Subscriber Agreement – Marine Digital Retailing

Last Updated: December, 2024

Unless otherwise provided in an Order Form (defined below), the client listed on the Order Form (“Client“) and Coast Ventures LLC. (DBA “Marine Digital Retailing™“) accept and agree to be bound by this Subscriber Agreement (this “Agreement“) as of the date of Acceptance (defined below) of this Agreement by Client (the “Agreement Effective Date“). Each of Marine Digital Retailing™ and Client is referred to in this Agreement as a “Party” and together the “Parties.” BY ACCEPTING THIS AGREEMENT OR THE ORDER FORM OR OTHERWISE ACCESSING OR USING ANY SERVICE (DEFINED BELOW), CLIENT AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

DEFINITIONS. In addition to the capitalized terms defined throughout this Agreement, the following defined terms will have the meanings provided in this Section 1. Any capitalized terms used but not defined in this Agreement have the meanings provided for them in the Order Form.

“Acceptance” means the date that is the earlier of when (i) this is Agreement is electronically or hand-signed by Client, (ii) Client clicks through to accept this Agreement, (iii) Client signs or clicks through to accept the Order Form, or (iv) Client otherwise begins accessing or using any Service.
“Activation Date” means the date referenced in the applicable Order Form as being the date on which a Subscription starts. If no date is specified on the Order Form, the Activation Date will be the date on which Client initially receives access to the applicable Service.
“Affiliate” means any entity that directly or indirectly (through one or more intermediaries) Controls, is Controlled by, or is under common Control with a Party.
“Analytics Data” means any usage, analytics, performance, and other similar data and information, other than Client Content, generated in connection with use of the Services by Marine Digital Retailing’s customers (including Client and its Authorized Users).
“API” means an application programming interface provided in connection with a Service.
“Authorized User” means a user of the Services that has been authorized by Client.
“Client Content” means any Content provided by or on behalf of Client to Marine Digital Retailing™in connection with Client’s use of a Service. Client Content does not include Analytics Data or Licensed Content but does include any other Content owned, controlled, or licensed by Client and made available to Marine Digital Retailing™in connection with a Service.
“Client Resource” means any product, service, software, system, Content, material, equipment, or other resource (including those licensed from third parties) that Client may use to connect to or integrate with a Service.
“Content” means, collectively, any text, information, data, images, audio, video, or other materials in any form or medium.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise.
“Documentation” means any Service descriptions or documentation, including manuals and materials, provided or otherwise made available by Marine Digital Retailing™to Client as part of the Services.
“Feedback” means any information, suggestions, ideas, enhancement requests, recommendations, comments, and other feedback that Client may disclose, transmit, suggest, or provide to Marine Digital Retailing™or Marine Digital Retailing™’s Affiliates with respect to any Service.
“Fees” means, collectively, all fees due and payable by Client as specified in the applicable Order Form.
“Intellectual Property” means any and all ideas, know-how, inventions, concepts, data, know-how, discoveries, improvements, developments, methods, techniques, technologies, systems, technical information, specifications, analyses, tools, products, practices, processes, procedures, protocols, research, tests, trials, controls, data, prototypes, formulas, designs, descriptions, formulations, protocols, submissions, communications, skills, experience, plans, objectives, algorithms, reports, results, conclusions and other intellectual property, whether or now copyrightable or patentable, in any form or medium, and all patent, copyright, trademark, trade secret, or other proprietary rights in any of the foregoing arising at any time under the laws of any jurisdiction.
“Licensed Content” means the Content owned, controlled, or licensed by Marine Digital Retailing™or its Affiliates and made available by Marine Digital Retailing™to Client in connection with a Service.
“Modifications” means all changes, upgrades, updates, enhancements, configurations, customizations, or other modifications to, or derivative works of, a Service.
“Order Form” means any Order Form referencing this Agreement that is executed by the Parties, including any supplements and amendments to that Order Form.
“Personal Information” means Client Content that (i) directly or indirectly identifies an individual or (ii) can be used to authenticate an individual. Client’s business contact information is not by itself Personal Information.
“Representatives” means the applicable Party’s agents, employees, officers, directors, advisors, and contractors.
“Schedule” means any schedule containing Service Terms provided by Marine Digital Retailing™to Client that references this Agreement and relates to the Services.
“Service” means the Marine Digital Retailing™product of service identified on the applicable Order Form, including all Modifications, Documentation, and Content provided in connection the product or service.
“Service Terms” means the Service-specific terms and conditions provided in a Schedule, which may be attached to this Agreement, linked to in this Agreement, or otherwise provided by Marine Digital Retailing™in connection with Client’s use of the applicable Service.
“Subscription” means Client’s right to access and use one or more Services during the applicable Subscription Term, subject to payment of Fees as set forth in the applicable Order Form.
“Subscription Term” means the period during which a Subscription is active, as specified in the applicable Order Form.

SERVICES; SUBSCRIPTION.

Services. This Agreement, together with the applicable Order Form and any Service Terms, provides the terms and conditions under which Marine Digital Retailing™ (or the Marine Digital Retailing™ Affiliate listed on the Order Form) will provide Services to Client. If a Marine Digital Retailing™ Affiliate is identified in an Order Form, all references to Marine Digital Retailing™in this Agreement will be deemed to refer to that Affiliate, and that Affiliate will be solely responsible for obligations and liability related to the Order Form.
Client Obligations. Client will be solely responsible for ensuring that (i) it has obtained all rights to the Client Resources necessary for Client to access and use, and for Marine Digital Retailing™ to provide, the Services; (ii) it will maintain confidentiality of its login credentials and any Client Content it uses or accesses in connection with the Services; (iii) Client Content is and will remain free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used by Marine Digital Retailing™or its service providers to provide the Services; and (iv) Client, Authorized Users, and all Client Content complies with all applicable laws, rules, and regulations and all security and other guidelines provided by Marine Digital Retailing™ to Client. Client will, and will require Authorized Users to, change all passwords used to access the Services at regular intervals. If Client believes a third party may have obtained knowledge of an Authorized User’s password. Client will notify Marine Digital Retailing™ immediately and promptly change the password. Client is solely responsible for all use of the Services through its login credentials and for all acts and omissions of its Authorized Users.
License Grant. Subject to Client’s compliance with the terms, conditions, and limitations set forth in this Agreement, Marine Digital Retailing™ hereby grants Client a limited, non-exclusive, non-transferrable, non- sublicensable right for Authorized Users to access and use the Services, including any Licensed Content, during the Subscription Term solely for Client’s own business purposes as permitted by this Agreement. Client’s use of the Services in connection with its provision of services to its customers is considered use of the Services for Client’s own business purposes under this Agreement.
Subscription Term. Except as otherwise specified on the applicable Order Form, the Subscription Term will start on the Activation Date and will expire at the end of the period provided on the Order Form (the “Initial Subscription Term”). Thereafter, the Subscription Term will automatically renew for subsequent periods of equal length unless earlier terminated or either Party provides the other written notice of nonrenewal at least 60 days prior to the expiration of the then-current term.
Integrations. To the extent integration is required between a Client Resource and a Service, Client hereby (i) grants to Marine Digital Retailing™, its Affiliates, and their service providers the right to access and use the applicable Client Resource for the purposes of facilitating and providing the integration, and (ii) consents to the integration with the Client Resource(s). Client will be solely responsible for payment of any third-party fees associated with any integration of a Client Resource and a Service. If Marine Digital Retailing’s ability to provide the Services is contingent on integration with Client Resources, Client will ensure it maintains and makes available to Marine Digital Retailing™ the Client Resources to enable Marine Digital Retailing™ to provide the Services to Client.
Trial Versions. Non-production, non-commercial versions of a Service (“Trial Versions”) may be offered to Client at Marine Digital Retailing's sole discretion. Trial Versions are provided for testing and evaluation purposes only and are not guaranteed to work properly. Client acknowledges that Trial Versions may cause Client Resources with which the Trial Versions interact not to work properly. Notwithstanding anything to the contrary in this Agreement, Client assumes all risks associated with Trial Versions. Marine Digital Retailing™may extend or discontinue Client’s access to Trial Versions at any time without notice. Nothing in this Section 2.f. is intended to confer or will be deemed to confer any ownership or other proprietary right to Client in or to any Trial Versions, including any Intellectual Property rights therein.
Analytics Data. As between the Parties, Marine Digital Retailing™owns and has the right to freely collect, aggregate, use, transfer, and disclose Analytics Data, provided the Analytics Data does not reference Client or individually identify Client as the source of the data.
Changes to the Services. If Marine Digital Retailing™ makes a material Modification that does not enhance the features, functionality, or architecture of the Service, Marine Digital Retailing™ will use commercially reasonable efforts to notify Client prior to the effective date of the Modification, provided that Marine Digital Retailing™ reserves the right to change or modify any Service at any time. If Marine Digital Retailing™ notifies Client of a Modification as required in this Section 2.h. and Client does not wish to use the Service after receipt of the notification, Client may, within 30 days after receipt, provide Marine Digital Retailing™ with written notice that it rejects the Modification. If Client rejects a Modification, Marine Digital Retailing™ may, in its sole discretion, choose to continue to offer Client the Service without the Modification or terminate this Agreement and/or the affected Order Form with 30 days’ written notice. If Client provides no written notice to Marine Digital Retailing™ within the 30-day period, Client will be deemed to have accepted the Service with the Modification and this Agreement and the affected Order Form will continue in full force and effect. Upon termination under this Section 2.h., Client’s exclusive remedy and Marine Digital Retailing’s sole liability is to refund any prepaid and unused Fees as of the effective date of the termination. Nothing in this Section 2.h. requires Marine Digital Retailing™ to continue to provide any portion of the Services if it would result in Marine Digital Retailing™ violating the rights of any third party or any applicable law.
Third-Party Content. The Services may provide or enable Client to access Content provided directly by a third party. Marine Digital Retailing™ does not endorse and is not responsible for any third-party Content. Use by Client of the third-party Content may be subject to different terms and conditions of use. Marine Digital Retailing™ is not liable for any damage or loss of any kind incurred as a result of any dealings between Client and any third party.

RESTRICTIONS. Client will not, and will ensure that none of its Representatives or Authorized Users, access or use the Services in any manner not expressly permitted under this Agreement, including to do any of the following: (i) license, sell, rent, lease, lend, transfer, outsource, or otherwise provide a third party access to the Services or any Content; (ii) use the Services in any manner that Marine Digital Retailing™reasonably believes is abusive or that is contrary to applicable laws, rules, or regulations; (iii) remove, obscure, or alter any Marine Digital Retailing™ or third-party copyright notices, trademarks, or other proprietary rights notices on any Service, including any Content made available through the Service; (iv) reproduce, copy, modify, translate, or create derivative works of or relating to any Service; (v) reverse engineer, decompile or disassemble any Service, including any Content made available through the Service and any underlying technology or Intellectual Property comprising the Service, except to the extent expressly allowed by applicable law notwithstanding this limitation; (vi) upload or otherwise provide to Marine Digital Retailing™ any Client Content or other Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful or racially, ethnically or otherwise objectionable; (vii) attempt to gain unauthorized access to, disrupt, or otherwise interfere with the integrity or performance of the Services or any network, equipment, or other systems used to provide the Services; (viii) circumvent any user authentication or other security processes of the Services; (ix) develop or promote any product or service competitive with Marine Digital Retailing™, the Services, or any other product or service available by Marine Digital Retailing™ or its Affiliates; (x) challenge, or cooperate with or assist any other person or entity to challenge, any of Marine Digital Retailing’s (or its Affiliates’ or licensors’) rights or interests in or to the Services, except with Marine Digital Retailing™’s prior written consent; (xi) evaluate, benchmark, or otherwise conduct comparative analysis on any Service without Marine Digital Retailing™’s prior written consent; or (xii) scrape or data mine any Service or any other product, service, application, or website of Marine Digital Retailing™ or its Affiliates, including any Content made available in connection with any of the foregoing.
CLIENT CONTENT.

Consent. Client is solely responsible for compliance related to how Client chooses to interact with the Services, including transfer and processing of Client Content by or through the Services and the provision of Client Content to Authorized Users and third parties. Client hereby grants all such rights and permissions to Marine Digital Retailing™, its Affiliates, and their service providers in and relating to Client Content as may be necessary or useful for Marine Digital Retailing™ to provide the Services, to enforce this Agreement, and to operate and improve the Services. Without limiting the foregoing rights and permissions, Marine Digital Retailing™ will only use Personal Information in compliance with applicable laws, rules, and regulations and to provide the Services to Client, and Client consents to Marine Digital Retailing’s collection, use, and disclosure practices described in this Agreement.
Data Security. Each Party will, as applicable, implement, use, and maintain appropriate administrative, physical, and technical security measures to maintain and ensure the confidentiality, integrity, availability, and security of each Party’s Confidential Information and Content exchanged, used, or accessed in the performance and receipt of the Services. Marine Digital Retailing™ will use reasonable efforts, consistent with applicable law, to notify Client if Marine Digital Retailing™ becomes aware of any unauthorized disclosure of Personal Information. Marine Digital Retailing™may monitor Client’s compliance with this Agreement. Notwithstanding the foregoing, Marine Digital Retailing™ is not responsible for the transfer of any Content, including Client Content, over telecommunications facilities, including the Internet, and Marine Digital Retailing™ does not warrant secure operation of the Services or that security technologies will be able to prevent disruption to any Service.
Data Protection Legislation. By making Client Content available for use in connection with the Services, Client warrants that it has all rights, licenses, and consents necessary to provide the Client Content to Marine Digital Retailing™ for use in connection with, and for the purposes contemplated by, the Services (including any consents required by applicable data protection laws, rules, and regulations).
Use of Client Content. In addition to the rights granted to Marine Digital Retailing™ elsewhere in this Agreement, Client grants Marine Digital Retailing™, its Affiliates, and their service providers the right to access, use, process, and disclose Client Content to facilitate any transactions between Client and its customers and to otherwise communicate with and provide the Client Content in connection with the Services or Marine Digital Retailing’s related products and services.

CONFIDENTIAL INFORMATION.

Definition. “Confidential Information” means all non-public information whether in oral, written, graphic, electronic, or other form, disclosed by a Party to the other Party that is designated as confidential or provided under circumstances reasonably indicating that the information or material is proprietary or confidential. Confidential Information includes all non-public portions of the Services, information about the Services, technical information, processes, methods, data, research, test results, and other Content, and the existence and terms of this Agreement, but does not include Client Content. The provisions governing Client Content are set forth elsewhere in this Agreement (e.g., Section 4 (Client Content) above).
Exclusions. Confidential Information does not include information that: (i) is now, or hereafter becomes, through no act or failure to act on the part of the Party receiving the Confidential Information, generally known or available to the public; (ii) is or was known by the receiving Party at or before the time that information was received from the other Party; (iii) is furnished to the receiving Party by a third party that is not under an obligation of confidentiality with respect to that information; or (iv) is independently developed by the receiving Party without any breach of this Agreement.
Obligations. Each Party will treat Confidential Information of the other Party and its Affiliates with at least the same degree of care as it would its own confidential information and use no less than reasonable care to protect it from unauthorized use and disclosure. Each Party will, except as otherwise expressly allowed by this Agreement: (i) limit the use of the other Party’s Confidential Information solely for purposes directly related to the Services; and (ii) restrict the use of and access to the Confidential Information to its and its Affiliates’ Representatives with a need to know and who, in each case, are bound by confidentiality and non-use obligations consistent with this Agreement. The receiving Party may disclose Confidential Information of the other Party if required pursuant to a judicial or governmental request, requirement or order, provided that the receiving Party takes reasonable steps to give the other Party sufficient prior notice in order to contest that request, requirement or order (to the extent legally permissible). Unless otherwise expressly provided in this Agreement, upon any expiration or termination of this Agreement, or at any time upon request, a Party will promptly return or destroy the other Party’s Confidential Information.
Equitable Relief. Client acknowledges and agrees that if there is any unauthorized use, reproduction, distribution, or disclosure of any Marine Digital Retailing™ Confidential Information, an adequate remedy at law may not be available and, therefore, Marine Digital Retailing™may seek injunctive or other equitable relief to restrain the use, reproduction, distribution, or disclosure, whether threatened or actual.

PROPRIETARY RIGHTS.

Ownership by Marine Digital Retailing™. Except as expressly granted under this Agreement, Marine Digital Retailing™ and its licensors is and will remain the sole and exclusive owner of all right, title, and interest in and to: (i) the Services, including all Licensed Content, Analytics Data, and any other Content (excluding Client Content) made available through or generated in connection with the Services, and all Intellectual Property related to any of the foregoing; (ii) its Confidential Information; and (iii) all Feedback.
Ownership by Client. Except as expressly granted under this Agreement, Client is and will remain the sole and exclusive owner of all rights, title, and interest in and to: (i) all Client Content; and (ii) its Confidential Information.

TERM AND TERMINATION.

Term. Unless earlier terminated in accordance with this Agreement, the term of this Agreement (the “Initial Term”) starts on the Agreement Effective Date and will expire on the later of (i) the first anniversary of the Agreement Effective Date and (ii) the expiration of the Initial Subscription Term. Thereafter, this Agreement will automatically renew for subsequent periods of equal length (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either Party provides written notice to the other of nonrenewal at least 60 days prior to the expiration of the then-current term. Unless the Parties otherwise agree in writing (including in the Order Form), all Subscription Terms will be coterminous with the Term; provided that, if only a particular Order Form expires or is terminated, this Agreement and all other Order Forms will remain in effect for the duration thereof.
Termination; Suspension.
1. If either Party is in breach of this Agreement or an Order Form, the non-breaching Party may terminate this Agreement, including all Order Forms, or the applicable Order Form provided that it has given the other Party written notice of the breach and, if the breach is capable of cure, at least 30 days to cure.
2. If either Party initiates (whether voluntarily or involuntarily) bankruptcy, insolvency, or other similar proceedings, the other Party may immediately terminate this Agreement, including all Order Forms, if the proceedings have not been dismissed with prejudice within 90 days after initiation.
3. Marine Digital Retailing™ may, at any time in its sole discretion, suspend any Subscription if Marine Digital Retailing™reasonably believes that Client’s access to or use of the Service(s) presents a threat or harm to the Service(s), Marine Digital Retailing™, its Affiliates, or any of their other customers, including if any Fees remain unpaid for a period of 15 days after notice from Marine Digital Retailing™.
Effect of Termination. The end of the Subscription Term or the Term, as applicable: (i) all rights granted to Client and all obligations of Marine Digital Retailing™relating to Client’s Subscription(s) will immediately terminate; (ii) Client will immediately cease access to and use of all Services and promptly delete all copies of Documentation; (iii) Marine Digital Retailing™will have no obligation to store, retain, delete, or return Client Content after the Term; and (iv) all unpaid Fees will immediately become due and payable to Marine Digital Retailing™.
Survival. The following sections will survive any expiration or termination of this Agreement: 6, 7, 8, 10, 11, and 12, as well as all outstanding payments under this Agreement.

FEES AND PAYMENT TERMS.

Fees and Payment Terms. Client will pay all Fees in accordance with this Agreement and the applicable Order Form. Except as otherwise expressly set forth in the applicable Order Form, Marine Digital Retailing™will invoice Client for the Services in advance. Client will pay all invoices within 30 days after the date of the invoice. Marine Digital Retailing™ reserves the right to increase Fees no more than once per calendar year by providing written notice to Client at least 45 days prior to the effective date of the increase. A finance charge of 1.5% per month or, if less, the highest amount allowed by law will be assessed on all payments not paid when due. Payments will be invoiced and made in United States Dollars. Client will not have any right to withhold or reduce Fees under this Agreement or set off any amount against Fees owed. Except as set forth in Section 2.h. or expressly set forth in the applicable Order Form, all paid Fees are non-refundable. For Fees to be paid by electronic funds transfer, Client hereby authorizes Marine Digital Retailing™ to initiate electronic funds transfer from Client’s bank account as indicated in the applicable Order Form. All payments made by electronic funds transfer will be payable with immediately available funds. For Fees to be paid by credit card, Client acknowledges that additional fees or conditions may apply to the transaction and agrees to pay the additional fees and comply with the conditions, as applicable.
Taxes and Expenses. Fees and other charges described in this Agreement, on an Order Form, or in any of Marine Digital Retailing’s list of prices, do not include federal, state, or local sales, foreign withholding, use, property, excise, service, or similar taxes (including any sales or value added taxes) (“Taxes”) now or hereafter levied, all of which are Client’s responsibility. Marine Digital Retailing™, however, will be responsible for all Taxes based upon its net income. With respect to state or local sales Tax, Client’s direct-pay permits or valid tax-exempt certificates must be provided to Marine Digital Retailing™ prior to the Effective Date. If Marine Digital Retailing™ is required to pay any Taxes, Client will reimburse Marine Digital Retailing™ for those amounts. Client hereby agrees to indemnify Marine Digital Retailing™ for all Taxes and related costs, interest and penalties paid or payable by Marine Digital Retailing™. If set forth in the Order Form, Marine Digital Retailing™may invoice Client and Client will pay Marine Digital Retailing™ all reasonable and actual out-of-pocket costs and expenses incurred by Marine Digital Retailing™ in performing the Services.

REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES.

Warranties. Client represents and warrants to Marine Digital Retailing™ that:
1. Client will comply at all times with all applicable laws, rules, and regulations in connection with the use of and access to the Services, including all applicable data protection laws and those relating to unfair competition, deceptive trade practices, advertising, and consumer protection;
2. Client will implement, maintain, and periodically test appropriate information security measures and data protection safeguards consistent with industry standards and applicable laws, rules, and regulations to ensure reasonable security and confidentiality of login credentials for all Services;
3. Entering into this Agreement and the applicable Order Form does not and will not conflict with or violate any other agreement with any third party;
4. Client will cause its Representatives, Authorized Users, and end users to act in a manner that ensures compliance with this Agreement and the applicable Order Form;
5. Client has and will retain all rights, licenses, and consents necessary to grant the rights and licenses under this Agreement and to otherwise provide the Content provided to Marine Digital Retailing™in connection with this Agreement; and
6. Client will not provide to Marine Digital Retailing™ or its Affiliates any Personal Information, including any sensitive personal information, except (1) if and to the extent contemplated by an applicable Service, or with explicit consent of Marine Digital Retailing™, (2) in compliance with all applicable data protection laws, rules, and regulations and, if necessary, a data processing agreement executed by the Parties, with proper notice and consent for both Parties’ collection and use of such Personal Information as contemplated hereunder, and in compliance with Client’s own privacy policies; and (3) to the extent Client has procured all rights, licenses, and consents, and has all power and authority necessary, to provide Personal Information to Marine Digital Retailing™and/or to enable Marine Digital Retailin’s collection, use and disclosure of the same.
Disclaimer of Warranties. Although Marine Digital Retailing™will use reasonable efforts to provide accurate and reliable Services under this Agreement, neither Marine Digital Retailing™ nor any of its Affiliates or their licensors warrant the availability, adequacy, or accuracy of the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Marine Digital Retailing™, ITS AFFILIATES, AND THEIR LICENSORS PROVIDE THE SERVICES “AS-IS” AND “AS-AVAILABLE,” AND HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE SERVICES AND LICENSED CONTENT OR ANY RESULTS TO BE OBTAINED FROM THE USE THEREOF, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.

INDEMNIFICATION.

Indemnification by Marine Digital Retailing™. Marine Digital Retailing™ will indemnify, defend, and hold Client harmless from and against all losses, damages, liabilities, penalties, fines, judgments, and expenses, including reasonable attorneys’ fees and costs (collectively, “Losses”), incurred by Client arising out of any third-party claim (each, a “Claim”) against Client that any Service, if used by Client in accordance with the terms of this Agreement, infringes any Intellectual Property right of the third party. In the event of a Claim, Marine Digital Retailing™ will have the right to terminate this Agreement with respect to the allegedly infringing portion of the Services by giving written notice to Client and by refunding to Client the pro rata share of any prepaid, unused Fees relating to the infringing portion of the Services. THE INDEMNITY SET FORTH IN THIS SECTION 10.a. STATES Marine Digital Retailing™’S ENTIRE OBLIGATION AND LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
Indemnification by Client. Client will indemnify, defend, and hold Marine Digital Retailing™, its Affiliates, and their Representatives (each, a “Marine Digital Retailing™ Indemnitee”) harmless from and against all Losses incurred by any Marine Digital Retailing™Indemnitee arising from or related to (i) any use of or access to any Service by or on behalf of Client or its Authorized Users, (ii) any noncompliance by Client, its Authorized Users, or any of its Representatives with the terms of this Agreement, (iii) Marine Digital Retailing’s provision of or otherwise transmitting of any Content as directed by Client, (iv) any claim by an end user or customer of Client or any other purchaser of any vehicle or any other Client product or service, and (v) any claim with respect to the willful misconduct, fraud, or gross negligence of Client, its Authorized Users, or Representatives.
Indemnification Process. The indemnified Party must give prompt written notice of each Claim to the indemnifying Party and the indemnifying Party may select counsel of its choice that is reasonably acceptable to the indemnified Party. A Party’s failure or delay to provide requisite notice will not relieve the indemnifying Party of its obligations except to the extent it is materially prejudiced by the failure or delay. The indemnifying Party will have sole control over the defense and settlement of all Claims, provided that the indemnifying Party will not enter into any settlement that imposes any liability or material obligation on the indemnified Party without such Party’s prior written approval. The indemnified Party may participate in the proceedings at its sole cost and expense with counsel of its choice.

LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MARINE DIGITAL RETAILING™ OR ITS AFFILIATES HAVE ANY LIABILITY, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, TO CLIENT OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, EVEN IF MARINE DIGITAL RETAILING™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND MARINE DIGITAL RETAILING’S MAXIMUM LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO MARINE DIGITAL RETAILING™ WITH RESPECT TO THE APPLICABLE SERVICE UNDER THE ORDER FORM GIVING RISE TO THE LIABILITY.
MISCELLANEOUS.

Record Retention; Audit. During the Term and for 1 year thereafter (or longer if required by applicable law based on the nature of the books and records), Client will maintain complete and accurate books and records relating to its use of the Services and other activities conducted under this Agreement. Marine Digital Retailing™ may upon reasonable request to Client review Client’s books and records during normal business hours to determine compliance with this Agreement. Client agrees to reasonably cooperate at its expense with Marine Digital Retailing’s review and provide all reasonably requested assistance and access as required by this Agreement.
Feedback. Client agrees that any Feedback that it provides to Marine Digital Retailing™ is given voluntarily. Notwithstanding Section 4 or Section 5 of this Agreement, even if Client designates Feedback as confidential, the Feedback is not Client Content or Client’s Confidential Information and Marine Digital Retailing™ is free to, and Client grants to Marine Digital Retailing™ the perpetual, irrevocable right to, use, disclose, reproduce, license, or otherwise distribute or exploit the Feedback without any obligations or restrictions of any kind, including Intellectual Property rights or remuneration obligations.
Force Majeure. Marine Digital Retailing™ will not be liable for any delay or default in its performance of any obligation under this Agreement caused directly or indirectly by an act or omission of Client, fire, flood, act of God, acts of government, strike, lockout or other labor problem, inability to secure labor, materials, or supplies, failures of subcontractors or suppliers, war, riot, embargo, or civil disturbance, or any other cause beyond Marine Digital Retailing’s reasonable control (each a, “Force Majeure Event”).
Remedies. Except as otherwise provided in this Agreement, all remedies are cumulative.
Notices. Except as otherwise expressly set forth in this Agreement, all notices given by one Party to the other under this Agreement will be in writing and will be personally delivered, mailed by certified mail (return receipt requested and postage prepaid), or sent via overnight delivery by a nationally recognized courier service, sent to the addresses specified on the most recent Order Form or at the address that a Party designates in a notice to the other Party.
Modification. Marine Digital Retailing™ reserves the right to change this Agreement any time upon notice. Marine Digital Retailing™ may give notice by making the updated Agreement available to Client or by any other reasonable means. If Client does not agree to the updated Agreement, Client must stop using the Services. Client’s continued use of the Services after the effective date posted at the top of this Agreement constitutes Client acceptance of the updated Agreement.
Construction. If any part of this Agreement is held to be illegal, invalid, or unenforceable, that part will be enforced to the fullest extent permissible to effect the Parties’ intent, and the remainder will continue in full force. All decisions to be made by Marine Digital Retailing™ under this Agreement (no matter how described) are to be made in its sole discretion, unless stated otherwise. Any list of examples following “including” or “e.g.” is illustrative and not exhaustive, unless qualified by terms like “only” or “solely.” Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular. All references to Sections, provisions and Schedules are to the Sections, provisions and Schedules of this Agreement unless expressly indicated otherwise. All headings are intended solely for the Parties’ convenience, and none will affect the meaning of any provision.
Third Party Beneficiaries. Except for indemnification, there are no third-party beneficiaries of this Agreement, and no third party may enforce any of the provisions of this Agreement.
Publicity. Marine Digital Retailing™ may use Client’s name and logo on Marine Digital Retailing and/or BoatValue website or in Marine Digital Retailing’s marketing materials, provided that Client may revoke this right with reasonable, advance written notice to Marine Digital Retailing™.
Assignment. Neither Party may assign or transfer this Agreement, nor any rights or obligations hereunder, by contract, operation of law, or otherwise without the other Party’s express prior written consent; provided however, that Marine Digital Retailing™ may assign or transfer this Agreement to an Affiliate, successor in interest, or in connection with a merger or sale of substantially all of its assets, without first obtaining Client’s consent. Subject to the foregoing, this Agreement will bind and benefit the Parties, their successors and permitted assigns. Any attempted assignment or transfer in violation of this section is null and void in each instance. Marine Digital Retailing™ may subcontract or delegate its obligations under this Agreement, provided that Marine Digital Retailing™will be responsible for its subcontractors’ compliance with the applicable terms of this Agreement.
Governing Law; Arbitration. This Agreement will be governed by and construed in accordance with the U.S. Federal Arbitration Act, applicable U.S. federal law, and the laws of the state of California, without reference to any applicable conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All disputes arising out of this Agreement will be resolved through binding arbitration. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Commercial Arbitration Rules. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. Arbitration conducted in person will be held in Orange County, California or at another mutually agreed location. Each Party agrees that all dispute resolution proceedings will be conducted solely on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, each Party waives their respective rights to a trial by jury of any claim or cause of action based upon or arising out of or related to this Agreement and agree such action must be brought in the state or federal courts in Orange County, California. This waiver applies to any subsequent amendments, renewals, supplements, or modifications to this Agreement.
Entire Agreement. This Agreement, together with all Order Forms and Schedules, constitutes the entire agreement between the Parties with respect to the Services and merges all prior and contemporaneous communications and proposals, whether electronic oral or written, between Parties with respect to the Services. Each Party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any representation or warranty (whether made negligently or innocently) that is not set out in this Agreement. Nothing in this Agreement is intended to limit or exclude any liability for fraud, gross negligence, or willful misconduct. This Agreement will prevail over any additional, conflicting, or inconsistent terms or conditions that may appear on any purchase order or other document furnished by Client to Marine Digital Retailing™. In the event of conflict or inconsistency between provisions of this Agreement and (i) any Order Form, the terms of this Agreement will prevail to the extent of the conflict, unless the Order Form expressly references the provision of this Agreement to be superseded; or (ii) any Schedule, the terms of the Schedule will prevail to the extent of the conflict. Signatures sent by electronic means will be deemed original signatures. No waiver of any provision of this Agreement will be effective against Marine Digital Retailing™ unless it is in writing and signed by Marine Digital Retailing™, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.

SCHEDULE FOR:

WEBSITE PLUG-INS

Last Updated: October 15, 2024

This Schedule (“Schedule”) supplements the Subscriber Agreement (the “Agreement”) between the client named in the Agreement (“Client”) and Marine Digital Retailing™, Inc. (“Marine Digital Retailing™”) to incorporate the Service Terms described below.

DEFINITIONS. In addition to the capitalized terms defined throughout the Agreement, the following defined terms will have the meanings provided in this Section. Any capitalized terms used but not defined in this Schedule have the meanings provided for them in the Agreement or the Order Form, as applicable.

“Website Plug-Ins” means the credit discovery (e.g., prequalification, credit application) and check-out plug-ins that are privately labeled for Client and configured and hosted by Marine Digital Retailing™. The Website Plug-Ins are Services (as defined under the Agreement).
“Website Plug-Ins Content” means all Content provided by or on behalf of Client and its Authorized Users or end users to be included on, or delivered by or through, the Website Plug-ins Service, including all information contained in any Client Resource integrated with the Website Plug-ins Service. Except for any Licensed Content provided as part of the Website Plug-ins Service or any Analytics Data, all Website Plug-ins Content constitutes Client Content.

SET-UP; TESTING. Promptly following the Activation Date, Marine Digital Retailing™will configure the Website Plug-Ins Service to (i) meet any specifications set forth in the applicable Order Form or as otherwise mutually agreed by the Parties in writing, and (ii) be available for Client to perform reasonable acceptance testing of the Website Plug-Ins Service.
TRADEMARKS; BRANDING. Client hereby grants to Marine Digital Retailing™, its Affiliates, and their service providers a non-exclusive, fully paid-up, royalty free right, during the Term, to use Client’s trademarks, service marks, trade names, logos, and other indicia of origin (the “Client Marks”), whether registered or unregistered, to provide the Services. Marine Digital Retailing™will only use Client Marks in accordance with reasonable branding guidelines made available to Marine Digital Retailing™ in advance.
SUPPORT; MODIFICATIONS. Marine Digital Retailing™ will use reasonable efforts to ensure the availability of the Website Plug-ins Service. However, except as otherwise expressly set forth in an Order Form, Client is not entitled to any additional support for the Website Plug-ins Service. Client acknowledges that Marine Digital Retailing™ may release Modifications to the Website Plug-Ins Service from time to time and may require Client to obtain and use the most recent version.

SCHEDULE FOR:

SUPPORT AND MAINTENANCE

Last Updated: December, 2024

DEFINITIONS. In addition to the capitalized terms defined throughout the Agreement, the following defined terms will have the meanings provided in this Section. Any capitalized terms used but not defined in this Schedule have the meanings provided for them in the Agreement or the Order Form, as applicable.

“Qualified Services” means the Services identified on an Order Form that qualify for support and maintenance described in this Schedule.
“Support Hours” means the hours between 8 a.m. – 6 p.m. PST on Monday through Friday, excluding United States national holidays

SERVICE AVAILABILITY. The Qualified Services will be available at least 99.9% of the time in any calendar month (the “Qualified Services SLA”). The following will not be counted in the calculation of the Qualified Services SLA: (a) scheduled network, hardware, or service maintenance; (b) downtime caused by the acts or omissions of Client, Client’s Representatives or Authorized Users, or anyone gaining access to the Services by means of Client’s login credentials or equipment; (c) failures or malfunctions of any equipment or services provided directly or indirectly by Client, including Client Resources; or (d) a Force Majeure Event. Subject to Client’s compliance with its obligations under the Agreement, if Marine Digital Retailing™ does not meet the Qualifying Service SLA for any Qualifying Service during any calendar month, and Client notifies Marine Digital Retailing™ of the failure within 15 days after the end of the calendar month, Client will receive a credit equal to the amount of the Fees paid by Client for that Qualifying Service for that month. For the avoidance of doubt, if Client paid an annual Fee, the credit amount for a month will be 1/12 of the annual Fee. The credit described in this Schedule is Client’s exclusive remedy and Marine Digital Retailing’s sole liability arising out of or relating to Marine Digital Retailing’s breach of the Qualified Services SLA.
SUPPORT AND MAINTENANCE. Provided that Client is in not in material breach of the Agreement, including paying the applicable Fees as set forth in the applicable Order Form, Marine Digital Retailing™ will provide the following technical assistance during the Subscription Term with respect to the Qualified Services specified on the Order Form: (a) answer technical questions concerning functions and features of the Qualified Services; (b) provide error verification, analysis, and corrective efforts; and (c) make Modifications available (without charge) to Client that Marine Digital Retailing™ makes generally available to other customers (collectively, the “Support”). Any Modification of the Qualified Services provided in connection with Support will be deemed part of the Qualified Services and will be used in accordance with the requirements and obligations in the Agreement. Marine Digital Retailing™ will not be obligated to provide any of the following as part of the Support: (i) support for software or hardware other than the Qualified Services as set forth in the applicable Order Form; (ii) onsite support or maintenance; or (iii) support for Qualified Services: (1) that have been repaired, tampered with, altered, or modified; (2) in which problems result from use with any hardware or software not provided by Marine Digital Retailing™; or (3) used in any manner not expressly authorized by the Agreement. Marine Digital Retailing™ may refuse to provide support or maintenance where, in Marine Digital Retailing’s reasonable opinion, a condition exists that represents a hazard to the safety of Marine Digital Retailing™, its equipment or its customers.
SUPPORT CONTACTS. Client will designate one or more individuals who have been trained by Marine Digital Retailing™ within its organization as Client’s primary contacts for receiving Support (the “Support Contacts”). The Support Contacts will be responsible for contacting Marine Digital Retailing™with requests for Support (“Support Requests”) and for working with Marine Digital Retailing™ to respond to and resolve the Support Requests. Marine Digital Retailing™will not be responsible for any Support Requests not initiated through the Support Contacts.
SUPPORT AVAILABILITY. Support for all Support Requests will be available by email at contact@MarineDR.io during the Support Hours.
SUPPORT CLASSIFICATION. To ensure that all Support Requests are addressed based on urgency, Marine Digital Retailing™ will assign priority levels to each Support Request as follows:

Priority Level	Definition
Priority 1	Production environment hangs or crashes, or continued use of the Service is rendered unmanageable.
Priority 2	The Service is useable with major restrictions on functionality.
Priority 3	The Service is useable with minor restrictions on functionality.
Priority 4	A Service improvement request or Documentation clarification request.

RESPONSE TIME. Marine Digital Retailing™ will acknowledge receipt of a Support Request according to the following table. For Support Requests received outside of Support Hours, the Support Request(s) will be acknowledged within the specified timeframe during the next Support Hours period.

Priority Level	Response Time: Email
Priority 1	2 hours during Support Hours
Priority 2	1 day during Support Hours
Priority 3	2 days during Support Hours
Priority 4	3 days during Support Hours

SUPPORT CONDITIONS. Marine Digital Retailing’s obligation to provide Support is conditioned on Client performing the following obligations: (a) provide to Marine Digital Retailing™ all reasonable and available information relating to the error identified in the Support Request (the “Error”), including all test data associated with the Error, a detailed description of the Error, and login credentials (if requested); (b) support Marine Digital Retailing’s technical support personnel in their efforts to diagnose, reproduce and resolve all Errors and any suspected system anomalies; and (c) allow Marine Digital Retailing™ appropriate access to Client Resources used to access and use the Services, as may be reasonably requested.