and all intellectual property and proprietary rights therein. Customer acknowledges that the foregoing constitute valuable assets and may constitute trade secrets of CUE. Customer acknowledges that Customer may suggest Concepts and the parties may discover or create Concepts jointly and that CUE, at its sole option, may incorporate such Concepts in the Licensed Materials or in other products or services that may or may not be made available to Customer. Any such Concept shall be and remain solely the property of CUE and may be used and sold, - 7 -licensed, or otherwise provided by CUE to third parties, or published or otherwise publicly disclosed, in CUE's sole discretion without notice, attribution, payment of royalties, or liability to Customer. Customer hereby assigns to CUE any and all of its right, title, and interest in and to any such Concepts. Further, Customer acknowledges and agrees that CUE may collect and analyze data, and that CUE shall own all right, title and interest in and to such data and analysis results, related to and generated through the use of the Licensed Materials and Client Application (except to the extent such data includes Customer Property).

9. Confidentiality

• Security of Confidential Information. In addition to any other restrictions or obligations imposed at law or provided under this Agreement, each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using the same security procedures used by such party for the protection of its own Confidential Information of a similar kind and in any event not less than reasonable security measures.
• Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any person without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, agents, and professional advisors having a substantial need to know the specific information in question in connection with such party's exercise of rights or performance of obligations under this Agreement provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound either by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
• Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; and (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise its best efforts to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
• Non-Use Obligation. Except as expressly authorized in this Agreement, during the Term and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of such other party, without the express prior written consent of the other party.
• Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be the sole property of the first party and fully subject to the obligations of confidence set forth herein.
• Proprietary Legends. Without the other party’s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information or any proprietary legend relating to the other party’s rights.
• Reports of Misappropriation. Each party immediately shall report to the other party any act or attempt by any person of which such party has knowledge or reasonably suspects (i) to use or disclose, or copy Confidential Information without authorization from the other party or (ii) to reverse assemble, reverse compile, or otherwise reverse engineer any part of the Confidential Information.
• Post-Termination Procedures. Except as otherwise provided in this Agreement, immediately upon any termination of this Agreement or other termination of a party’s right to possess and/or use Confidential Information, each party shall turn over to the other party (or destroy and certify the same in writing, if agreed in writing by the other party) any embodiments of any Confidential Information of the other party at its sole cost and expense.

10. Representations and Warranties; Disclaimers

• Services. CUE warrants that it will perform the services described in this Agreement in a workmanlike manner using duly qualified and experienced personnel.
• Viruses. CUE represents that to its knowledge the Licensed Materials do not and will not contain any computer code designed to disrupt, disable, harm, or otherwise impede the operation thereof or of any associated software, firmware, hardware, computer system, or network (sometimes referred to as “viruses” or “worms”) and warrants that it will take commercially reasonable steps to protect against the foregoing.
• REPRESENTATION AND WARRANTY DISCLAIMERS. THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS OF CUE SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND CUEDISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED MATERIALS OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CUE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR OTHERWISE IS IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. CUEEXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE LICENSED MATERIALS OR ANY PART THEREOF.
• Other Disclaimers. Customer will be exclusively responsible as between the parties for, and CUE makes no representation or warranty with respect to, determining whether the Licensed Materials will achieve the results desired by Customer, ensuring the accuracy of any Customer Data, or selecting, procuring, installing, operating, and maintaining the technical infrastructure for Customer’s access to and use of the Licensed Materials. CUE shall not be liable for, and shall have no obligations with respect to, (i) any aspect of the Licensed Materials that is modified by (or any derivative work created from the Licensed Materials by) any person other than CUE or its contractors, (ii) use of the Licensed Materials other than in accordance with the Documentation and the most current operating instructions provided by CUE, (iii) Malfunctions or failures caused by or related to use of software or hardware not provided by CUE, or (iv) Malfunctions or failures caused by acts or omissions of Customer, an End User, or any third party. Customer acknowledges that the operation of the Licensed Materials will not be error free in all circumstances, that all defects in the Licensed Materials may not be corrected, and that the operation of the Licensed Materials may be interrupted for reasonable periods of time by reason of defect therein or by reason of fault on the part of CUE. Due to the continual development of new techniques for intruding upon and attacking networks, CUE does not warrant that the Licensed Materials, or any equipment, system, or network on which the same are used or accessed will be free of vulnerability to intrusion or attack.

11. Indemnification

• Indemnity by CUE. CUE shall indemnify Customer and its directors, officers, and employees against any final judgment entered in respect of an Infringement Claim by a court of competent jurisdiction and against any settlements arising out of such a claim. CUE’s obligations specified in this paragraph will be conditioned on Customer’s notifying CUE promptly in writing of the Infringement Claim or threat thereof (whether or not litigation or other proceeding has been filed or served) and giving CUE full and exclusive authority for, and information for and reasonable assistance with, the defense and, subject to Customer’s approval (which shall not be withheld or delayed unreasonably), settlement of such claim and any subsequent appeal.
• Indemnity by Customer. Customer shall indemnify, defend, and hold harmless CUE and its members, directors, managers, officers, and employees from and against any Loss arising from or related to a claim of a third party with respect to (i) a breach of Customer’s representations and warranties, (ii) a breach of data security or privacy caused by Customer’s failure to comply with its obligations set forth in Section 6 above, (iii) - 9 -Customer’s failure to comply with all laws applicable to Customer and its End Users (including laws regarding privacy and protection of consumer information, raffles and giveaways, and charitable donations), (iv) Customer’s and its End User’s use of the Client Applications and Service Suite, and (v) any use of the Customer Property that violates any third party rights. Customer’s obligations specified in this paragraph will be conditioned on CUE’s notifying Customer promptly in writing of such claim or threat thereof (whether or not litigation or other proceeding has been filed or served) and giving Customer full and exclusive authority for, and information for and reasonable assistance with, the defense and settlement (subject to CUE’s reasonable approval) of such claim and any subsequent appeal.
• CUE’s Mitigation. If an Infringement Claim has occurred or in CUE’s reasonable opinion is likely to occur, Customer agrees to permit CUE, at CUE’s option and expense, to (i) procure for Customer the right to continue using the Licensed Materials, (ii) replace or modify the same so that they become non-infringing but provide Customer substantially similar or better capabilities, or (iii) if CUE reasonably determines that both of the foregoing are technically impracticable or commercially infeasible, immediately terminate both parties’ respective rights and obligations under this Agreement (or, if the Infringement Claim concerns a given Client Application, terminate both parties’ respective rights and obligations with respect thereto), in which case Customer shall return to CUE all copies of the Licensed Materials in its possession or control (or, if the Infringement Claim concerns a given Client Application, all copies of such Client Application its possession or control) and CUE will refund to Customer the applicable license fees paid by Customer the license fees paid by Customer for the then-current Term, prorated for the portion of such Term through the date of such termination.
• Exceptions. The foregoing notwithstanding, CUE shall have no liability for, and Customer will indemnify CUE and its members, directors, managers, officers, and employees against, any claim arising from (i) the combination, operation, or use of any Licensed Materials with equipment, devices, or software not supplied by CUE if such claim would not be valid but for such combination, operation, or use, (ii) modification of any Licensed Materials other than by or on behalf of CUE, (iii) CUE’s compliance with Customer’s designs, specifications, Customer Content, or instructions, or (iv) Customer’s use of the Licensed Materials after CUE has informed Customer of modifications or changes in the Licensed Materials required to avoid such claims if such claim would have been avoided by implementation of CUE’s recommended modifications and CUE has offered to pay Customer’s out-of-pocket costs of implementing any such modifications.
• EXCLUSIVE REMEDY. THE FOREGOING STATES THE ENTIRE OBLIGATION OF CUE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO THIRD-PARTY CLAIMS.

12. Termination

• Notice of Breach; Cure Period. In the event of a breach of provision of this Agreement, the notice and cure procedures set forth in this paragraph shall apply. The non-breaching party shall give the breaching party notice describing the breach and stating the time, as provided herein, within which the breach must be cured. If a provision of this Agreement sets forth a cure period for the breach in question, then that provision shall take precedence over any cure period set forth in this paragraph. No cure period shall be required, except as may be provided otherwise in this Agreement, if this Agreement sets forth specific deadline dates for the obligation allegedly breached. If the breach is (i) of an obligation to pay money or (ii) a non-willful breach of an obligation of a party relating to the other party’s Confidential Information, then the breaching party shall have five (5) business days to cure the breach after written notice thereof by the non-breaching party. If the breach is a willful breach of an obligation of a party relating to the other party’s Confidential Information, then the non-breaching party, in its sole discretion, may specify in the notice of breach that no cure period will be permitted. If the breach is other than a breach of the kind described above in this paragraph, then the cure period will be 30 days after the notice of the breach by the non-breaching party.
• Termination. If a breach of any provision of this Agreement has not been cured at the end of the applicable cure period, if any (or upon such breach if no cure period is permitted), then the non-breaching party thereupon may terminate this Agreement by notice to the other party. Termination of this Agreement by CUE for breach by Customer shall immediately terminate all licenses granted to Customer herein. This Agreement and the licenses granted to Customer herein shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question, if Customer makes an assignment for the benefit - 10 -of its creditors, files a petition in bankruptcy, receivership, reorganization, or other like proceeding under any present or future debtor relief law (or is the subject of an involuntary such petition or filing that is not dismissed within sixty (60) days after the effective filing date thereof), or admits of a general inability to pay its debts as they become due. Any termination of this Agreement shall be in addition to, and not in lieu of, any other rights or remedies available at law or in equity.

13. Risk Allocation

• EXCLUSION OF INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARITES’ INDEMNITY OBIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF OR DAMAGE TO DATA, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER THEPARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
• MAXIMUM AGGREGATE LIABILITY. OTHER THAN WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT AND CUSTOMER’S USE OF THE LICENSED MATERIALS OTHER THAN IN ACCORDANCE WITH THE LICENSE GRANTED IN THIS AGREEMENT, IN NO EVENT SHALL A PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY OR THROUGH SUCH PARTY), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID OR PAYABLE HEREUNDER DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO CLAIM. THE PROVISIONS OF THIS PARAGRAPH ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.
• Intentional Risk Allocation. Each party acknowledges that the provisions of this Agreement were negotiated, as a material part of the agreement memorialized herein, to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions involved with this Agreement. The warranty disclaimers and limitations in this Agreement are intended, and have as their essential purpose, to limit the circumstances of liability. The remedy limitations and the limitations of liability are separately intended, and have as their essential purpose, to limit the forms of relief available to the parties.

14. Nature of Relationship; Subcontractors

CUE shall provide all services hereunder as an independent contractor to Customer. Subject to the provisions of this Agreement regarding confidentiality, CUE may perform its obligations hereunder through its employees and through subcontractors. Nothing contained herein shall be deemed to create any agency, partnership, joint venture, or other relationship between the parties or any of their affiliates, and neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party.

15. Other Provisions

• Notice. Except as otherwise expressly provided herein, notices shall be given under this Agreement by personal delivery, by certified or registered U.S. mail from within the United States, or with next-business-day instruction by a recognized overnight document delivery. Except as otherwise expressly provided herein, notices given under this Agreement shall be deemed delivered (i) when personally delivered, (ii) on the second business day after deposit when sent by certified or registered U.S. mail from within the United States, or (iii) on the next business day when sent with next-business-day instruction by recognized overnight document delivery service. Such notices shall be sent to CUE at Attn: CEO, CUE Audio, Inc d/b/a CUE, PO Box 2770, Albany, TX 76430, with copy to Ryan J. Valenza, Winstead PC 401 Congress Avenue, Suite 2100, Austin, TX 78701, and to Customer at the address shown in the Service Order. Either party may change its address for purposes of notice by written notice thereof to the other party.
• Survival. The covenants, conditions, and rights set forth herein concerning perpetual license rights and restrictions relating thereto, Confidential Information, indemnification, post-termination procedures, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement except as otherwise expressly set forth in this Agreement.
• Force Majeure. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control of such party and not due to such party’s own fault or negligence or that of its contractors or representatives or other persons acting on its behalf, and which cannot be overcome by the exercise of due diligence and which could not have been prevented through commercially reasonable measures, including acts of God, acts of terrorists or criminals, acts of domestic or foreign governments, change in any law or regulation, fires, floods, explosions, epidemics, disruptions in communications, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies.
• Governing Law. All matters relating to the Service Suite, the CUE Platforms and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
• Arbitration. The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall exclusively be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The award rendered by the arbitrator shall be final and non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction. In the selection of the Tribunal, there shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or, in default thereof, appointed by the AAA in accordance with its Commercial Rules. The seat or place of arbitration shall be Dallas, Texas, USA, and the Parties waive any objection to arbitration taking place in Dallas.
• Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSSCLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO, BOTH OF WHICH ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
• Assignment. Customer may transfer or assign some or all of its rights and/or delegate some or all of its obligations under this Agreement only with the express prior written consent of CUE, which may be granted or withheld in CUE’s sole discretion; provided, however, that Customer may assign all of its rights hereunder indivisibly pursuant to a corporate restructuring, merger, or similar transaction, or to a purchaser of substantially all of Customer’s assets, so long as such assignee promptly notifies CUE in writing of the same and such assignee expressly agrees to assume all of Customer’s obligations herein. CUE may transfer or assign some or all of its rights and/or delegate some or all of its obligations under this Agreement, indivisibly or divisibly, pursuant to a corporate restructuring, merger, or similar transaction, or to a purchaser of any or all of CUE’s assets related to this Agreement, in CUE’s sole discretion. Any purported transfer or assignment by a party of any right under this Agreement otherwise than in accordance with the provisions of this paragraph shall be null and void and a breach of this Agreement.
• Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
• No Third Party Beneficiaries. Nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.
• Entire Agreement. Except as otherwise expressly provided herein, this Agreement (including the Service Order) constitutes the entire agreement between the parties concerning the subject matter hereof. No - 12 -prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
• Amendment and Waiver. No modification or amendment to this Agreement will be valid or binding unless in writing and duly executed by the party or parties to be bound thereby. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
• Severability. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other body making the ruling; (iii) the provision held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other body is authorized to reform the provision, to the minimum extent necessary to render them valid and enforceable in conformity with the parties' intent as manifested herein; and (iv) if the ruling or the controlling principle of law or equity leading to the ruling subsequently is overruled, modified, or amended by legislative, judicial, or administrative action, then the provision in question as originally set forth in this Agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
• Attorney Fees. If litigation or other action is commenced between the parties concerning any dispute arising out of or relating to this Agreement, the prevailing party will be entitled, in addition to any other award that may be made, to recover all court costs and other official costs and all reasonable expenses associated with the litigation or other action, including reasonable fees and expenses of counsel.
• Injunctive Relief. Each party acknowledges that any violation of its covenants in this Agreement relating to the other party's Confidential Information and intellectual property would result in damage to such party that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, and without limiting any other rights or remedies to which a party may be entitled, any such violation or reasonably anticipated violation shall give such party the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants without bond and without the necessity of proving actual damages.
• Headings. The headings of the sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
• Government Entities. If Customer is a United States federal government entity, then the following applies instead of the “Arbitration” and “Governing Law” paragraphs above: the laws of the United States of America, excluding its conflict of laws rules, will apply to any disputes between CUE and Customer. Solely to the extent permitted by United States federal law: (i) the laws of the State of Delaware will apply in the absence of applicable federal law; and (ii) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN THE STATE OF TEXAS IN EACH CASE LOCATED IN THE CITY AND COUNTY OF DALLAS. If Customer is a United States city, county, or state government entity, then the following applies instead of the “Arbitration” and “Governing Law” paragraphs: the parties agree to remain silent regarding governing law, jurisdiction, and venue.