The following terms and conditions (“Terms and Conditions”) are part of the Maestro Interactive, Inc. (“Maestro”) license agreement or order form that references or is accompanied by these Terms and Conditions (the “Agreement”). By signing or otherwise accepting the Agreement, or by using Maestro’s software or services that are offered subject to these Terms and Conditions, you are accepting and agreeing to be bound by these Terms and Conditions.

In these Terms and Conditions, the words “Maestro,” “we,” and “us” refer to Maestro Interactive, Inc.. The words “Customer” and “you” refer to the customer of our products or services, whether a corporation, government agency, or other entity, as identified on the cover page or other customer information section of the Agreement. You may not use the Maestro Services unless you accept these Terms and Conditions and have the power and legal right to form a contract with us. Any individual subscribing to our services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Terms and Conditions, and any individual having access to our software or services under Customer’s account may access and use them only in accordance with these Terms and Conditions.

1. “Authorized User” means an individual employee or agent of yours who has been assigned unique credentials to access and use the Maestro Services.

2. Customer Data” means the video content, data and information provided by Customer and made available to Maestro in the course of Customer’s use of the Maestro Service. For clarity, Customer Data may include User Data and Customer’s Intellectual Property Rights. Customer Data does not include Platform Generated Data.

3. “Intellectual Property Rights” means any and all rights arising from or under any of the following, whether protected, created or arising under the laws of the United States of America or any other jurisdiction in the world: patents (including, but not limited to, any applications, extensions, divisions, continuations, continuations-in-part, reexaminations, reissues, and renewals related thereto), copyrights (including, but not limited to, any applications, registrations and renewals related thereto), trademarks and service marks (including, but not limited to, applications, registrations, and renewals related thereto), trade dress, trade names, trade secret and know-how and any other intellectual property or proprietary rights of any nature, by whatever name or term known or however designated.

4. “Maestro Platform” means the hosted, web-based technology platform developed by Maestro that permits its customers to upload, host, manage and edit content so that users may access and use such content, including all Updates, all Software incorporated therein, any written materials and other documentation that Maestro may make available, and all Intellectual Property Rights in the foregoing.

5. “Maestro Services” means access to and use of the Maestro Platform and the Platform Generated Data pursuant to Section 3 of this Agreement.

6. “Order Form” means Maestro’s order form, as submitted by Customer and accepted by Maestro, that specifies the licenses and services being purchased by Customer, and that references these Terms and Conditions or is otherwise made a part of the Agreement.

7. “Platform Generated Data” means any data which may be generated, recorded or automatically collated by the Maestro Platform in the course of providing the Service including, without limitation, aggregated or anonymized data that cannot be linked to individual end-users, data relating to the frequency and mode of use of the features and functionality of the Service by end-users, preference settings and personalization of the Service by end-users, the time spent on different elements of the Service, the geographical location of end-users, types of browsers and devices and other technical and statistical information derived from the operation of the Maestro Platform and its use by end-users. For the avoidance of doubt, Platform Generated Data excludes Customer Data and User Data.

8. “Software” means all software, technology, implementation tools, editing tools, documentation, text, typefaces, graphics, logos, button icons, images, audio clips, designs, illustrations, configurations, displays, screens, concepts, storyboard process, and other materials.

9. “Update” means any functional improvement, bug fix or other development that is incorporated into the Maestro Platform other than a Modification.

10. “User Data” means the data and information provided by Customer’s end users to either Customer or to Maestro in accordance with this Agreement, including, but not limited to, end user names, email or postal addresses, phone numbers and account information (excluding, for the avoidance of doubt, data generated or collected automatically by the Maestro Platform in the course of or in connection with end-users’ use of the Service).​

1. Service Subscription. Subject to your compliance with these Terms and Conditions, Maestro will provide Customer with access to and use of the Maestro Services during your paid-up subscription period (as described below) and within any service usage limits indicated in the Order Form. The Maestro Services may be accessed only through Maestro’s designated web-based interface or other tools provided by Maestro, as applicable.

2. User Registration and Acknowledgement. You agree that we may require, as a condition of any Authorized User’s use of the Maestro Services, that such Authorized User create an individual profile under your account and acknowledge their awareness of, and agreement to abide by, these Terms and Conditions and our standard privacy policy, a current version of which is posted at info.maestro.io/privacy. This section does not limit any of your responsibilities under these Terms and Conditions, including those pertaining to your Authorized Users.

3. Customer Data and Security. Maestro shall put in place all commercially reasonable security measures to protect against unauthorized access, alteration, disclosure, and destruction of the Customer Data, where possible employing industry standard technologies to do so. If Customer’s license agreement or order form includes a Data Processing Annex, such Data Processing Annex shall have effect in accordance with its terms in relation to the processing of personally identifiable data as part of the Maestro Service.

4. Usage Limitations. In addition to these Terms and Conditions, your and your Authorized Users’ rights to access and use the Maestro Services are subject to any limitations and restrictions indicated in the Order Form and any other exhibit or attachment thereto. To the extent of any conflict or inconsistency between or among any of these documents, (i) terms that explicitly modify such other inconsistent terms will govern, and (ii) otherwise, the more restrictive terms will govern.

5. Availability. We will use reasonable efforts to make the Maestro Services available without material interruption, subject to periodic downtime for scheduled maintenance; however, the parties recognize that Internet connectivity issues, unavailability of third-party databases and systems, or other factors outside of our reasonable control may limit or restrict this availability from time to time. We will use reasonable efforts to restore service in the event of unplanned unavailability within our control, and to provide you with advance notice of any scheduled unavailability. If Customer’s license agreement or order form includes service-level commitments, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached thereto. The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and Maestro’s entire obligation, with respect to any service-level violation.

6. Maintenance and Support. If the Order Form or Maestro’s relevant documentation states that you will receive maintenance and/or technical support in connection with the Maestro Services, then (unless otherwise set forth in the Order Form or such Maestro documentation): (i) maintenance will consist of access to new features or performance improvements in the Maestro Services if and when Maestro makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) technical support will consist of first-level telephone or email assistance in accordance with Maestro’s standard practices and procedures.​

1. Generally. You retain full responsibility for your and your Authorized Users’ use of the Maestro Services. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Maestro Services, including, without limitation, modems, hardware, software (including web browsers and operating systems), networking, web servers and the like, and for ensuring the security of such equipment, including account passwords and files, and the use of such equipment. Customer shall also be responsible for maintaining the security of such equipment, Customer-only account, passwords and files, and for all uses of Customer account or equipment with or without Customer’s knowledge or consent. For clarity, the preceding sentence does not diminish any usage restrictions or limitations set forth in the Agreement.

2. General Restrictions. You may not: (i) copy, reproduce, modify, adapt, decompile, disassemble, or reverse engineer the Maestro Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) use, modify, reproduce, sublicense, distribute, loan, lease, sell, license, or otherwise distribute or provide third parties with access to the Maestro Services, or use them for time sharing or similar purposes for the benefit of any third party, except as expressly permitted under this Agreement; (iii) remove, modify or obscure any copyright or proprietary notices contained in the Maestro Services or any output thereof; (iv) breach, disable, tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Maestro Services; (v) provide Customer Content that is unlawful, offensive or harassing; (vi) introduce or transmit any virus or other malicious code to or through the Maestro Services; (vii) access or use (or permit a third party to access or use) the Maestro Services for purposes of monitoring the availability, performance or functionality of the Maestro Services or for any other benchmarking or competitive purposes (viii) access or use (or permit a third party to access or use) the Maestro Services for any unlawful purpose or any manner not authorized by this Agreement.

3. Compliance. Customer is solely responsible for ensuring that Customer and its Authorized Users are aware of and comply with these Terms and Conditions, and all laws and regulations that pertain to your use of the Maestro Services or the information made available through the Maestro Services. Customer represents and warrants that it and its Authorized Users are knowledgeable as to all federal, state, and local laws and regulations pertaining to Customer’s business, operations or intended use of the Maestro Services. Customer is solely responsible for the lawful operation of any promotions, sweepstakes or contests Customer administers or offers via the Maestro Services, including any necessary bonding and registration with any State authority; and developing and communicating rules governing Customer’s promotions, sweepstakes or contests Customer administers or offers using the Maestro Services, which rules must state the basic parameters of the giveaway, including, but not limited to, how to enter, when to enter and any eligibility requirements.

1. Fees. In consideration for our providing the license and services under the Agreement, you agree to pay us the corresponding fees set forth in the Order Form.

2. Renewal Fees. For each subscription Renewal, recurring fees will be billed and paid at the rates specified in the Order Form or, if applicable, such other rates as we may establish with notice to you prior to Renewal.

3. Excess Usage Fees. Our service plans may include usage limits as indicated in the Order Form or our applicable published documentation. If usage under your account exceeds the applicable limits, we may upgrade you to a higher service plan as needed to cover the additional usage and charge you for the difference in service plan fees at our then-current published rates.

4. Billing; Payment. Unless otherwise specified on the Order Form, we will bill you in advance at the beginning of the subscription period and each Renewal (and, in the case of excess usage fees, upon upgrading you to a higher service plan). All payments shall be made in U.S. dollars via wire transfer, credit card or check in accordance with instructions provided by Maestro. If the Order Form specifies payment by credit card or another method that we can initiate, you authorize us to initiate such payment at that time, and in any case, any invoice not paid within thirty (30) days of the invoice date will be overdue. Overdue amounts will accrue interest at the rate of 1% per month, but in no event greater than the highest rate of interest allowed by law. If at any time an invoice remains unpaid for ninety (90) days, Maestro may (in addition to termination rights under Section 6.2) suspend Customer’s access to the Maestro Services and may engage a collections agency to collect the full amount due, including the Total Minimum Commitment specified in the Order Form, and any additional usage fees.

5. Taxes. The fees specified in the Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than our U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.​

1. Duration and Renewal. Your subscription for the Maestro Services will remain in effect throughout the initial subscription term specified in the Order Form (unless terminated as set forth below), and will automatically renew for successive periods of one year or such other duration as may be specified in the Order Form (each, a “Renewal”) unless either party gives the other party written notice of non-renewal at least thirty (30) days in advance. The Agreement will expire at the end of your subscription as described above.

2. Termination. A party may terminate the Agreement for a material breach by the other party that (i) remains uncured more than thirty (30) days after receiving written notice of the breach or (ii) is, by its nature, uncurable. In addition, Maestro may terminate the Agreement five (5) business days following Customer’s receipt of written notice that it is late in paying fees due. We may also terminate upon written notice if we become unable to provide the Maestro Services due to unavailability of third-party licenses or services or other causes outside our reasonable control, or if we discontinue the Maestro Services generally; if that occurs, we will provide you with a prorated refund of prepaid fees for the period affected by our termination.

3. Effect of Termination; Survival. Upon expiration or termination of the Agreement for any reason, all outstanding fees will immediately become due and payable, your subscription for the Maestro Services will automatically terminate, and you will immediately cease using the same. The following provisions will survive expiration or termination of the Agreement: Sections 3.3, 4.2, 5 (to the extent of any outstanding payment obligations), 6.3, 7, 8, 9, 10, 11, and 12.

1. Maestro Intellectual Property. As between Maestro and Customer, Maestro is and will remain the sole owner of the Maestro Services and all software and technologies embodied in or used to provide the Maestro Services, including the Maestro Platform and the Platform Generated Data, and all Intellectual Property Rights therein or relating thereto. We reserve all rights in the foregoing other than the limited, non-exclusive license and access rights that we expressly grant to you in these Terms and Conditions. If you provide any suggestions or other feedback in relation to our products and services, we will be free to use (or not use) the same without restriction and without any compensation or other obligations to you..

2. Customer Data. Maestro acknowledges and agrees that, as between Customer and Maestro, all worldwide right, title and interest in and to the Customer Data is and shall remain the exclusive property of Customer, subject only to the rights expressly granted to Maestro under this Agreement. The parties acknowledge and agree that we will transmit, store, and otherwise process Customer only as a data processor, and not as a data controller.

3. Our Security Measures. We will employ reasonable and appropriate (and all legally mandated) environmental, safety and facility procedures, data security and backup procedures, and other safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of Your Data as stored or otherwise processed by the Maestro Services.

4. Your Security Measures. You agree to limit access to the Maestro Services to only those Authorized Users who have a need to know the output of the same as a part of their official duties for you. You must immediately deactivate (or notify us to deactivate) the access credentials of any of Authorized User who has been terminated or who no longer has a need to know. You shall ensure that your Authorized Users keep their access credentials secure and that individual credentials are assigned to and known by no more than one Authorized User. You shall take reasonable and appropriate (and all legally mandated) measures to prevent unauthorized physical or electronic access to the Maestro Services by any unauthorized persons, and to prevent any unlawful access to or use of Your Data. Such measures will include appropriate data destruction policies where applicable.​

1. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed by one party to the other in connection with the Agreement or the Maestro Services that is designated as confidential or should be reasonably understood to be confidential (including our pricing). The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Terms and Conditions. Notwithstanding the foregoing, the receiving party may disclose the other party’s Confidential Information (a) to employees and personnel, including the employees, agents, and personnel of affiliates and its subcontractors, that have a need to know such information, provided that each such person is under a duty of nondisclosure that is consistent with the confidentiality and nondisclosure provisions herein, and (b) to the extent the receiving party is legally compelled to disclose such Confidential Information, provided that the receiving party shall give advance notice of such compelled disclosure to the other party, and shall cooperate with the other party in connection with any efforts to prevent or limit the scope of such disclosure or use of the Confidential Information. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
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2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section 8.

3. Remedies. The parties recognizes that the Confidential Information is of a special, unique, extraordinary and intellectual character, which gives it peculiar value, the loss of which may not be reasonably or adequately compensated in damages in any action at law and that a breach of this Section 8 may cause irreparable injury and damage. In addition to any other remedies in equity or at law, the disclosing party will be entitled to seek the remedies of injunction, specific performance and other equitable relief to prevent a breach of this Section 8 by the receiving party without the necessity of proving damages.

EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS AND CONDITIONS, THE MAESTRO SERVICES AND ANY RELATED MATERIALS OR SERVICES WE MAY FURNISH UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. MAESTRO DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

1. By Maestro. We will defend and indemnify you against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) against you to the extent based upon an allegation that the Maestro Services, as furnished by Maestro hereunder and used by Customer within the scope of these Terms and Conditions, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MAESTRO WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE MAESTRO SERVICES. Maestro will have no liability under this Section 10.1 to the extent that any Claims are based on any combination of the Maestro Services with products, services, methods, content or other elements not furnished by Maestro or otherwise approved by Maestro, or any use of the Maestro Services in a manner that violates these Terms and Conditions or our applicable documentation.

2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 10.1, Maestro may, in its discretion, seek to mitigate the impact of such Claim by modifying the Maestro Services to avoid the infringement, and/or by suspending or terminating your access to the Maestro Services upon reasonable notice (provided, in the case of such suspension or termination, that we will refund a portion of any fees that you have prepaid for the then-current subscription period, based on the portion of that subscription period that is affected by our suspension or termination).
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3. By Customer. You will defend and indemnify us against any Claims (i) arising from or related to your violation of the Agreement, or (ii) based upon an allegation that the Customer Data or other trademarks delivered to Maestro by Customer, when used as permitted hereunder, infringe any copyright or any U.S. patent or trademark rights of any third party.

4. Procedures. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.​

1. Wavier of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAESTRO AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, (COLLECTIVELY, THE “MAESTRO ENTITIES”) WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAESTRO SHALL NOT BE LIABLE FOR ANY EXPENSE OR DAMAGE ARISING OUT OF ANY ERASURE, DAMAGE OR DESTRUCTION OF CUSTOMER DATA. CUSTOMER SHALL BE RESPONSIBLE FOR MAKING BACKUP COPIES OF CUSTOMER DATA.
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2. Liability Cap. THE CUMULATIVE LIABILITY OF THE MAESTRO ENTITIES FOR DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR THE SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO MAESTRO UNDER THE AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
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3. Basis of Bargain. The foregoing exclusions of damages and limitations of liability, and the allocation of risk they represent, are an essential, bargained-for part of the Agreement, and will apply to the fullest extent permitted by law, even if any limited remedy fails of its essential purpose.

1. Publicity. Maestro may identify Customer, by name and by logo, as a customer of the Maestro Services on Maestro’s website and other marketing and investor materials. Otherwise, neither party will issue any press release or other public communications regarding the parties’ relationship under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld.

2. Assignment. You may not assign the Agreement, in whole or in part, without our prior written consent, which will not be unreasonably withheld. Any attempt by you to assign the Agreement without such consent will be null and of no effect. We may assign the Agreement to any of our affiliates or to any successor or acquirer of our business or of our rights or assets associated with the Maestro Services. Subject to the foregoing, the Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

3. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation or the like, so long as such party makes every reasonable effort to perform as circumstances permit.

4. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Maestro Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations.

5. Government Rights. If Customer is the U.S. government or any agency or other division thereof, Maestro’s software and services are furnished under the Agreement as “commercial items,” and more specifically as “commercial computer software” and “commercial computer software documentation” (as applicable), as those terms are defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to such software and services (and to any associated technical data or other materials) are limited to those rights expressly granted in these Terms and Conditions.

6. Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, its remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

7. Waiver. The waiver of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.

8. Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify by notice as described above. Notices will be deemed to have been given upon receipt.

9. Governing Law. The Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the state of California, County of Los Angeles, or the United States District Court for the Central of California. Each party submits itself to the exclusive jurisdiction and venue of these courts for purposes of proceedings related to this agreement, waives forum non conveniens and similar defenses, and agrees that any service of process may be effected by delivery of the summons to the address of the party specified on the Order Form or such other address as either party may specify by notice as described above.

10. Revisions to Terms and Conditions. We may change these Terms and Conditions and our policies from time to time. We may inform you of any such changes by posting the revised version to our website at the same URL as the original version. Unless otherwise agreed by the parties, any such changes will take effect for your subscription upon the next Renewal if we have posted or otherwise informed you of the revision prior to the deadline for giving non-renewal notice.

11. Entire Agreement. Except as provided in Section 12.10, any amendment or modification to the Agreement must be in writing signed by both parties. The Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.