Master Services Agreement

1. DEFINITIONS.

1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2 “Content” means content, data, and information owned by Ascend or any of its licensors that is provided or made available by Ascend through use of the Platform or as part of or in connection with Ascend’s provision of Services. Content does not include Customer Data.
1.3 “Customer Data” means the electronic data and information input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data.
1.4 “Documentation” means any user materials, instructions, and specifications set forth in the proposal agreed to by the parties and made available by Ascend to Customer for the Services.
1.5 “Implementation Services” means Ascend’s standard implementation and set-up services for the Platform.
1.6 “Work Order” means any written order document executed by Ascend and Customer setting forth the terms and conditions relating to the Services. The initial Work Order is attached as Exhibit A. Each Work Order is incorporated by reference into this Agreement.
1.7 “Platform” means Ascend’s proprietary software-as-a-service platform utilized by Ascend to provide the Software to Customer. The Platform does not include Customer’s connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Services.
1.8 “Professional Services” means the professional services provided by Ascend as set forth and identified as “professional services” in the applicable Work Order and provided in accordance with Exhibit B. Professional Services do not include Implementation Services and Support Services.
1.9 “Services” means, collectively, Implementation Services, Professional Services (if any), access to the Platform, Support Services, and the other services made available on, by, or through the Platform by Ascend under this Agreement.
1.10 “Software” means Ascend’s proprietary software as a service offering as set forth in the applicable Work Order and made available through remote access by Ascend to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.
1.11 “Support Services” means the technical support and Software maintenance services set forth in the applicable Work Order.
1.12 “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform. Usage Data does not include Customer Confidential Information.
1.13 “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Services on behalf of Customer.

2. SERVICES.

2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Ascend shall provide the Services to Customer and its Users.
2.2 Cooperation. Customer shall provide Ascend with the Customer Data along with access and personnel resources that Ascend reasonably requests for Ascend to provide the Services.
2.3 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.
2.4 Third Party Offerings. The Platform may link to, incorporate, or interoperate with third-party software services, applications, or functionality (collectively, “Third-Party Offerings”). Customer acknowledges that Ascend does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Platform. Customer’s access to or use of Third-Party Offerings is in Customer’s sole discretion. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and its Users and any Third Party Offering is solely between Customer and its Users and the applicable Third-Party Offering provider. Ascend may disable or restrict access to any Third-Party Offerings on the Platform at any time without notice. Ascend is not liable for Third-Party Offerings or any Customer Data provided to a third party via a Third-Party Offering.

3. GRANT OF RIGHTS.

3.1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, Ascend hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 12.3), non-sublicensable right to access and use the Platform for Customer’s internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement and the Usage Limitations (as defined below). Ascend and its licensors reserve all rights in and to the Platform and the Services not expressly granted to Customer under this Agreement.
3.2 Restrictions on Use. Customer shall not (a) reproduce, display, download, modify, create derivative works of, or distribute the Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer; (c) permit any party, other than the then-currently authorized Users to independently access the Platform; (d) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) exceed the Usage Limitations; or (f) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. Ascend may, in its sole discretion and upon notice to Customer, impose reasonable limits on the Services, including, but not limited to limiting the number of concurrent live unique strategies enabled within the Customer’s node and on API usage to reduce technical risk and ensure platform performance for all users (the “Usage Limitations”).
3.3 Attribution and Limited Use. Users may reproduce, reference, or display insubstantial portions of the Service or its outputs in other works, presentations, or analyses, provided that such use does not constitute redistribution or competitive use of the Service as a whole. Any such use must include clear attribution in the following form: “Source: Ascend Analytics, LLC.” All other rights are reserved, and no license or permission is granted beyond this limited use.
3.4 Users. Under the rights granted to Customer under this Agreement, Customer may permit its independent contractors and employees to become Users in order to access and use the Platform in accordance with this Agreement; provided that Customer will be liable for the acts and omissions of all Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.
3.5 Trial Services. Ascend may make certain Services available to Customer and its Users on a trial basis (the “Trial Services”). Trial Services will be identified as such on the applicable Work Order. If Customer is accessing and using the Trial Services, this Section 3.4 applies with respect to the Trial Services and takes precedence over any inconsistent or conflicting terms. Subject to the terms and conditions of this Agreement, Ascend grants to Customer, during the Trial Services Period (as defined below), non-exclusive, non-transferable (except as otherwise provided in Section 12.4), non-sublicensable right to access and use the Trial Services solely for Customer’s internal business purpose of evaluating the Trial Services to determine whether to purchase a full right to access and use the Trial Services and subject to any limitations specified in the applicable Work Order. Customer may elect to purchase a full right to access and use the Trial Services by notifying Ascend prior to the expiration of the Trial Services Period and paying the applicable Fees (as defined below) for full access to and use of the Platform in accordance with this Agreement. “Trial Services Period” means the period beginning when Customer first orders the Trial Services until the earlier of: (a) the date specified in the applicable Work Order for the end of the Trial Services period; (b) the start date for any purchased Services order by Customer; and (c) either party provides the other with written notice of termination of the Trial Services, which either party may provide at any time in its sole discretion. During the Trial Services Period, Ascend may discontinue, suspend, or remove access to the Trial Services at any time in Ascend’s sole discretion. Fees for any Trial Services will be set forth on the applicable Work Order. CUSTOMER ACKNOWLEDGES THAT THE TRIAL SERVICES MAY NOT INCLUDE OR ALLOW ACCESS TO ALL FEATURES AND FUNCTIONALITY AVAILABLE TO PAYING CUSTOMERS.4. FEES AND PAYMENT TERMS.

4. FEES AND PAYMENT TERMS.
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4.1 Price. Customer shall pay Ascend the fees set forth in the applicable Work Order (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to Ascend under this Agreement (excluding any taxes arising from Ascend’s income or any employment taxes). Fees for any Services requested by Customer that are not set forth in Exhibit A or a Work Order will be charged as mutually agreed to by the parties in writing.
4.2 Payment. Customer shall pay to Ascend all undisputed Fees. All payments received by Ascend are nonrefundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars. Upon any renewal of any Work Order, Ascend may increase the Fees for Services as defined in the Work Order up to 7%. If Ascend exercises its right to increase Fees in accordance with the foregoing sentence, such increase will become effective upon the Renewal Term (as defined below) for that Work Order, and that Work Order will be deemed amended to reflect such Fee increase. Such fee increase will be applied to the fees under that work order in the subsequent term.

5. TERM AND TERMINATION.

5.1 Term. This Agreement commences on the Effective Date and, in accordance with this Agreement, continues until all Work Orders have terminated (“Term”).
5.2 Work Order Term. The initial term will be defined in the Work Order and may begin either on the Work Order Effective Date or the date Ascend receives a Notice to Proceed (if applicable, and as defined below) for such Work Order and continues for the period set forth in the Work Order (“Initial Term”). Each Work Order will automatically renew for additional one year periods (each, a “Renewal Term”) unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the Initial Term or the then-current Renewal Term.
5.3 Termination for Cause. A party may terminate this Agreement or Work Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.
5.4 Effects of Termination. Upon termination of this Agreement and all Work Orders: (a) all amounts owed to Ascend under this Agreement will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) Ascend shall promptly return or erase all Customer Data, except that Ascend may retain Customer Data in Ascend’s archived backup files. Sections 3.4, 4, 5.4, 6, survive expiration or termination of this Agreement.
5.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Ascend may suspend Customer’s access to the Platform if Ascend determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to Ascend and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.2 or 11; (d) Customer’s or its Users’ use of the Platform violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after Ascend has provided Customer with written notice of such late payment. Ascend shall use commercially reasonable efforts to provide Customer with notice of such suspension. Ascend may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to Ascend’s reasonable satisfaction. Ascend’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement.

6. PROPRIETARY RIGHTS.

6.1 Customer Data. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein.
6.2 Customer Data License Grant. Customer hereby grants to Ascend and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 12.3) license to use the Customer Data solely for the limited purpose of performing the Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.
6.3 The Services. All proprietary technology utilized by Ascend to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of Ascend. Ascend or its third-party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including without limitation the Software, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by Ascend in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Ascend.
6.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Ascend may analyze Customer Data to create a de-identified or aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). Ascend retains ownership of all right, title, and interest in and to Aggregated Data. Ascend may use Aggregated Data for internal business purposes, including, but not limited to, improving and providing the Services and for marketing purposes.
6.5 Usage Data. Ascend retains ownership of all right, title, and interest in and to the Usage Data. Ascend may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Ascend’s services, systems, and algorithms.

7. WARRANTY; DISCLAIMERS.

7.1 Access to the Platform. Ascend warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. Ascend does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies Ascend of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Ascend shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if Ascend is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to Ascend and, Ascend shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform; or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.
7.2 No Conflict of Interest Ascend represents and warrants that it will not provide the same Services provided under this Agreement to any other battery storage market participants at the same node as Customer (each, a “Conflict of Interest”). Ascend shall promptly notify Customer if a Conflict of Interest arises. If Customer objects to the conflict of interest, but Ascend elects to proceed with such new customer, then Customer shall be entitled to terminate this Agreement immediately without liability except for obligations that accrued prior to such termination.
7.3 Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant Ascend the license in Section 6.2.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT, ASCEND, IN CONNECTION WITH THE SERVICES, WILL BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE BUT IS NOT RESPONSIBLE FOR MANAGING CUSTOMER’S ASSETS AND ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS AND MANAGING SUCH ASSETS WILL BE MADE BY CUSTOMER AND WILL BE CUSTOMER’S SOLE RESPONSIBILITY. CUSTOMER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR REVIEWING ANY RECOMMENDATIONS AND ADVICE PRODUCED IN CONNECTION WITH THE SERVICES TO CONFIRM THAT IT IS APPROPRIATE FOR CUSTOMER’S BUSINESS. ASCEND MAKES NO WARRANTY REGARDING THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SERVICE OR ANY ADVICE OR RECOMMENDATIONS PRODUCED IN CONNECTION THEREWITH, ANY RESULTS CUSTOMER MAY OBTAIN BY IN CONNECTION WITH THE SERVICES OR IMPLEMENTING ANY ADVICE OR RECOMMENDATIONS OR THAT THE SERVICES OR ANY ADVICE OR RECOMMENDATIONS WILL ACHIEVE CUSTOMER’S INTENDED RESULTS. ASCEND MAKES NO WARRANTY REGARDING THE RESULTS OR SPECIFIC OUTCOMES THAT CUSTOMER MAY OBTAIN IN CONNECTION WITH THE SERVICES OR THAT SUCH RESULTS WILL MEET CUSTOMER’S EXPECTATIONS.

8. INSURANCE

8.1 Insurance. Ascend shall maintain insurance coverage consistent with the following:
(a) Terms and Provisions of Policies. All policies of insurance will:
(i) provide that, without 30 days prior written notice sent to Customer, they may not be canceled;
(ii) if Customer requests in writing, with the exception of worker’s compensation/employer liability insurance and any professional liability insurance/errors and omissions insurance that may be required, be endorsed to name the following as additional insureds: Customer; the directors, officers, employees, and agents of Customer; and the successors and assigns of all of the foregoing (the “Additional Insureds”);
(iii) with the exception of worker’s compensation/employer liability insurance and any professional liability insurance/errors and omissions insurance that may be required, be primary to and not excess to or on a contributing basis with any insurance or self-insurance maintained by any Additional Insured(s);
(iv) as to policies required by this Agreement to name Additional Insureds, provide for severability of interests or cross liability as to all insureds (whether named or otherwise); and
(v) be written on an occurrence basis (except that any professional liability insurance may be required may be written on a claims-made basis) and issued by insurance carriers reasonably acceptable to Customer.
(b) Specific Coverages. Ascend shall maintain the following insurance policies:
(i) Commercial General Liability, on an occurrence basis, with a combined single limit of $1,000,000 per occurrence and an annual aggregate limit of $2,000,000. Such policy shall contain a waiver of subrogation endorsement in favor of the Additional Insureds;
(ii) Comprehensive Automobile Liability, with a combined single limit of $1,000,000. Such policy shall contain a waiver of subrogation endorsement in favor of the Additional Insureds;
(iii) Workers’ Compensation, in statutorily required amount(s), and employer’s liability insurance of not less than $1,000,000 for each instance, provided that if Ascend is not required by law to, and does not, carry Workers’ Compensation Insurance, Ascend shall execute and deliver to Customer a Worker’s Compensation Insurance waiver provided by Customer. Such policies shall contain a waiver of subrogation; (iv) Professional Liability/Errors and Omissions insurance covering liability for financial loss due to errors, omissions, wrongful acts, negligent acts, design and software defects, copyright and trademark infringement, including coverage for cyber liability and privacy liability in an amount not less than $3,000,000 in the aggregate; and
(v) Umbrella Excess Liability of not less than $2,000,000. Such coverage shall be on a per “occurrence” basis and over and above and shall not contain endorsements that restrict coverages described in this Section 8. Such policy shall include a waiver of subrogation endorsement in favor of the Additional Insureds.
(c) Insurance Coverage; Miscellaneous. Notwithstanding anything to the contrary in this Agreement, the liabilities of Ascend under this Agreement shall not be terminated, reduced, or otherwise limited by any expiration or termination of insurance coverages.

9. INDEMNIFICATION.
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9.1 Claims Against Customer. Ascend shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (a “Customer Claim”), and Ascend shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Ascend in writing of such Customer Claim; (b) giving Ascend sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Ascend’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, Ascend shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, Ascend will have no obligation under this Section 9.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of thePlatform in combination with products, equipment, software, or data that Ascend did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (3) any modification of the Platform by any person other than Ascend or its authorized agents or subcontractors; or (4) any Third-Party Offering. This Section 9.1 states Ascend’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
9.2 Claims Against Ascend. Customer shall defend, any claim, suit, or action against Ascend brought by a third party to the extent that such claim, suit, or action is based upon Ascend’s use of any Customer Data in accordance with this Agreement or Customer’s use of any Customer Data (a “Ascend Claim”) and Customer shall indemnify and hold Ascend harmless, from and against Losses that are specifically attributable to such Ascend Claim or those costs and damages agreed to in a settlement of such Ascend Claim. The foregoing obligations are conditioned on Ascend: (a) promptly notifying Customer in writing of such Ascend Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 9.2 or otherwise with respect to any Ascend Claim to the extent based upon Ascend’s use of the Customer Data in violation of thisAgreement.1

10. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO ASCEND UNDER THIS AGREEMENT DURING THE INITIAL TERM OR RENEWAL TERM, AS THE CASE MAY BE, DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 10 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 9, TO LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION.

11. CONFIDENTIALITY.

11.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. Ascend’s Confidential Information includes Software and Documentation. Customer’s Confidential Information includes Customer Data.
11.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 11. Recipient will be liable to the Discloser for any of its employees’ and independent contractors’ acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 11. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
11.3 Exceptions. Recipient will have no confidentiality obligations under Section 11.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

12. GENERAL.
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12.1 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
12.2 Subcontractors. Ascend may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Ascend will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Ascend, would constitute a breach of, or otherwise give rise to liability to Ascend under, this Agreement when they are performing for or on behalf of Ascend.
12.3 Publicity. Ascend may, during the Term of this Agreement: (a) create a general contract announcement press release indicating that the parties have entered into this Agreement, and (b) use Customer’s business name and trademark in written materials identifying Ascend’s customers, on Ascend’s websites, and in other promotional materials subject to Customer’s brand guidelines and Ascend’s obligations under Section 11.
12.4 Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, except that a party may assign this Agreement without consent from the other party to any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.
12.5 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.
12.6 Notices. To be effective, notices under this Agreement must be delivered in writing to the other party at the physical or email address for each party set forth below and will be effective upon receipt. Each party may update its notice address in accordance with this provision.

For Ascend:
Ascend Analytics LLC
1877 Broadway, Suite 706
Boulder, CO 80302

For Customer: See Work Order

12.7 Governing Law; Venue. The laws of the State of Colorado govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Services.
12.8 Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 11 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
12.9 Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.
12.10 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.11 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
12.12 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
12.13 Entire Agreement. This Agreement, including any Work Order and any exhibits or attachments thereto, constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Work Order, the provisions of the Agreement will govern unless the Work Order specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.

The parties, by their authorized representatives, have entered into this Master Services Agreement as of the Effective Date.