SUBSCRIPTION AGREEMENT

THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTNG AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if you are Our direct competitor. In addition, You may not access the Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on 2013-02-28. It is effective between You and Us as of the date of You accepting this Agreement.

1. DEFINITIONS

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

HIPAA” means The Health Insurance Portability and Accountability Act of 1996.

Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful and malicious code, files, scripts, agents, or programs.

Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. part 160 and part 164 subparts A and E, as the same may be amended from time to time.

Protected Health Information (or PHI)” means the same as the terms protected health information as defined in 45 C.F.R. § 160.103, as the same may be amended from time to time.

Purchased Services” means Services that You purchase under a Registration Form, as distinguished from those provided without charge.

Registration Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into a Registration Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Registration Forms shall be deemed incorporated herein by reference.

“Service Month” means the period commencing on the day of the month on which you executed the Registration Form and first made payment for the Services and ending on the same day of the following month.

Services” means the products and services that are ordered by You using the Registration Form, whether without charge or on a fee basis, and made available by Us online via the customer login link at https://benchmarksplus.com.

User Guide” means the online help (documents, images, videos, etc.) for the Services, accessible via login at https://benchmarksplus.com, as updated from time to time.

Users” means employees, agents and consultants who are authorized by You to use the Services, and to whom You have supplied user identifications and passwords.

We,” “Us,” or “Our” means CKS Productions, Inc. d/b/a PPS Plus.

You” or “Your” means the company or other legal entity for which you are accepting this Agreement.

Your Data” means all electronic data or information submitted by You to the Services.

2. Services Without Charge

If You register on Our website for Services to be provided by Us without charge, the benchmarking data and the reports available to You with be significantly limited from those available on a fee basis.

NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE PERIOD WE PROVIDE YOU SERVICES WITHOUT CHARGE, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

3. PURCHASED SERVICES

3. 1 Provision of Purchased Services

. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Registration Forms on a month-tomonth basis. Each Service period shall run from the day of the month on which you have executed the Registration Form and made payment to Us until the same day of the immediately following month and shall continue from month-to-month thereafter until no payment is made for the next succeeding month. You agree that Your use of and payment for the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

3. 2 User Subscriptions

. Services purchased by You are for Your benefit and may only be accessed by Users. You are prohibited from allowing third parties to access the Services through your account.

4. USE OF THE SERVICES

4. 1 Our Responsibilities

. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Central Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

4. 2 Our Protection of Your Data; PHI.

We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data. We shall not (a) modify your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosures) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

HIPAA Compliance.

In the course of PPS providing Services to Client, Client will disclose to PPS Protected Health Information. PPS represents, warrants and covenants that to the extent that PPS creates, maintains or receives any PHI on behalf of or from Client, PPS will:

a)      not use or further disclose the PHI other than as permitted or required by this Agreement or as “Required by Law” as defined in 45 CFR §164.105. Except as otherwise limited in this Agreement, PPS may use or disclose on behalf of, or to provide services to, Client as specified in this Agreement provided that such use or disclosure would not violate the Privacy Rule if done by Client.

b)      not use or further disclose the PHI in a manner that would violate subpart E of 45 C.F.R. part 164 if done by Client;

c)       use appropriate safeguards to prevent use or disclosure of PHI other than as provided for in this Agreement;

d)      report to Client any use or disclosure of PHI not provided for by this Agreement of which PPS may become aware;

e)      ensure that any agents, including subcontractors, to whom PPS provides PHI agrees to the same restrictions and conditions that apply to PPS with respect to such PHI;

f)       make the PHI available to Client or as directed by Client in accordance with 45 C.F.R. §164.524 of the Privacy Rule;

g)      make available PHI for amendment to Client or as directed by Client and incorporate any amendments to PHI in accordance with 45 C.F.R. §164.526 of the Privacy Rule;

h)      make its internal practices, books and records relating to the use and disclosure of PHI available to the Secretary of the federal Department of Health and Human Services for purposes of determining the Client’s compliance with the Privacy Rule;

i)        document and make available such information pursuant to commercially reasonable directions of Client in order to provide an accounting of disclosures in accordance with 45 C.F.R. §164.528 of the Privacy Rule; and

j)        return or destroy all PHI received from, or created or received by PPS on behalf of, Client which PPS still maintains in any form at the termination of the provisions of this paragraph/section 4.1 .

As between Client and PPS, Client owns the PHI disclosed to PPS, and PPS will not, by virtue of this Agreement, own any of the PHI. Notwithstanding the termination of any other provisions of this Agreement, the provisions of this section/paragraph shall remain in full force and effect so long as PPS is permitted to retain any client Data which constitutes PHI.

4. 3 Your Responsibilities.

You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality, and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent, or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

4. 4 Usage Limitations.

Services may be subject to other limitations, such as, for example, limits on disk storage space. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.

5. FEES AND PAYMENT FOR PURCHASED SERVICES

5. 1 Fees.

You shall pay all fees specified in all Registration Forms hereunder. Except as otherwise specified herein or in a Registration Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

5. 2 Invoicing and Payment.

You will provide Us with valid and updated credit card information during the entire period We are providing You Services. You authorize Us to charge such credit card monthly in advance for all Services listed in the Registration Form Once You have subscribed for Services, in order to avoid liability for Service fees for the immediately ensuing Service Month, You must notify Us in writing no later than ten (10) days prior to the end of the current Service Month that you are terminating the Services. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

5. 3 Suspension of Service.

If for any reason We are unable to obtain payment from You or for your benefit for any Service month We reserve the right to immediately terminate the Services for such period without notice to You.

5. 4 Taxes.

Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. PROPIETARY RIGHTS

6. 1 Reservation of Rights in Services.

Subject to the limited rights expressly granted hereunder, We reserve all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6. 2 Restrictions.

You shall not (i) permit any third party to access the Services except as permitted herein or in a Registration Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame, or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions, or graphics of the Services.

6. 3 Your Data.

Subject to the limited rights granted by You hereunder, We acquire no rights, title, or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. You hereby grant to Us a license to use Your Data to create benchmarking reports so long as no information disclosed in any such reports constitutes PHI. This license shall survive termination of the Agreement and shall continue to apply to Your Data input by You into the Services through the date of such termination. For purposes of clarification, after You terminate Your use of the Services, We may continue to use Your Data input by You and include it in calculations to generate reports so long as no PHI is revealed in those reports and We are in compliance with Our obligations under Section 4.2 of this Agreement.

6. 4 Suggestions.

We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancements requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

7. CONFIDENTIALITY

7. 1 Definition of Confidential Information.

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; provided, however, for purposes of this Article 7 shall not include PHI, Our obligations with respect to which shall be separately governed by Section 4.2. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Registration Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7. 2 Protection of Confidential Information.

The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Registration Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

7. 3 Compelled Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosure Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8. WARRANTIES AND DISCLAIMERS

8. 1 Our Warranties.

We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 4.1(a) and (b), the functionality of the Services will not be materially decreased during a subscription term, and (iv)We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment Upon Termination) below.

8. 2 Your Warranties.

You warrant that You have validly entered into this Agreement and have the legal power to do so.

8. 3 Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. MUTUAL INDEMNIFICATION

9. 1 Indemnification by Us.

We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney’s fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability; and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may, in Our discretion and at no cost to You, (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the date of termination.

9. 2 Indemnification by You.

You shall defend Us against any claim, demand, suit, or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney’s fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provide that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us from all liability; and (c) provide to You all reasonable assistance, at Your expense.

9. 3 Exclusive Remedy.

This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

10. LIMITATION OF LIABILITY

10. 1 Limitation of Liability.

NIETHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $250,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).

10. 2 Exclusion of Consequential and Related Damages.

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. TERM AND TERMINATION

11. 1 Term of Agreement.

This Agreement commences on the date You accept it and continues until Your subscription granted in accordance with this Agreement has expired or been terminated.

11. 2 Surviving Provisions.

Section 5(Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.

12. NOTICES, GOVERNING LAW AND JURISDICTION

12. 1 Manner of Giving Notice.

Except as otherwise specified in this Agreement, all notices,permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending a confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or indemnifiable claims). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

12. 2 Agreement to Governing Law and Jurisdiction.

This Agreement shall be governed by and construed in accordance with the laws of the State of Mississippi without regard to choice or conflicts of law rules. Each party submits to the exclusive jurisdiction of the applicable courts, both state and federal, having jurisdiction within the State of Mississippi.

13. GENERAL PROVISIONS

13. 1 Export Compliance.

The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. governmental denied-party list. You shall not permit Users to access or use Services in a U.S.- embargoed county (currently Cuba, Iran, North Korea, Sudan, or Syria), or in violation of an U.S. export law or regulation.

13. 2 Relationship of the Parties.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

13. 3 No Third-Party Beneficiaries.

There are no third-party beneficiary to this Agreement.

13. 4 Waiver.

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

13. 5 Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13. 6 Attorney Fees.

You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).

13. 7 Assignment.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Registration Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13. 8 Entire Agreement.

This Agreement, including all exhibits and addenda hereto and all Registration forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and in any exhibit or addendum hereto or any Registration Form, the terms of such exhibit, addendum, or Registration Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Registration Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.