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SignUp Software

GENERAL TERMS AND CONDITIONS

1
GENERAL
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1.1
These General Terms and Conditions apply to any SignUp Services ordered by the Customer, as set out in the applicable Order Agreement.
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1.2
By executing an Order Agreement that references these General Terms and Conditions, the Customer agrees to be bound by the terms and conditions set out herein and that these General Terms and Conditions shall form an integral part of the Agreement. In the event of a conflict or inconsistency between any of the Agreement documents, the order of precedence set out in the Order Agreement shall apply.
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1.3
Any capitalized terms and expressions used in these General Terms and Conditions shall have the meaning given to them in the Definitions schedule.
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2
CUSTOMER AFFILIATES
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2.1
The rights granted to the Customer to use the SignUp Services subject to an applicable Order Agreement shall include a right for the Customer's Affiliates to use such SignUp Services within the scope of the use restrictions and other obligations related to the use of SignUp Services under the Agreement.
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2.2
Any rights extended to the Customer's Affiliates are only available through the Customer (unless, as set out in Section 2.4, a Customer Affiliate has executed its own Order Agreement). No right (or any related remedy) shall be separately exercised by a Customer Affiliate and all limitations, exclusions and disclaimers applicable to the Customer shall include the Customer and its Affiliates in the aggregate and the Customer shall be liable for all acts and omissions of its Affiliates. The Customer shall at all times remain as the Supplier's sole counterparty with respect to the Agreement.
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2.3
If any Customer Affiliate would cease to be an Affiliate, the right to use the SignUp Services subject to this Section 2 shall immediately cease.
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2.4
Notwithstanding what is set out in this Section 2, nothing shall prevent Customer Affiliate(s) to in their own names conclude Order Agreement(s) for the purchase and use of SignUp Services. In such case, the Customer Affiliate shall be deemed a "Customer" and have a direct contractual relationship with SignUp.
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3
FEES, PAYMENTS AND PRICE ADJUSTMENTS
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3.1
The Customer shall pay the fees set out in the Order Agreement and in accordance with the terms and conditions set out in the Agreement.
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3.3
The Customer shall not be entitled to withhold, reduce, set-off or make deductions from any amounts due under this Agreement. In the event of late payment, SignUp shall be entitled to charge interest corresponding to the higher of (i) one (1) percent of the due amount per calendar month, or (ii) the maximum amount permitted by applicable law. If outstanding fees are more than thirty (30) days overdue, SignUp may, without limiting its other rights and remedies, suspend its performance under the Agreement and the Customer's access to the SignUp Services, provided SignUp during that thirty-day period have given the Customer a written reminder and at least ten (10) days to remedy the non-payment.
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3.4
All fees may be subject to annual indexation which shall not exceed five percent (5 %). The Customer shall, however, not be subject to any annual indexation during the Initial Subscription Term.
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3.5
Unless otherwise set out in the Order Agreement, SignUp will invoice the first Subscription Fees in connection with the signing of the Agreement. Subsequent Subscription Fees will be invoiced annually in advance.
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3.6
Unless otherwise specified in Product Terms, maintenance services including continuous bug fixes, error corrections, and rectification of other equivalent defects brought to the Supplier's attention shall be included in the Subscription Fees.
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3.7
If Implementation Services are ordered from SignUp under the applicable Order Agreement and unless otherwise is set out in the applicable Product Terms, SignUp will invoice the fees for Implementation Services in two (2) tranches. The first forty (40) percent will be invoiced in connection with the signing of the Agreement and the remaining sixty (60) percent will be invoiced upon SignUp completing all tasks included in Implementation Services, as agreed in the applicable Statement of Work.
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4
VOLUME, VERIFICATION AND AUDIT
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4.1
The Customer agrees that its use of the Software Solutions is subject to the Volume set out in the applicable Order Agreement. The Customer further undertakes to inform SignUp without undue delay if the Customer's use of the Software Solutions exceeds the applicable Volume, or if the Customer becomes aware of any such impending overuse.
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4.2
The Volume ordered by the Customer may not be decreased/scaled down during the Subscription Term.
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4.3
SignUp reserves the right to embed a reporting mechanism in the Software Solutions to monitor the Volume. The reporting mechanism collects usage statistics on an aggregated level and does not transmit any technical, production or business data that the Customer processes with the Software Solutions.
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4.4
Subject to SignUp's prior and reasonable request, the Customer shall allow SignUp to perform audits not more frequent than one (1) time every calendar year in order to ensure the Customer's use of the Software Solutions in accordance with the Agreement. The Customer shall upon request provide SignUp (including its personnel and auditors) with reasonable access to operating environments, IT environments, personnel and relevant data and material, as required to confirm the Customer's compliance with the Agreement. The Customer's assistance in connection with the audit shall be provided at no charge.
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4.5
Notwithstanding the limitation in Section 4.4, if SignUp has reasonable reason to suspect ongoing overuse, SignUp shall be entitled to carry out an audit more than once per calendar year.
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4.6
Any information and access to be provided to external auditors shall be subject to their execution of an appropriate non-disclosure agreement.
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4.8
Should SignUp find that the Customer's use exceeds agreed Volume, SignUp shall recalculate and increase the Subscription Fee in proportion to such overuse, and invoice the Customer the delta between (i) the Subscription Fees paid by the Customer based on the agreed Volume, and (ii) the increased Subscription Fee by virtue of the Customer's actual Volume.
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5
CONFIDENTIALITY
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5.1
For the Subscription Term and for a period of five (5) years thereafter, each Party agrees:
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(a)

to hold all Confidential Information disclosed hereunder to it in confidence and to use at least the same degree of care that it uses to protect its own Confidential Information (but no less than reasonable care);

(b)

to use such Confidential Information solely for the purposes of the Agreement; and

(c)

not to disclose any such Confidential Information to anyone except its employees, Affiliates, and contractors on a need-to-know basis as required for a Party's fulfilments of its requirements under the Agreement provided that such individuals or entities are subject to obligations of confidentiality no less stringent than those set out herein.

5.2
Each Party shall be liable for the acts and omissions of any employees, Affiliates, and contractors as it is for its own acts and omissions.
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5.3
A Party may disclose Confidential Information (i) if approved by the other Party in writing, or (ii) to the extent compelled to do so by law (including regulations of a recognized stock exchange or multilateral trading facility), provided a Party gives the other Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party's cost, if the disclosing Party wishes to contest the disclosure. Moreover, each Party shall be entitled to disclose Confidential Information to its professional advisors (meaning any lawyers, auditors or accountants, but excluding any other sub-contractors, agents or representatives) solely for the purposes of receiving advice or services from the relevant advisor and provided such advisor(s) comply with equivalent confidentiality obligations to those imposed under this Agreement.
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5.4
The Parties acknowledge that, in addition to any other remedies that may be available by law, a Party may seek such injunctive relief, specific performance or other remedy as may be deemed proper by a court or any other competent body.
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6
LIABILITY AND LIMITATION OF LIABILITY
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6.1
Each Party shall compensate the other Party for any damages caused by breach of the Agreement, subject to the limitations in this Section 6 or as otherwise set out in the Agreement.
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6.2
In no event shall a Party, or its Affiliates, be liable under or in connection with the Agreement for any indirect, consequential, special, exemplary or incidental cost, loss or damage, or for any loss of profits, revenue, production, business opportunity, or loss of anticipated savings, goodwill or reputation, or loss or corruption of data, howsoever arising, even though the Parties may be aware of the possibility or likelihood of such cost, and regardless of the form of action or whether arising in contract, tort, negligence, by statute or otherwise.
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6.3
Each Party's maximum, cumulative and total liability for all obligations and liabilities arising under or in connection with the Agreement, whether in contract, tort, negligence, by statute or otherwise, shall in no event exceed the total Subscription Fee paid by the Customer to SignUp under the applicable Order Agreement in the Contract Year during which the claim was made.
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6.4
Neither Party excludes or limits its liability for (i) gross negligence of wilful misconduct (ii) death or personal injury caused by the negligence or wilful default of that Party, (iii) a breach of Section 4 (Confidentiality), (iv) any indemnity obligations set out in the Agreement, (v) any unauthorised use of the SignUp Services or infringement of Intellectual Property Rights, or (v) any other liability which cannot be excluded by law.
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6.5
SignUp shall not be in breach of the Agreement in respect of any non-performance of any of its obligations hereunder if and to the extent such non-performance is a consequence of (i) the Customer's failure to comply with its obligations under the Agreement or, (ii) a breach by caused by any Third Party Software, provided that SignUp uses all reasonable endeavours to mitigate the reason for the non-performance and to perform the SignUp Services notwithstanding the reason for the non-performance.
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7
INDEMNITY
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7.1
SignUp agrees to indemnify the Customer against third party claims related to the Customer's use of the SignUp Services, or parts thereof, infringes such third party's intellectual property rights. SignUp's obligation hereunder is subject to the SignUp Services being used in accordance with the terms and conditions set out in this Agreement and the conditions set out in this section 7. For the avoidance of doubt, the indemnity in this section 7 shall not apply to any Third-Party Software.
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7.3
Subject to sections 7.1 and 7.2, SignUp shall indemnify the Customer for such damages, liabilities, costs or expenses as are awarded in a final judgement or in a settlement which has been approved by the Supplier in writing.
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7.4
If the SignUp Services infringes third party intellectual property rights and the use of the SignUp Services is prevented or restricted by virtue of such infringement, SignUp shall at its own expense and option:
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(a)

Procure the licenses necessary for the Customer's continued use of the affected SignUp Services;

(b)

Replace the infringing SignUp Service or parts thereof with equivalent software;

(c)

Amend the SignUp Service in a way that the SignUp Service ceases to infringe third party intellectual property rights; or

(d)

If neither of the above listed options are possible, terminate the Agreement with immediate effect and refund any prepaid fees.

7.5
This section 7 constitutes the entire liability of SignUp, and the Customer's sole and exclusive remedy, with respect to any third-party claims of infringement of intellectual property.
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8
TECHNICAL REQUIREMENTS
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The Customer acknowledges that SignUp's delivery of a Software Solution may be dependent on the Customer's compliance with the technical requirements set out in the Product Catalogue for each Software Solution.

9
NO WARRANTY FOR THIRD-PARTY SOFTWARE
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9.1
Subject to what is set out in any Product Terms relating to Third-Party Software, the Customer acknowledges that each Third-Party Software is a standard product and is delivered "as is" and SignUp leaves no warranties or representations, whether expressed or implied to the Customer with regard to the Third-Party Software and expressly disclaims any liability, including but not limited to, functionality, fitness for purpose, loss of data, availability or freedom from errors and bugs.
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9.2
SignUp does not warrant that any Third-Party Software will function together with any third-party products. Moreover, SignUp disclaims all liability for any harm, damages or other liability caused by any third-party product used in connection with the Third-Party Software.
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9.3
The Customer acknowledges that the applicable Product Terms for Third-Party Software may include limited warranties and representations provided by the Third-Party Software Vendor.
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10
TERM AND TERMINATION
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10.1
The Agreement shall apply for as long as the Customer has a valid subscription or an ongoing Consultancy Service under an applicable Order Agreement. The Subscription Term for each SignUp Service ordered are set out in the applicable Order Agreement.
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10.2
Unless terminated by the Supplier or the Customer giving at least three (3) months written notice to the other Party prior to the end of each Initial Subscription Term, the subscription for the relevant Software Solution shall be prolonged automatically for consecutive periods of twelve (12) months each (an Extended Subscription Term). Termination of an Extended Subscription Term must be made at latest three (3) months prior to the end of the then current Extended Subscription Term. If not terminated within three (3) months prior to the end of the then current Extended Subscription Term, the subscription will be automatically prolonged for new Extended Subscription Term until terminated in accordance with the Agreement.
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10.3
The term for Consultancy Services are set out in the Consultancy Services Terms or the relevant Statement of Work.
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10.4
Either Party may terminate the Agreement, or parts thereof, if:
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(a)

the other Party commits or permits a material breach of the Agreement (including failure to pay) and the other Party fails to cure such breach, if the breach is capable of cure, within thirty (30) days of receipt of written notice from the terminating Party giving details of such breach; or

(b)

if the other Party is subject to an Insolvency Event.

10.5
The Customer acknowledges that SignUp may rely on third-party products and services (such as Third-Party Software) to provide SignUp Services. To the extent the relevant third-party supplier no longer provides such third-party products and services to SignUp, for whatever reason, and SignUp cannot reasonably find a suitable replacement provider, SignUp shall be entitled to terminate the affected SignUp Service with immediate effect.
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10.6
Termination does not release either Party from any liability which, at the time of such termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have pursuant to the terms of the Agreement with respect to any breach of the Agreement. Termination or expiration shall not relieve the Customer of its obligation to pay all fees that have accrued prior to the Effective Date of such termination or expiration or are otherwise payable to SignUp under the Agreement.
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10.8
If the Agreement is terminated by virtue of SignUp's material breach pursuant to Section 9.4(a), the Customer shall be entitled refund for any fees already paid by Customer, for Services not delivered by the time of termination, including without limitation, the pro-rata portion of the Annual Subscription Fee.
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11
MISCELLANEOUS
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11.1
Notice
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Except as otherwise specified in this Agreement, all notices related to this Agreement shall be in writing and shall be effective upon (i) personal delivery, (ii) the fourth Business Day after mailing, or (iii) the day of sending by email to each Party's designated contact set out in the applicable Order Agreement, or that otherwise has been communicated to and confirmed by SignUp. Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer in the applicable Order Agreement. All other notices to the Customer shall be addressed to the relevant role/individual designated by the Customer.

11.2
Publicity
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SignUp or its Affiliates may publicly identify the Customer as a customer, using the Customer's name and logo, including in presentations, marketing materials and on its website and social media. SignUp may issue a press release announcing the Customer's selection of the SignUp Services, the text of which shall be subject to the Customer's prior written approval, not to be unreasonably withheld or delayed.

11.3
Assignment
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The Customer may, with the prior written consent of SignUp, transfer or assign the Agreement (such consent not being unreasonably withheld or delayed). Any assignment or transfer attempted without the written consent of SignUp shall be null and void. SignUp may assign, in whole or in part, the Agreement, to any SignUp Affiliate subject to providing the Customer with prior written notice. The Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective successors and permitted assignees.

11.4
Subcontractors
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SignUp may engage subcontractors for the performance, in whole or in part, of any work under the Agreement. SignUp shall be responsible for such subcontractor's work as if it were its own personnel.

11.5
Force Majeure
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Neither Party shall be responsible or liable for delays, business interruption, or failure of performance (except obligations to pay) to the extent resulting from a Force Majeure Event. A Party experiencing such Force Majeure Event shall notify the other Party as soon as possible under the circumstances and take commercially reasonable steps to mitigate the effect of the Force Majeure Event.

11.6
Entire Agreement
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The Agreement shall be the entire agreement between the Parties regarding its subject matter, and shall supersede all other representations, understandings, or agreements, whether oral or written, between the Parties relating to such subject matter. What is set out in this Section 10.6 shall not apply with respect to provisions, set out in an Order Agreement not forming part of the Agreement, that the Parties expressly have agreed shall apply to this Agreement.

11.7
Waiver
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No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.

11.8
Survival and severability
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Sections 3 (Fees and payments), 4 (Confidentiality), and 6 (Liability and limitations of liability), and any other provisions which, in order to give effect to its meaning, needs or is intended to survive termination or expiration, shall remain in full force and effect until they are satisfied or by their nature expire. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of the Agreement shall remain in effect.

11.9
Relationship of the Parties
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The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither has power or authority to act as agent or employee or to represent, act for, bind, or otherwise create or incur any obligation on behalf of the other Party.

11.10
SignUp Entity, governing law, dispute resolution and notice
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The SignUp Entity entering into this Agreement, the address to which the Customer should direct notices under this Agreement, the governing law that shall apply to any dispute, controversy or claim arising out of or in connection with the Agreement and the applicable dispute resolution clause is set out in this Section 10.10 in the table below.

SignUp Entity:SignUp Software AB (publ)
Address for Notices:Evenemangsgatan 2 C, 169 79 Solna, Sweden
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of Sweden without regard to its choice of law principles.
Applicable dispute resolution clause:Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the "SCC"). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, considering the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.
SignUp Entity:SignUp Software Denmark ApS
Address for Notices:Lyngbyvej 2, 2100 Copenhagen, Denmark
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of Denmark without regard to its choice of law principles.
Applicable dispute resolution clause:Any dispute, controversy or claim arising in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The seat of arbitration shall be Copenhagen, Denmark. The language to be used in the arbitral proceedings shall be English. The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.
SignUp Entity:SignUp Software Benelux B.V.
Address for Notices:Slangenburch 20, 2681NL Monster, the Netherlands
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of the Netherlands without regard to its choice of law principles.
Applicable dispute resolution clause:All disputes arising in connection with this Agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Stichting Geschillenoplossing Automatisering ("SGOA"). The arbitration panel shall consist of one (1) arbitrator, unless the Parties agree that the panel should consist of three (3) arbitrators. The place of arbitration shall be Amsterdam (the Netherlands). The proceedings shall be conducted in English. Any court proceedings in the Netherlands before, during or after the arbitration shall - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal. The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.
SignUp Entity:SignUp Software Pty Ltd
Address for Notices:Three International Towers, Level 25, 300 Barangaroo Avenue, Barangaroo, NSW 2000, Australia
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of Australia without regard to its choice of law principles.
Applicable dispute resolution clause:Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales, Australia including, for the avoidance of doubt, the Federal Court of Australia sitting in New South Wales. The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.
SignUp Entity:SignUp Software Inc.
Address for Notices:3500 South DuPont Highway, Suite DN 101, Dover, DE 19901
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of Delaware without regard to its choice of law principles.
Applicable dispute resolution clause:a) Except as set forth in b) below, any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the City of Dover and the County of Kent, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. b) Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in the State of Delaware before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction (as set forth in a) above). The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.
SignUp Entity:SignUp Software AS
Address for Notices:House of Fellows, c/o Geir-Thomas Ringen, St. Croix gate 10C, 1604 Fredrikstad
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of Norway without regard to its choice of law principles.
Applicable dispute resolution clause:Any dispute, controversy or claim arising in connection with this Agreement shall be finally settled under the Rules of the Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The seat of arbitration shall be Oslo, Norway. The language to be used in the arbitral proceedings shall be English. The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.
SignUp Entity:SignUp Software UK Ltd.
Address for Notices:Richmond Bridge House, 419 Richmond Road, Twickenham, Middlesex, TW1 2EX, the United Kingdom
Governing law:This Agreement shall be governed by and construed in accordance with the substantive laws of England without regard to its choice of law principles.
Applicable dispute resolution clause:The courts of England shall have exclusive jurisdiction to settle any disputes (including non-contractual disputes) arising out of or in connection with the Agreement, and the Parties hereby submit to the exclusive jurisdiction of the English courts. The Parties undertake to procure that all litigation proceedings conducted in accordance with the Agreement shall be kept confidential. This undertaking shall cover, inter alia, all information disclosed during the course of such proceedings, as well as any decision or award made or declared by the arbitral tribunal, which in each case shall be deemed to constitute Confidential Information.