Master Subscription & Professional Services Agreement

This agreement governs your acquisition and use of Costello, Inc. (“Company) Services.

If you register for a Free Trial for our Services or for Free Services, the applicable provisions of this Agreement will also govern that Free Trial or those Free Services.

By accepting this agreement, either by clicking a box indicating Your acceptance or by executing an Order Form that references this agreement or by using the Services, You agree to the terms of this agreement. If You are entering into this agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” refers to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use these services. Henceforth, “You” will be known as “Customer” for the purpose of this Agreement.

Customer may not access the Services if Customer is Company’s direct competitor, except with Company’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This agreement was last updated on September 25, 2018. It is effective between Customer and Company as of the date of accepting this Agreement.

In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

“Agreement” shall mean this Master Subscription and Professional Services Agreement.

“Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Application Services” shall mean the on-demand sales process effectiveness platform provided by Company.

“Order Form” shall mean the ordering documents or an online order for Customer’s purchases of Services from Company that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein.

“Company” shall mean Costello, Inc.

“Customer” shall mean the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

“Customer Data” shall mean all electronic data or information submitted by Customer to the Application Services.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.

“Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers. Non-Public Personal Information specifically does not include derived information such as segments, scores, or lifecycle attributes used to make decisions within the Application Services.

“Professional Services” shall mean the implementation, integration, consulting and similar services described in an SOW.

“Project Start Date” shall mean some date mutually agreed upon by the parties following execution of a Order Form, upon which date Company shall commence provision of Professional Services under an SOW.

“Scope of Professional Work” or “SOW” shall mean the document describing the scope and schedule of Professional Services to be performed by Company for Customer. Each SOW should be attached to a Order Form and shall be governed by the terms of this Agreement.

“Services” shall mean the Application Services and Professional Services collectively.

“Start Date” shall mean the date on which Company shall make the Application Services available to Customer as set forth in an applicable Order Form.

“Subscription Term” shall mean the subscription period set forth in an applicable Order Form.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

2. FREE TRIAL

2.1 Free Trial. If Customer registers on Company’s website or completes an Order Form for a free trial, Company will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscription ordered by Company for such Service(s), or (c) termination by Company in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR PURCHASE APPLICABLE UPGRADED SERVICES, BEFORE THE END OF THE TRIAL PERIOD.

NOTWITHSTANDING SECTIONS 8 (WARRANTIES AND DISCLAIMERS) AND 9 (INDEMNIFICATION), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION OF LIABILITY), CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

Please review the applicable Service’s Documentation during the trial period so that Customer is familiar with the features and functions of the Services before Customer makes Customer’s purchase.

2.2 Free Services.  Company may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.2 (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to Customer without charge up to certain limits as described in the Documentation or an applicable Order Form. Usage over these limits requires Customer purchase of additional resources or services. Customer agree that Company, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Company will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer’s Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Company terminates Customer’s account, except as required by law Company will provide Customer a reasonable opportunity to retrieve Customer’s Data.

NOTWITHSTANDING SECTIONS 8 (WARRANTIES AND DISCLAIMERS) AND 9 (INDEMNIFICATION), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION OF LIABILITY), CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3. USE OF THE APPLICATION SERVICES

3.1 Company Responsibilities. Company shall for Purchased Services: (a) provide the Application Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) provide basic support to Customer at no additional charge (a description of basic support attached hereto as Exhibit “Order Form”); and (c) use commercially reasonable efforts to make the Application Services available 24 hours a day, seven days a week, except for planned downtime, for which the Company will provide Customer prior written notification of at least 7 business days or any unavailability caused by circumstances beyond Company’s reasonable control; (d) provide Customer with the right to access and use the Application Services during the Subscription Term; and (e) maintain and implement throughout the Subscription Term industry standard reasonable security measures to prevent unauthorized access, alteration or destruction of Customer Data.

3.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, Customer’s accounts in the Application Services, and notify Company promptly upon becoming aware of any such unauthorized access or use; and (c) comply with all applicable laws and regulations in using the Application Services. Customer shall not upload to, or store within, the Application Services (and the Customer Data shall not contain) any Non-Public Personal Information, but may upload personal information necessary for the use of the Application Services such as customer name, email address, and mobile phone number.

3.3 Use Guidelines. Customer shall use the Application Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party except as contemplated by this Agreement; (b) send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the Application Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the Application Services any Malicious Code; or (e) attempt to gain unauthorized access to the Application Services or its related systems or networks.

4. FEES & PAYMENT FOR PURCHASED SERVICES

4.1 Service Fees. Company will invoice Customer for other Services and work performed as set forth in such Order Form or SOW. Except as otherwise specified in a Order Form, fees are based on the Services purchased and not actual usage; if not stated otherwise in a certain purchase order or SOW, payment obligations are non-cancelable; fees paid are non-refundable; and the Services purchased cannot be decreased during the relevant Subscription Term.

4.2 Overdue Payments. Customer’s failure to pay, as set forth herein in this subsection 4.2, shall constitute a material breach of this Agreement and Company may impose late fees as contemplated in each Order Form. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), Company may, in addition to any of its other rights or remedies, suspend Customer’s access to the Application Services and/or suspend provision of Professional Services until such amounts are paid in full. If such failure to pay has not been cured within 30 days of the due date, then upon written notice Company may terminate this Agreement and any or all outstanding Order Form.

5. PROPRIETARY RIGHTS

5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company shall not access Customer’s user accounts, including Customer Data, except to respond to Service or technical problems or at Customer’s request. Company may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Customer shall not (a) modify, copy or create derivative works based on the Application Services; or (b) reverse engineer the Application Services.

5.2 Improvements; Deliverables. Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvement to the Application Services or any new programs, upgrades, modifications or enhancements developed by Company in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Company by virtue of this Agreement or otherwise, Customer hereby transfers to Company all rights, title, and interest which Customer may have, and such transfer is irrevocable, irreversible and binding on Customer’s successors. Company hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Company for Customer under a Scope of Professional Work (“Deliverables”). Company shall retain all ownership rights to the Deliverables. Customer agrees that Company may use statistical, aggregate, or deidentified data that is derived from the Customer Data so long as such data does not identify an individual person or the Customer itself for statistical purposes, research, benchmarking, to improve Company’s Application Services .

6. CONFIDENTIALITY

6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement, any Order Form, the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees who need to know such information for purposes of performing the Services, provided that such employees are bound by written confidentiality and non-use undertakings towards Receiving Party which are at least as restrictive as those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.

6.3 Compelled Disclosure; Remedies. If the Receiving Party is compelled by law, an order issued by a judge or public competent authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek to file a lawsuit to enjoin such acts.

7. PROCESSING OF PERSONAL DATA

7.1 Definition of Personal Data. As used herein, “Personal Data” means any information relating to an identified or identifiable natural person (“data subject”), to the extent that such personal data are associated with European Economic Area residents or are otherwise within the scope of the General Data Protection Regulation (EU) 2016/679 (“GDPR”).

7.2 The Parties’ Roles. For the purposes of processing Personal Data in compliance with the GDPR, Company is the data “processor” and the Customer is the data “controller.” The terms “processing,” “processor,” and “controller” as used herein shall have the same meaning as ascribed to them in Article 4 of the GDPR.

7.3 Customer’s Obligations. Customer shall ensure that its instructions to Company for the processing of Personal Data pursuant to this Agreement shall comply with the GDPR and other applicable privacy and data protection laws and regulations (collectively, “Applicable Data Laws”).  Customer will further independently determine whether its use of the Services is appropriate and permitted under the Applicable Data Laws.  Customer acknowledges that Company has no liability in the event Customer’s acts or omissions with respect to its use of the Services do not meet the requirements of the Applicable Data Laws.  If Customer or any end user of the Services is located in the European Economic Area (EEA), then Customer shall obtain all appropriate consents, make all necessary disclosures, and take all other required steps to comply with the Applicable Data Laws in connection with Customer’s use of the Services.

8. WARRANTIES & DISCLAIMERS

8.1 Customer Warranties. Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; and (b) Customer shall not use the Services in a manner that violates any law.

8.2 Company Warranties. Company represents and warrants that: (a) the functionality of the Application Services will not be materially decreased during a Subscription Term; (b) Company shall utilize software and other security means to prevent the Application Services from containing or transmitting Malicious Code; and (c) it owns or otherwise has sufficient rights in the Application Services to grant to Customer the rights to use the Application Services granted herein.

8.3 Company represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer must report any deficiencies in the Professional Services to Company in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this subsection, Customer’s exclusive remedy, and Company’s entire liability, shall be the re-performance of the Professional Services. If Company is unable to re-perform the Professional Services as warranted within 30 days of receipt of notice of breach, Customer shall be entitled to recover the fees paid to Company for the deficient Professional Services.

9. INDEMNIFICATION

a) Customer shall defend, indemnify, and hold Company, its Affiliates, and their respective officers, directors, and employees, harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a claim that arises due to Customer’s breach of its obligations under this Agreement

b) Company shall defend, indemnify, and hold Customer, its Affiliates, and their respective officers, directors, and employees, harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a claim that arises due to (1) a breach of Company’s obligations hereunder, (2) any material breach of Company’s representations or warranties contained herein, or (3) any infringement by Company of any intellectual property rights of a third party; provided, however, that Company shall have no such indemnification obligation to the extent such infringement: (i) originates from the use of the Application Services in combination with other software, data products, processes, or materials by the Customer and the infringement would not have occurred but for the combination; (ii) arises from or relates to modifications of the Application Services not made or authorized by Company; or (iii) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Company.

9.2 Procedure.

a) As an express condition to Customer’s indemnification obligation under this Section 9a, Company shall: (a) promptly notify Customer in writing of the applicable claim for which indemnification is sought; and (b) provide Customer with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such claim.

b) As an express condition to Company’s indemnification obligation under this Section 9b, Customer shall: (a) promptly notify Company in writing of the applicable claim for which indemnification is sought; and (b) provide Company with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such claim.

10. LIMITATIONS

10.1 Limitation of Liability. EXCEPT FOR BREACH OF CONFIDENTIALITY OR MISHANDLING OF CUSTOMER DATA IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

10.2 Exclusion of Consequential and Related Damages. EXCEPT FOR CONSEQUENTIAL AND INDIRECT DAMAGES FOR BREACH OF CONFIDENTIALITY OR MISHANDLING OF CUSTOMER DATA, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. TERM & TERMINATION

11.1 Term. This Agreement commences on the Effective Date and continues until terminated as set forth in this Section 11 (the “Term”). Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. The Initial Term will automatically renew for successive periods of twelve (12) months (each a “Renewal Term,” and the Initial Term and Renewal Term are collectively, the “Term), unless a party gives the other party written notice of non-renewal at least THIRTY (30) days prior to the end of the then current Term, or the Agreement is sooner terminated as provided in the Terms and Conditions. Professional Services shall commence on the Project Start Date and shall continue until such Professional Services are completed.

11.2 Termination for Cause. A party may terminate this Agreement for cause (a) if the other party materially breaches any obligation hereunder and the breaching party fails to cure such breach within 30 days after written notice of a material breach to the other party if such breach remains uncured at the expiration of such 30 day period; or (b) upon written notice if the other party is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding which are not dismissed within sixty (60) days of commencement, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due; or (c) a receiver, trustee in bankruptcy, or similar officer is appointed for the other party’s property. Upon any termination for cause by Customer, Company shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination, less reasonable expenses incurred by Company to perform the Services. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. Upon any termination for cause by Company, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.

11.3 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment For Purchased Services,” “Proprietary Rights,” “Confidentiality,” “Warranties & Disclaimers,” “Indemnification,” “Limitations,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

12. GENERAL PROVISIONS

12.1 Relationship of the Parties. The relationship between the parties created by this Agreement is one of independent contractors and neither party shall have the power or authority to bind or obligate the other except as expressly set forth in this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

12.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Form), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.3 Governing Law. This Agreement shall be governed exclusively by the laws of the State of Delaware, without regard to its conflicts of laws rules. All disputes arising out of or in connection with this Agreement or its validity shall be finally settled by a court in Wilmington, Delaware, and the parties expressly agree to the jurisdiction thereof.

12.4 Miscellaneous. This Agreement, including all Exhibits, Order Form and Statements of Work, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit, Order Form, or Scope of Professional Work, the terms of this Agreement shall prevail unless expressly stated otherwise in such Exhibit, Order Form, or Scope of Professional Work. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid provision that is closer to the scope and intent of the invalid provision and shall not affect the validity of the remaining provisions hereof. This Agreement may be executed in two (2) counterparts with the exact same contents, which taken together shall form one legal instrument.

12.5 Customer Reference. You agree (a) that Company may identify you as a recipient of services and use your logo in sales presentations, marketing materials, and press releases, and (b) to develop a brief profile for use by Company on AndCostello.com for promotional purposes.