SUBSCRIPTION SERVICES AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE, CLICKING AGREE, AGREEING TO AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.

This subscription services agreement (“Agreement”) is between Fencer, Inc., a Delaware Corporation (“Fencer”), and the Customer agreeing to these terms (“Customer”).

1. SCOPE.

This Agreement and the applicable Order provide Customer with: (i) access to and usage of an Internet-based software service, including, without limitation, its features, functions, user interface, templates, reports and underlying software (“Service”); and (ii) support for the Service (“Support”). This Agreement contemplates one or more orders for the Service (“Order”), which Orders are governed by the terms of this Agreement.

2. USE OF SERVICE.

  1. Authorized Users. Customer may allow its employees and contractors (“Authorized Users”) use the Service, solely on Customer’s behalf, provided that Customer is responsible for such Authorized Users’ compliance with the terms of this Agreement.
  2. Customer Responsibilities. Customer: (i) must use industry standard password management practices to keep its passwords for its account in the Service secure and confidential, and promptly notify Fencer of any unauthorized access to its account in the Service; (ii) is responsible for its access control policies and administration of access rights to its account within the Service, the acts and omissions of its Authorized Users, and the legality and accuracy of Customer Data; and (iii) may use the Service only in accordance with the Service's user guide and applicable law.
  3. Fencer Support. Fencer provides support for the Service under the terms of Fencer's then current Customer Support Policy (“Support”).
  4. Third Party Service. The Service interoperates with third party services and databases, including application programming interfaces (“Third Party Service”), and it depends on continuing availability of and access to the Third Party Service for full functionality of the Service. Additionally, Fencer may provide tools through the Service that enable Customer to export information, including Customer Data, to the Third Party Service. By using these tools, Customer agrees that Fencer may transfer all such information to the applicable Third Party Service, and that Fencer is not responsible for any Third Party’s Service’s use of any such information.

3. PAYMENT.

  1. Fees and Payment. Customer must pay all fees by credit card or ACH, monthly or annually in advance, unless otherwise specified on an order. In addition to the minimum subscription fee, Customer will also be charged the prior month’s overage fees, if any, at the beginning of each month. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner prescribed by applicable law. If Fencer has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Fencer will invoice Customer and Customer will pay that amount, unless Customer provides Fencer with a valid tax exemption certificate authorized by the appropriate taxing authority.
  2. Nonpayment. Any invoiced amount not received by Fencer by the due date may accrue interest at the lower rate of 1.5% per month or the maximum rate permitted by law. In addition, if an invoiced amount is 30 days or more past due, Fencer may suspend Service and Support until the amount is paid in full, provided Fencer has given Customer at least 30 days’ prior written notice that its payment is past due.

4. TERM AND TERMINATION.

  1. Term of Agreement. This Agreement continues until all Orders have expired, unless earlier terminated as provided below.
  2. Term of Orders.  The term of each Order is specified in the Order. Unless otherwise stated in an Order, (i) Orders and all subscriptions under them will automatically renew for additional subscription terms of the same length as the prior subscription, unless a party notifies the other of non-renewal 30 or more days before the Order renewal date, and (ii) an automatically renewing Order will remain unchanged from the prior subscription term, except for any price increase of which Fencer has notified Customer 60 or more days before the Order renewal date.
  3. Mutual Termination for Material Breach. If either party is in material breach of this Agreement, the non-breaching party may terminate this Agreement at the end of a written 30-day notice/cure period if the breach has not been cured during such notice/cure period.
  4. Return of Customer Data.
    1. Within 60 days after termination, upon request, Fencer will make the Service available for Customer to export Customer Data as allowed by the functionality of the Service.
    2. After such 60-day period, Fencer has no obligation to maintain the Customer Data and may destroy it.
  1. Effect of Termination. If this Agreement is terminated for Customer’s material breach, Customer will pay all unpaid fees for all Orders. Upon request, following any termination of this Agreement, each party will destroy or return all of the other party’s property in its possession.

5. MUTUAL CONFIDENTIALITY AND DATA SECURITY.

  1. Confidential Information Definition and Exclusions. Confidential Information is defined as all non-public information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement, which information is either designated as confidential in writing, or is information that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Fencer's Confidential Information includes, without limitation, the Service and pricing information. Customer's Confidential Information includes, without limitation, the Customer Data. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser or is received by Recipient from a third party, either of these without breach of any obligation owed to the Discloser; or (iii) is independently developed by the Recipient without use of or access to the Discloser’s Confidential Information.
  2. Protection of Confidential Information. Recipient agrees that it will use the Confidential Information solely for the purposes of performing under this Agreement, and that it will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to limit access to Confidential Information of Discloser to those of its employees and contractors who: (i) have a need to know the Confidential Information in order to perform under this Agreement, and (ii) have written obligations of confidentiality in place with Recipient at least as stringent as those in this Agreement. Recipient is responsible for its employees’ and contractors’ compliance with this Section 5. Any breach by a party of this Section 5, or any violation by a party of the other party’s intellectual property rights, could cause irreparable injury or harm to the other party, and the other party may seek a court order to stop any such existing or potential future breach or violation.
  3. Requests for Confidential Information. Recipient may disclose Discloser’s Confidential Information in the event of a government or other third party’s lawful request; provided that Recipient will notify Discloser of such request prior to such disclosure if Recipient is legally permitted to do so.
  4. Security Measures. For the protection of Customer Data, Fencer: (i) implements and maintains reasonable security measures appropriate to the nature of the Customer Data including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of the Customer Data (“Security Measures”); (ii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures; (iii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures (“Safeguards”); (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of the Customer Data that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of the Customer Data; and (v) regularly tests the effectiveness and assesses the sufficiency of the Security Measures and Safeguards.

6. PROPERTY.

  1. Reservation of Fencer Rights. Fencer and its licensors are the sole owners of the Service, including all associated intellectual property rights. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Fencer reserves all rights in the Service that are not expressly granted in this Agreement. Any violation or misappropriation of Fencer’s intellectual property rights could cause irreparable injury or harm, and Fencer may seek a court order to stop any such existing or potential future violation or misappropriation.
  2. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit material in violation of privacy or intellectual property rights or applicable law, or to store or transmit malware; (iii) attempt to gain unauthorized access to the Service, or interfere with or disrupt the performance of the Service; (iv) reverse engineer the Service (to the extent such restriction is permitted by law); or (v) access the Service to build a competitive service or product, or copy any feature, function, or graphic or the Service for competitive purposes. Fencer may suspend Customer’s access to the Service if Fencer believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, Fencer will work with Customer to address the issue and restore Service as quickly as possible.
  3. Feedback. If Customer provides feedback or suggestions about the Service, then Fencer may use such feedback or suggestions without obligation to Customer.
  4. Statistical Information. Fencer may track and compile statistical information related to Customer’s use of the Service (“Statistical Information”) and may, both during and after the term of this Agreement, use such Statistical Information for any legitimate business purpose, including but not limited to enhancing the Service, providing and improving Support, and for marketing purposes. Statistical Information may not contain or identify Customer Data.
  5. Customer Data. All data uploaded by or on behalf of Customer to the Service remains the property of Customer, as between Fencer and Customer (“Customer Data”). Customer represents and warrants to Fencer that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use within the Service under this Agreement. During the term of this Agreement, Customer grants Fencer the right to use the Customer Data solely for purposes of performing under this Agreement (which includes, without limitation, the right for Fencer to enhance its technology and offerings). During the terms of this Agreement, Customer may export its Customer Data as allowed by the functionality of the Service.

7. WARRANTY DISCLAIMER.

FENCER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS AND AGREES THAT: (I) THE SERVICE MAY NOT BE ERROR-FREE AND ITS USE MAY BE INTERRUPTED; (II) WHILE FENCER TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, FENCER DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED; AND (III) FENCER IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY SERVICE ISSUES.

8. LIABILITY LIMIT.

  1. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, FENCER DISCLAIMS ALL LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
  2. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR FENCER'S INDEMNITY OBLIGATIONS, FENCER'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.

9. INDEMNITIES.

  1. Fencer Indemnity. Fencer will, at its expense, (i) defend or settle, and (ii) indemnify and hold Customer harmless, as further set forth in “Costs” below, from and against any third-party claim against Customer, to the extent that such claim alleges that the Service infringes a copyright, patent, trademark, or other intellectual property right (“Claim”); provided that, Customer promptly notifies Fencer of the Claim in writing, reasonably cooperates with Fencer in the defense of the Claim, and allows Fencer to solely control the defense or settlement of the Claim. Costs. Fencer will pay all defense costs it incurs in defending Customer against the Claim, Fencer-negotiated settlement amounts, court-awarded damages, and regulatory fines. Process. If a Claim appears likely, then Fencer may modify the Service, procure the necessary rights for Customer to continue using the Service, or replace the Service with the functional equivalent. If Fencer determines that none of these are reasonably available, then Fencer may terminate the Service and provide Customer with a prorated refund any prepaid, unused fees beginning on the date of termination through the end of the subscription term. Exclusions. Fencer has no obligation for any Claim arising from a combination of the Service with other technology where the infringement would not occur but for the combination. THIS SECTION CONTAINS CUSTOMER'S EXCLUSIVE REMEDIES AND FENCER'S SOLE LIABILITY FOR CLAIMS.
  2. Customer Indemnity. Customer will, at its expense, (i) defend or settle, and (ii) indemnify and hold Fencer harmless, as further set forth in “Costs” below, from and against any third-party claim against Fencer to the extent that such claim alleges that (i) Customer illegally provided, or did not have proper permission, authority, or consent to provide Fencer with Customer Data, or (ii) Customer Data is infringing of a third party’s copyright, patent, trademark, or other intellectual property right (“Customer Data Claim”); provided that, Fencer promptly notifies Customer of the Customer Data Claim in writing, reasonably cooperates with Customer in the defense of the Customer Data Claim, and allows Customer to solely control the defense or settlement of the Customer Data Claim. Costs. Customer will pay all defense costs it incurs in defending Fencer against the Customer Data Claim, Customer-negotiated settlement amounts, court-awarded damages, and regulatory fines.

10. GOVERNING LAW AND FORUM.

This Agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts of Delaware, and Customer submits to this personal jurisdiction and venue. Notwithstanding the foregoing, nothing in this Agreement prevents either party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party.

11. ENTIRE AGREEMENT AND CHANGES.

This Agreement and the Order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. If there is an inconsistency between this Agreement and an Order, this Agreement prevails. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding. No waiver of any term of this Agreement is effective unless both parties sign it. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. The UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement may only be modified through an online process provided by Fencer. Fencer rejects any additional or conflicting terms of a Customer form-purchasing document.

12. MISCELLANEOUS.

  1. Survival. All provisions of this Agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this Agreement must survive expiration or termination of this Agreement until fully performed or otherwise are inapplicable.
  2. Assignment. Neither party may assign or transfer this Agreement or an Order to any third party without the consent of the other party; except that this Agreement and the Order(s) may be assigned without the consent of the other party, solely in the event of a merger or an acquisition of substantially all of a party’s stock or assets.
  3. Compliance. The Service, and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions, and each party agrees to comply with these laws. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access the Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
  4. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party.
  5. Force Majeure. Neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to natural weather events and disasters, labor disruptions, and disruptions in the supply of utilities.

Last Revised 01.15.2026