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METACOG SUBSCRIPTION AGREEMENT (co-branded service) This Subscription Agreement, including the Service Level Agreement available at www.metacog.com/terms.html (the “SLA” and, together with this Subscription Agreement, the “Agreement”) is a legal agreement between you and metacog, Inc. (“metacog”) governing the use of the metacog hosted analytics platform (the “Platform”) in combination with the third party (the “Co-Licensor”) applications described in Appendix A (the “Applications”) (collectively, the “Service”), and the related use of the metacog API (the “API”), that you as “Customer” may access and use upon your acceptance of this Agreement. By clicking on the “ACCEPT” button below, Customer is agreeing that it will be bound by this Agreement. Customer is also agreeing to metacog’s Privacy Statement available at www.metacog.com/privacy.html, as the same may be amended from time to time (the “Privacy Statement”). If Customer is an entity, and an individual is accepting this Agreement on its behalf, then Customer will be bound by this Agreement when that individual clicks on the “ACCEPT” button. When the individual does so, it will constitute a representation by that person that she or he is authorized to bind Customer as a party to this Agreement. If Customer does not agree to all of the terms of this Agreement, click the “DO NOT ACCEPT” button at the end of this Agreement. In consideration of the mutual covenants and promises contained in this Agreement, metacog and the Customer hereby agree as follows: 1. SERVICE USE; AND TRADEMARK LICENSE 1.1 Subject to the terms and conditions of this Agreement, including the attached Appendices (and any limitations therein), and during the Term, defined below, metacog hereby provides Customer with a limited, non-exclusive non-transferable, non-assignable (except as set forth in Section 11.1) and terminable license to use, market and sell access to the Service solely for Customer’s internal business operations and to use the API as a bundled component in Customer’s products and services that it licenses or otherwise similarly makes available to third parties. The API may not be provided by Customer to third parties on a stand-alone basis and may not be used by such third parties separate or apart from the Services. Customer may permit its third party contractors, subject to confidentiality and use obligations at least as restrictive as those set forth in this Agreement, to access and use the Service solely in connection with services provided by such third party contractors to Customer. 1.2 The use of the Service by Customer shall be limited to (i) use by the maximum number of users, and (ii) the maximum number of transactions selected by Customer in its enrollment in the Service. metacog will provide Customer the necessary passcodes to enable the users (including End Users) to access and use the Service, and Customer shall be responsible for the security of such passcodes. 1.3 Customer may use the marks listed in Appendix B (the “Marks”) solely in connection with the marketing, advertising, and promotion of the Service. 1.3.1 Customer acknowledges that metacog or the Co-Licensor are the owners of their respective Marks and all goodwill associated with their respective Marks and shall do nothing inconsistent with such ownership. Customer shall not challenge the validity of the Marks and shall not take any action or fail to take any action the result of which could adversely prejudice metacog’s or the Co-Licensor’s interest in the Marks. All use of the Marks, and the goodwill associated with such use of the Marks, by Customer inures to the benefit of and is on behalf of the owner of the respective Marks. To the extent any right, title or interest in and to the Marks or in the goodwill associated with the Marks are deemed to accrue to Customer, Customer agrees to assign and hereby does assign any and all such rights, title, interest and goodwill, at such time as they may be deemed to accrue, to metacog or the Co-Licensor, as appropriate. 1.3.2 Customer may use in connection with the Marks any other marks, logos, designs, or trade names owned by Customer, provided such marks, logos, designs, and trade names do not infringe any of the Marks or metacog’s or the Co-Licensor’s other intellectual property rights and such use is consistent with the terms of this Agreement, including but not limited to, such Trademark Usage Standards as may be provided to Customer from time to time by metacog. 1.3.3 Customer shall use the Marks in a manner consistent with Appendices. If a Mark is federally registered in the U.S., the Mark shall be properly marked with a ® symbol as long as the Mark remains registered. The parties share a mutual interest in preserving the goodwill associated with the Marks. Customer shall ensure use of the Marks is in accordance with this Agreement and all applicable laws and regulations. Customer shall cooperate with metacog and/or the Co-Licensor in facilitating their control of the reasonable nature and quality of the services and goods provided under the Marks and any related advertising, promotional or other uses of the Marks, shall permit reasonable inspection of Customer’s operation, and shall supply metacog and/or the Co-Licensor with specimens of all uses of the Marks upon reasonable request. 1.3.4 Fifteen (15) days prior to first use of any Mark, Customer agrees to submit representative copies of proposed materials, bearing the Marks to metacog for review, and Customer shall comply with the requirements of metacog and/or the Co-Licensor regarding the manner of use of the Marks. If Customer receives no written response within five (5) business days of submission of proposed materials, Customer may consider such proposed use as being approved. Once Customer receives approval of materials bearing the Marks, Customer has no obligation to obtain approval from metacog for materials having substantively similar use of the Marks. 1.3.5 Customer shall notify metacog immediately of any suspected misuse or infringing use of the Marks and shall supply metacog with specimens of the suspected infringing use of the Marks upon reasonable request. As between Customer and metacog, metacog (or the Co-Licensor at its request) has the sole right and discretion to bring infringement or unfair competition proceedings involving the Marks. Customer shall reasonably cooperate with metacog or the Co-Licensor in any such proceedings. 1.4 This Agreement shall also apply to any modules or features subsequently provided by metacog to Customer, and/or that have been purchased by Customer from metacog that augment, enhance or are otherwise used in conjunction with the Service. 1.5 No other rights with respect to the Service or its underlying software or other technology are granted under this Agreement. Except for the limited licenses to use the Service specified in this Agreement, all rights, title and interests, including without limitation intellectual property rights, in and to the Service, including the API, and all related documentation or other materials, are retained by metacog, the Co-Licensor or their licensors. 1.6 Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while accessing and using the Service. Further, Customer is solely responsible for its actions and the actions of any user of Customer’s account, and all End Users, while using the Service and the contents of their transmissions through the Service. Customer agrees: (i) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Service, including without limitation all laws regarding the transmission of technical data exported from the United States through the Service; (ii) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service or another's computer; (iii) not to use the Service for illegal purposes; (iv) not to interfere or disrupt networks connected to the Service; (v) not to post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable or offensive material of any kind or nature; (vi) not to post, promote or transmit through the Service any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (vii) not to interfere with another customer's use and enjoyment of the Service or another entity's use and enjoyment of similar services; (viii) not to use the Service to engage in contests, chain letters or post or transmit “junk mail,” “spam,” “chain letters,” or unsolicited mass distribution of email; and (ix) to comply with all regulations, policies and procedures of networks connected to the Service. 2. RESTRICTIONS AND CONFIDENTIALITY 2.1 Customer agrees to take all reasonable steps to protect the Service from unauthorized access or use. The Service, including the API, represents and embodies trade secrets of metacog, the Co-Licensor and/or their licensors. The underlying source code, source data, and such trade secrets are not licensed to Customer. Customer shall not reverse engineer, decompile, disassemble, modify, adapt, or otherwise attempt to derive the source code from the underlying software, and any attempt to do so is strictly prohibited. All agreements between Customer and its customers or users relating to the Services or the use of the API will contain protections and limitations similar to the protections and limitations set forth herein. 2.2 Confidentiality. 2.2.1 “Confidential Information” means: (a) any non-public technical or business information of a party, including without limitation any information relating to a party's techniques, algorithms, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information; (b) any other information of a party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that given the circumstances surrounding the disclosure would be reasonably perceived as being confidential. All Customer Data, as described in Section 6, will be deemed Confidential Information of Customer. 2.2.2 “Confidential Information” will not include any information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) the receiving party can demonstrate by written evidence was rightfully in the receiving party's possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or (d) the receiving party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure. 2.2.3 Each party will at all times maintain in confidence all Confidential Information of the other party and will not use such Confidential Information except as expressly permitted herein. Each party will take all reasonable measures to maintain the confidentiality of such Confidential Information, but not less than the measures it uses for its confidential information of similar importance. Each party will limit the disclosure of such Confidential Information to those of its employees and contractors with a bona fide need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement; provided that all such employees and contractors are subject to binding use and disclosure restrictions at least as protective as those set forth herein. 2.2.4 Each party acknowledges that for any breach of this Section 2 by the other, the aggrieved party will not have an adequate remedy at law and may seek (without limiting the right to any other remedy) the entry of an injunction against any threatened or continuing breach by any court of competent jurisdiction. 3. TERM OF AGREEMENT The term of this Agreement is for a total of twelve (12) months from the date of Customer’s acceptance of this Agreement, or such lesser free trial or research periods selected by Customer in its enrollment in the Service (“Initial Term”), unless earlier terminated pursuant to the “Termination Section” of this Agreement. For Customers who have selected a free trial or research period, this Agreement will terminate at the end of the applicable period. For all other Customers, at the end of the Initial Term this Agreement will automatically be extended for successive renewal terms of one (1) year each (each a “Renewal Term”) (collectively the “Term”) unless either party in its discretion elects not to renew and provides the other with written notice of its intention prior to the commencement of the Renewal Term. 4. FEES AND PAYMENT 4.1 When enrolling in the Service Customer will select either a Monthly or Annual Billing option (each such period being a “Billing Period”). Customer must pay the first Monthly Subscription Fee or Annual Subscription Fee (collectively, “Subscription Fees”) upon acceptance of this Agreement. Subsequent Monthly or Annual Subscription Fees will be due prior to the commencement of the subsequent Billing Period. metacog reserves the right to terminate Customer’s access to the Service for or during any period of non-payment of a Subscription Fee. Except as specifically set forth in this Agreement, all fees are non-refundable. 4.2 The fees and other amounts required to be paid under this Agreement are exclusive of taxes. Customer will be responsible for and will reimburse metacog for all sales, use, excise (but not corporate excise), or other similar state or local taxes. Such provision excludes metacog’s income taxes, franchise taxes (including corporate excise taxes), and taxes on metacog’s property used to provide the Services. 4.3 All fees are in U.S. dollars. All past due amounts are subject to a late charge equal to the lower of (i) one and one-half percent (1.5%) per month, or (ii) the highest amount permitted by applicable law. 5. SERVICE LEVELS AND MAINTENANCE 5.1 metacog will provide the Service in accordance with the SLA. 5.2 metacog will maintain the Service at a hosting facility that offers commercially reasonable security precautions to prevent unauthorized access to the Service. Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and the Customer Data. metacog cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet. 6. OWNERSHIP OF CUSTOMER DATA; USE OF DATA; PERSONAL INFORMATION 6.1 The parties acknowledge that, as between them, all data entered by Customer or its representatives or licensees into, or otherwise transmitted by such parties to the Service or metacog’s systems (“Customer Data”) is owned by Customer. Customer Data does not include Aggregated Data, as described below, which shall be the property of metacog. 6.2 Customer acknowledges and agrees that metacog may use and distribute aggregate, anonymized data derived from Customer Data and Customer’s other use of the Service (“Aggregated Data”) for purposes of analysis, reporting and developing improvements in the Service and the products and services offered by metacog. In addition, metacog may use in its marketing and advertising the total number of users, search or transaction volumes, and other aggregate statistics to attract new customers. 6.3 Customer represents and warrants that no Customer Data or other materials it or its representatives, users or agents provide to metacog pursuant to this Agreement will include any personally identifiable information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context. Customer shall comply in all respects with the Family Educational Rights and Privacy Act of 1974, as amended (“FERPA”), the Children’s Online Privacy Protection Act of 1998, as amended (“COPPA”) in its use of the Service and performance of this Agreement, and other applicable laws, and shall not provide to metacog any Customer Data or other materials that would result in metacog being subject to compliance with FERPA or COPPA. Customer represents that the use of data by metacog pursuant to Section 6.2 will not (i) infringe upon any person’s or entity’s intellectual property rights or other proprietary interests or invade any person’s or entity’s privacy and that (ii) the use of such data by metacog will not result in any violation of applicable law (including without limitation FERPA and COPPA) or any agreement to which Customer is a party or by which Customer is bound. 6.4 Customer will indemnify, defend and hold metacog harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or in connection with any breach of Customer’s representations or obligations set forth in this Section 6. Customer will have the sole and exclusive authority to defend and/or settle any such claim or action, provided that Customer will keep metacog informed of, and will consult with any independent attorneys appointed by metacog at its expense, regarding, the progress of such litigation. 7. TERMINATION 7.1 This Agreement may be terminated as follows: 7.1.1 by either party, upon thirty (30) days written notice to the other party, if such other party materially breaches any obligation required of it under this Agreement and such failure is not cured within such thirty (30) day period; or 7.1.2 by either party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition under bankruptcy laws filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, makes an assignment for the benefit of creditors or is adjudicated a bankrupt concern; or 7.1.3 by metacog upon ten (10) days written notice to Customer if Customer fails to perform any payment requirement under this Agreement and such failure is not cured within such ten (10) days period. 7.2 Without limiting the foregoing, if Customer fails to pay any Subscription Fees or other amounts due to metacog, metacog may block Customer’s access to and use of the Service until such payments are made. The exercise of the foregoing right will not in any way limit metacog’s right to thereafter terminate this Agreement if such amounts remain unpaid. No termination of this Agreement will affect any obligation to make payment of outstanding amounts owed by Customer to metacog. 7.3 Upon any termination of this Agreement (i) Customer will immediately discontinue all use of the Service and delete and destroy all copies of any Confidential Information of metacog, and metacog will promptly return to Customer all Customer Data (but not Aggregated Data). 7.4 All payment obligations of Customer and the rights and obligations of the parties under Sections 2, 6, 8, 10 and 11 will survive the termination of this Agreement. 8. LIMITED WARRANTY 8.1 The SLA specifies Customer’s sole remedies, and metacog’s sole liabilities, should the Platform be unavailable for a period of time or for Errors (as defined below). metacog will use reasonable efforts to provide advance notice of scheduled maintenance downtime. If Customer suspects an incorrect functioning of the Platform (an “Error”), it must submit such information as required to reproduce operating conditions similar to those present when the suspected Error occurred. metacog will use commercially reasonable efforts to address any Errors in the Service. 8.2 metacog represents, warrants and covenants that it has the authority and the right to enter into this Agreement and to provide the Platform under this Agreement. 8.3 METACOG, ON ITS OWN BEHALF AND ON BEHALF OF CO-LICENSOR, HEREBY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY MADE IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE. 8.4 METACOG’S AGGREGATE LIABILITY FOR ALL CLAIMS OR RELATED CLAIMS ARISING OUT OF THIS AGREEMENT DURING THE INITIAL TERM OR ANY RENEWAL TERM WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID TO METACOG BY CUSTOMER WITH RESPECT TO THE APPLICABLE TERM. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT NEITHER METACOG, CO-LICENSOR OR THEIR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF METACOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER DATA; (iv) OR ANY OTHER MATTER RELATING TO THE SERVICE. 9. INFRINGEMENT 9.1 If Customer promptly notifies metacog in writing of a third party claim or action against Customer of infringement or misappropriation of any U.S. patent, copyright, trademark or trade secret by reason of the use by Customer of the Platform as permitted hereunder, metacog will defend such action at its expense and will pay any cost or damages that are awarded against Customer resulting from such action or agreed to in a settlement by metacog. metacog will have the sole and exclusive authority to defend and/or settle any such claim or action, provided that metacog will keep Customer informed of, and will consult with any independent attorneys appointed by Customer at Customer’s own expense regarding the progress of such litigation and provided that such settlement does not impose any liability (financial or otherwise) on Customer. 9.2 Upon metacog’s sole determination, or after the entry of any judgment or order not subject to further appeal, that the use of the Platform by Customer infringes upon the rights of any third party and that such use of the Service must cease, Metacog at its election will, at its own cost and expense, either (i) procure for Customer the right to continue the use of the Platform “as is”, (ii) modify the Platform in such a way that its use does not infringe upon the rights of third parties, or if options (i) and (ii) are not commercially practicable, (iii) terminate this Agreement by notice to Customer and refund to Customer the amount of any prepaid [Monthly/Annual Subscription Fees]. The foregoing states metacog’s entire liability and obligation, whether statutory, contractual, express, implied or otherwise, for claims of intellectual property infringement. 9.3 Except where metacog is obligated to indemnify Customer as set forth above, Customer will indemnify, defend and hold metacog harmless from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or in connection with Customer’s use of the Service, except for claims based on metacog’s negligence or unlawful conduct. Customer of will have the sole and exclusive authority to defend and/or settle any such claim or action, provided that Customer will keep metacog informed of, and will consult with any independent attorneys appointed by metacog at its expense, regarding, the progress of such litigation. The foregoing indemnification is in addition to the indemnification obligations of Customer under Section 6.4. 10. PUBLICITY Customer agrees that metacog and Co-Licensor may, during the term of this Agreement, reference Customer’s names in publically available customer lists. 11. EXPORT Customer shall not export or re-export the Service, Confidential Information or technical information to any country, individual, or entity except when such export or re-export is authorized in full compliance with the laws and regulations of the United States of America, as applicable. Applicable laws and regulations may include but are not limited to the Export Administration Regulations, the International Traffic in Arms Regulations, and the economic sanctions regulations administered by the U.S. Department of the Treasury. 12. MISCELLANEOUS 12.1 This Agreement shall inure to benefit and bind the parties hereto, their successors and permitted assigns; provided, however that Customer may not assign this Agreement without metacog’s prior written consent. Any attempt at assignment without such consent shall be null and void and of no force and effect. 12.2 This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties. 12.3 This Agreement, including the SLA, and the Privacy Statement, any exhibits and/or attachments hereto and thereto, and all Service enrollment forms or instructions sets forth the entire understanding and agreement between Customer and metacog with respect to the use of the Service and supersedes all proposals or communications, oral or written, between the parties relating to the subject matter of this Agreement. No modification of this Agreement shall be binding unless it is in writing and is signed by authorized representatives of both parties. 12.4 This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts, USA. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) will be subject to the exclusive jurisdiction of the state or federal courts located in Boston, Massachusetts. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. 12.5 No waiver of any right under this Agreement will be deemed effective unless contained in writing signed by the waiving party’s duly authorized representative, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement. 12.6 Should any provision of this Agreement be invalid, ineffective, or unenforceable under present or future laws, the remainder of the provisions shall remain in full force and effect and in no way be affected, impaired, or invalidated. 12.7 If by reason of labor disputes, strikes, lockouts, riots, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, appropriation or other causes beyond the control of a party, either party is unable to perform in whole or in part its obligations as set forth in this Agreement, then such party shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make such party liable to the other party. Neither party shall be liable for any loss, injury, delay or damages suffered or incurred by the other party due to the above causes. APPENDIX A UNIVERSITY OF colorado/phet interactive simulations The following terms and conditions are in addition to the terms and conditions set forth in the Agreement and relate to the access to and use of the PhET Interactive Simulations (referred to in the Agreement as the “Applications”) created by the University of Colorado (the “Co-Licensor”) as part of the PhET Interactive Simulations Project. In the event of a conflict between the Agreement and this Appendix A, this Appendix A shall control. All Sectional references are to Sections in the Agreement. 1. In connection with the license set forth in Section 1.1, Customer shall have a limited, non-exclusive, non-transferable, non-assignable (except as set forth in Section 11.1) and terminable license to market or sell access to the Applications to (i) End Users for their own internal use and not for copying, decompiling, reproduction, or distribution or resale to others, and (ii) other educational application or services providers (“Secondary Customers”) in order to provide End Users of such Secondary Customers with access to the Service for use in accordance with the preceding subparagraph (i). The license granted to Customer herein permits use of the Applications only in conjunction with the PLATFORM AND API. customer is not permitted to market, combine, or sell access to the applications in conjunction with any other third party SERVICE. Any promotion or use of the Applications decoupled from the PLATFORM AND API is strictly prohibited. All rights and licenses granted to Customer in Section 1 with respect to the Service (including the Applications) may be sublicensed by Customer to Secondary Customers and Customer shall ensure that all Secondary Customers are subject to an agreement containing terms and conditions substantially similar to those set forth herein. Customer shall be responsible for any breach by any Secondary Customer of the terms and conditions of this Agreement. 2. In connection with the license to use the Marks set forth in Section 1.3, with respect to registered trademarks of the Co-Licensor, Customer shall prominently identify that Co-Licensor is the owner of its Marks, as designated in Appendix B, on all printed and display materials through the use of a credit line which reads: “MARK® is a registered trademark owned by the Regents of the University of Colorado, a body corporate, and is being used under license.” 3. Customer may identify metacog, the Co-Licensor and the PhET Project in any promotional advertising, press releases, sales literature or other promotional materials to be disseminated to the public or any portion thereof solely in conjunction with its marketing and distribution of the Service to Secondary Customers without metacog’s or the Co-Licensor’s prior written consent, so long as Customer does not identify or portray metacog, the Co-Licensor or the PhET Project as endorsing any of Customer’s other products or services. Customer’s use of the Marks shall be consistent with the terms and conditions of Section 1.3 of this Agreement. Customer shall not use the name of any Co-Licensor faculty member, authors, employee or student, without the prior written consent of the person whose name is sought to be used. 4. Co-Licensor makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to use, sale, or other disposition by Customers, Secondary Customers, End Users, or other users of the Service. There are no express or implied warranties of merchantability or fitness for a particular purpose, or that the access to or use of or sublicensing access to your use of the Applications or the Co-Licensor’s Marks will not infringe any patent, copyright, trademark, service mark, or other rights. Nothing in the Agreement or this Appendix may be construed as: a warranty or representation by Co-Licensor as to the validity or scope of any of the rights included in the Service or the Marks; a warranty or representation by Co-Licensor that the Service or the Marks will or will not infringe patents, copyrights or other rights of third parties; an obligation of Co-Licensor to furnish any know-how or services not agreed to in this Agreement, or an obligation of Co-Licensor to bring or prosecute actions or suits against third parties for infringement. 5. The Applications incorporate third-party Open Source Materials and are subject to the terms and conditions governing the use of such Open Source Materials (a list of the Open Source Materials used in the Applications is available at the following URL: http://phet.colorado.edu/third-party-libraries). Customer is bound by the terms and conditions of the applicable open source license and is solely responsible for compliance with such terms and conditions. CO-LICENSOR ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH RESPECT TO CUSTOMER’S COMPLIANCE WITH THE TERMS AND CONDITIONS GOVERNING THE USE OF ANY OPEN SOURCE MATERIALS INCORPORATED INTO THE LICENSED SOFTWARE OR DERIVATIVE WORKS. For purposes of this Agreement, “Open Source Materials” means any software, library, utility, tool, or other computer or program code (collectively, “Code”) that is made available or distributed in source code form, including but not limited to, any Code licensed or distributed under an open source license approved by the Open Source Initiative. 6. Customer shall indemnify, defend, and hold Co-Licensor, its regents, employees, students, officers, agents, affiliates, representatives, and authors (“Indemnitees”) harmless from and against all liability, demands, damages, losses, and expenses (including attorney fees), for death, personal injury, illness, property damage, noncompliance with applicable laws and any other claim, proceeding, demand, expense and liability of any kind whatsoever in connection with or arising out of: the design, manufacture, production, distribution, advertisement, consumption, sale, lease or use by or on behalf of Customer, Secondary Customers, End Users or third parties of the Application or the Co-Licensor’s Marks; or any right or obligation of Licensee under this Agreement.