Equity Solutions master subscription agreement

Last Updated January 20, 2021

This Master Subscription Agreement (“Agreement”) is entered into between Figure Technologies, Inc. (“Figure”) and the customer named below (“Customer”) effective as of January 20, 2021 (“Effective Date”). Figure and Customer may be referenced to individually herein as “Party” and collectively as the “Parties.”

1. DEFINITIONS

1.1         “Customer Content” means any text, data, images, or other materials by Customer or its End Users through the Figure Services. 1.2         “End User” means an individual who has been supplied user credentials for the Figure Services by Customer, or by Figure at Customer’s request, and may include, without limitation, employees, consultants, contractors, agents, or shareholders of Customer, or third parties with which Customer transacts business. 1.3         “Figure Services” means Figure’s hosted services and data related to its Figure Equity Solutions capitalization table management product, as identified on an Order. 1.4         “Order” means a mutually accepted quote, order form, or other ordering document that is (a) signed by the Parties and (b) expressly references and incorporates this Agreement.

2. SERVICES

2.1         Access and Use. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Figure grants Customer a non-exclusive, non-transferable and non-sublicensable license to access and use the Figure Services during the Term by up to the maximum number of End Users specified in the applicable Order. 2.2         Terms of Use. Customer understands and agrees that Figure may require each of Customer’s End Users to agree to Figure Equity Solutions’s end user terms, available at https://www.figure.com/equity-solutions/terms/  Opens a new window., and Figure’s Privacy Policy, available at https://www.figure.com/privacy/  Opens a new window. (together, the “Terms of Use”), in order to use the Figure Services. Figure will have no obligation to permit any User to access or use the Figure Services if such User does not agree to the Terms of Use. 2.3         Services. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Figure will use commercially reasonable efforts to provide the Figure Services set forth in the applicable Order and any support services set forth thereto; provided that Customer is solely responsible for maintaining its equipment.

3. CUSTOMER OBLIGATIONS

3.1         Restrictions on Use of Figure Services. Customer will not, and will not authorize any person to, directly or indirectly: (i) copy, modify, translate, adapt, or create derivative works of the Figure Services (including all technology or data constituting or used to provide the Figure Services) or Figure’s data; (ii) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of the Figure Services; (iii) write or develop any program based upon the Figure Services; (iv) sell, rent, lease, sublicense, redistribute, transfer any rights in, use for the benefit of, or allow access to, the Figure Services to any third party (except to End Users); (v) transmit unlawful, infringing or harmful data or code to or from the Figure Services; (vi) replicate significant portions of the Figure Services; (vii) access the Figure Services in order to build a competitive solution or to assist someone else to build a competitive solution; or (viii) otherwise use the Figure Services in violation of this Agreement or any use restrictions set forth in the applicable Order. The foregoing restrictions will apply to the maximum extent permitted by applicable law. 3.2         Compliance with Laws. Customer will, at all times comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to its use of the Figure Services and to Customer’s performance under this Agreement, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Figure controls and operates the Figure Services. 3.3         Customer Content Third-Party Services. Customer shall be solely responsible for the accuracy and legality of Customer Content, the means by which it acquires and uses such Customer Content (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Content necessary to permit Figure’s compliance with its obligations under this Agreement. 3.4         Third-Party Services. Customer shall be solely responsible for any acquisition, implementation, support, or maintenance of third-party products or services purchased by Customer that may interoperate with the Figure Services. 3.5         End Users. Customer shall be responsible for End Users’ compliance with the Agreement, Exhibits and Order(s) thereto.

4. PROPRIETARY RIGHTS; DATA

4.1         Ownership. Except for the limited rights granted in this Agreement: (i) Figure hereby retains all rights, title and interest, including all intellectual property rights, in and to the Figure Services and (ii) Customer hereby retains all rights, title and interest in Customer Content. Customer hereby grants to Figure a worldwide, irrevocable, perpetual, royalty-free license, with right of sublicense, (a) to exploit without restriction all feedback regarding Figure Services; (b) to use the Customer Content and log and other information related to Customer’s use of the Figure Services as part of and to improve Figure’s products and services; and (c) to use the Customer Content to perform its obligations hereunder.

5. FEES; PAYMENT

5.1         Fees. Customer will pay Figure the non-refundable and non-recoupable fees of the type, amount and payment schedule set forth on the applicable Order, as applicable, which may include without limitation subscription, support and other fees for the Figure Services (“Fees”). Such Fees are to be billed and shall be due and payable upon receipt of the invoice for such Fees. Interest accrues from the due date of the invoice at the lesser rate of 1.5% per month or the highest rate allowed by law. Upon any termination of the provision of Services under this Agreement before the end of any month, the Fees for a full month will be applicable. As set forth in Paragraph 6.2, Figure may terminate the Agreement for nonpayment of Fees that are owed to Figure.

5.2         Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Figure’s net income).

5.3         Renewal Fees. Figure reserves the right at any time to modify Fees for any renewal Term. Such modification shall be effective upon Figure providing the Customer with at least 45 days’ advance notice before the end of the current Term. Figure may modify Fees if, among other things, (i) the number of End Users has changed or (ii) in Figure’s reasonable opinion, the stage or profile of the Customer’s company requires a more comprehensive 409A valuation.

6. TERM; TERMINATION

6.1         Term. This Agreement will start on the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue until the last to expire or terminate Order. Each Order will start on the date such Order is executed by the parties and, unless terminated earlier in accordance with the terms of this Agreement, will continue until the expiration of the initial term specified in such Order (“Initial Term”). Each such Order will automatically renew for one-year renewal term(s) (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides written notice of non-renewal at least 30 days before the expiration of the then-applicable term.

6.2         Termination. Figure may terminate this Agreement or any Order by written notice if any of the following occurs: (i) Customer fails to pay within ten (10) business days after written notice of nonpayment any amounts owed Figure; (ii) except as set forth in (i), Customer is in material breach of this Agreement, which is not cured within thirty (30) days after written notice of such breach; (iii) Customer files for or is adjudicated bankrupt or suffers any other analogous event, or undergoes an appointment of receiver for all or a portion of Customer’s assets or any assignment for the benefit of creditors; or (iv) if Figure reasonably believes at any time during the Term that continued use of the Figure Services or the Figure Services hereunder violates (or may violate) any law or regulation applicable to either Party’s business. Within thirty (30) days of termination of this Agreement, upon Customer's request, provided Customer is not in breach of the Agreement including but not limited to payment obligations, Figure will make available to Customer a file of the Customer Content then in its possession. Customer agrees and acknowledges that, thirty (30) days following the effective termination date of this Agreement or if Customer's account is thirty (30) days or more past due, Figure will have no obligation to maintain or produce Customer Content under this Agreement, and may, in Figure’s sole discretion, delete or destroy all copies of Customer Content in the Figure Services or otherwise in Figure’s possession or control, unless legally prohibited.

6.3         Effect of Termination. Upon the effective date of expiration or termination of this Agreement and all outstanding Orders for any reason: (i) Customer’s access to Figure Services will automatically terminate; and (ii) all outstanding payment obligations of Customer incurred by Customer prior to the effective date of termination or expiration will remain due and payable in accordance with the terms hereof. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 3.1 (Restrictions on Use of Figure Services), 4.1 (Ownership), 6.3 (Effect of Termination), 7 (Confidentiality), 8 (Indemnification), 9 (Warranties; Limitation of Liability), and 10 (General Provisions).

7. CONFIDENTIALITY

7.1         Definition. “Confidential Information” means any information disclosed directly or indirectly by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent it is required to do so by law; provided, however, that, prior to any disclosure of the Disclosing Party’s Confidential Information as required by law, the Receiving Party will (i) notify the Disclosing Party of all, if any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated; (ii) cooperate with the Disclosing Party’s reasonable, lawful efforts to resist, limit or delay any such disclosure.

7.2         Use; Maintenance. Neither Party will use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party will authorize the disclosure, either directly or indirectly, of any Confidential Information of the other Party, except to officers, directors, agents, employees or other representatives of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment.

8. INDEMNIFICATION

8.1         By Figure. Figure will (i) defend, or at its option settle, any third party claim, proceeding, or suit brought against Customer to the extent it alleges that Customer’s use of the Figure Services as authorized in this Agreement constitutes a direct infringement of any intellectual property rights of any third party, and (ii) pay, subject to the limitations set forth in Section 9.3, damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Figure; provided that Customer provides Figure: (x) prompt written notice of; (y) sole control over the defense and settlement of; and (z) all information and assistance reasonably requested by Figure in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, Figure may, at its sole option and expense: (a) procure for Customer the right to continue to use the Figure Services; (b) modify the Figure Services to make them non-infringing; (c) replace the Figure Services with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro-rata portion of the Fees already paid but unused. Notwithstanding the foregoing, Figure will have no liability to Customer for any claim arising out of or based upon: (1) Figure’s use of Customer Content as permitted by this Agreement; (2) the use of the Figure Services in combination with software, products or services not provided by Figure; or (3) Customer’s failure to use the Figure Services in accordance with this Agreement (“Excluded Claims”).

8.2         Disclaimer. SECTION 8.1 STATES THE ENTIRE LIABILITY OF FIGURE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY FIGURE OR ITS SERVICES OR TECHNOLOGY OR ANY PART THEREOF.

8.3         By Customer. Customer will indemnify, defend and hold harmless Figure for any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses, including reasonable attorneys’ fees, arising from any third party claim, proceeding, or suit brought against Figure or its suppliers related to (i) any Excluded Claim, including without limitation any claim that Customer Content infringes third party proprietary rights, or (ii) Customer’s breach of its representations, warranties, or covenants hereunder. Customer will pay damages finally awarded against Figure (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer; provided that Figure provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Figure will have the right to participate in the defense of any such claim at its own expense and with counsel of its own choosing.

9. WARRANTIES; LIMITATION OF LIABILITY

9.1         Mutual Warranties. Each Party represents and warrants to the other that: (i) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses set forth herein, and to perform its obligations hereunder; (ii) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (iii) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.

9.2         Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, FIGURE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. FIGURE DOES NOT WARRANT THAT THE FIGURE SERVICES, CONTENT OR FUNCTIONALITY WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA. FIGURE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE.

9.3         Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, SPECULATIVE, CONTINGENT, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.3, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.

9.4         Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FIGURE TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

10. GENERAL PROVISIONS

10.1         Assignment. Neither Party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that Figure may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets or business related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

10.2         Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, epidemic or viral outbreak, labor shortage or dispute, or governmental act or failure of the Internet(“Force Majeure”). The delayed Party will give the other Party prompt notice of such Force Majeure and will use its reasonable commercial efforts to correct such failure or delay in performance.

10.3         Governing Law. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the Parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.

10.4      Miscellaneous.

10.4.1. This Agreement (together with all Orders and Exhibits hereto) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence will apply: this Agreement, Exhibits, Order. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Figure to object to such terms. Any ambiguity in this Agreement will be interpreted equitably without regard to which Party drafted hereof.

10.4.2. This Agreement may only be amended by a writing signed by both Parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement.

10.4.3. Any required notice will be given in writing by customary means with receipt confirmed at the address of each Party set forth below, or to such other address as either Party may substitute by written notice to the other in accordance with this Section 10.4. Notices will be deemed to have been given at the time of actual delivery in person or by email, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the mail.

10.4.4. The relationship between the Parties will be that of independent contractors. Figure may use subcontractors.

10.4.5. Waiver of any term of this Agreement or failure to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.

10.4.6. Any provision found to be unlawful, unenforceable or void will be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.

10.4.7. Customer agrees to comply with all applicable export control laws and regulations related to its use of the Figure Services.

10.4.8. Figure may list Customer as a customer in its promotional and marketing materials, including its website. Figure may collect, use and disclose data derived from Customer’s use of the Figure Services, including Customer Content, for analysis, benchmarking, analytics, marketing, and other business purposes, provided that such data shall be made available only on an anonymous or aggregated basis and that neither Customer’s identity nor the identity of any persons associated with Customer or End User(s) is made available or publicly disclosed.