SMART KX™ SAAS TERMS AND CONDITIONS

1.  SERVICES AND LICENSE GRANT

1.1 Subject to and conditioned on Firm’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and the Service Level Terms attached hereto as Exhibit A, Company hereby grants Firm a non-exclusive, non-transferable right to access and use the Services (as defined below) during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. on an unlimited number of computers (both in-office and off-site) in accordance with the terms and conditions herein. Such use is limited to Firm’s internal use. Company shall provide to Firm the Access Credentials within a reasonable time following the Effective Date and at the clients request thereafter.  “Authorized User” means Customer’s monthly active users, including Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.

1.2  “Services” means the software-as-a-service offering described in the Order Form for payment setup that accompany the use of the Product. “Product” means Company APP software, comprised of (i) access to Company’s internet-based software named Company APP, (ii) Company’s computer software designed to create the required interface between Firm’s computer systems and Company APP, and (iii) access to Smartkx.io contract deployment and fee calculation functionality. The term “Product” shall include all updates, upgrades or modifications of the current Product and support services documentation and specifications but shall not include any version of the Product that includes new features or capabilities that Company, in its sole discretion, deems constitute a separate product because of differences in function or features.

1.3  Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the Product, or third-party materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Product, or third-party materials are and will remain with Company and the respective rights holders.

1.4  Company reserves the right, in its sole discretion, to make any reasonable changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company’s services to its Firms; (ii) the competitive strength of or market for Company’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided, however, any changes shall not materially diminish the features or functionality of the Services.

1.5   Company may, directly or indirectly, suspend, terminate, or otherwise deny Firm’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Firm or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Firm or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.3 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement.

1.6  Company may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”). Company shall (i) ensure that all Subcontractors comply with all provisions of this Agreement as if such Subcontractors were Company, and (ii) be responsible for all of the acts and omissions of such Subcontractors to the same extent as if they were acts and omissions of Company.

1.7  The Services and use of the Product include Company’s standard Firm support services as amended from time to time.

1.8  Firm may possess pre-existing data which is of use to or may be optimized by the Product. Firm may request Company to convert such data into a format compatible with the Product, and to the extent possible, Company will convert pre-existing data into data compatible with Product and import that data into the Product (a “Data Conversion”), for a fee (the “Data Conversion Fee”), provided that said data conversion can be completed in no more than five (5) hours of labor. If the time required to convert Firm Data exceeds five (5) hours, then the Data Conversion will instead be treated as a Firm Paid Enhancement (as defined below). If Firm requests Company to perform a Data Conversion, Firm hereby agrees to pay the Data Conversion Fee.

1.9  From time to time, Firm may request modifications to the Product that would be of specific use to Firm (“Firm Paid Enhancements”). Firm Paid Enhancements to the software. Firm Paid Enhancement requests must be in writing and Company will provide estimated costs, delivery timelines, and statements of work or Company may refuse the requested Firm Paid Enhancement at its sole discretion. Any Firm Paid Enhancement provided by Company for the Product shall be considered part of the Product and subject to the terms and conditions of this Agreement, with all intellectual property ownership and related rights retained by Company.

2.  RESTRICTIONS OF USE

2.1  Firm will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.

2.2  Firm may not remove or export from the United States or allow the export or re-export of the Services, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

3.  FIRM RESPONSIBILITIES

3.1  Firm understands and acknowledges that Firm is solely responsible for its billing and accounting system, contracts between the Firm and the Firm’s clients, the contracts’ legality and enforcement, fee calculation and accuracy, and any and all filings, representations and interactions with any regulatory agency. Firm will make all efforts to comply with securities laws and regulations.

3.2  Firm represents, covenants, and warrants that Firm will use the Services only in compliance with all applicable laws and regulations.  Although Company has no obligation to monitor Firm’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.3  Other than hardware ordered by the Firm and provided pursuant to the order, Firm shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Firm shall also be responsible for maintaining the security of the Equipment, Firm account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Firm account or the Equipment with or without Firm’s knowledge or consent; provided, however, Firm will not be responsible for uses of Firm’s account after Firm has notified Company of a security incident with respect to such account or a particular password.

3.4  Firm shall at all times during the Term: (a) set up, maintain, and operate in good repair all Firm Systems (as defined below) on or through which the Services are accessed or used; (b) provide Company with such access to Firm’s premises and Firm Systems as is necessary for Company to perform the Services; and (c) provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this Agreement.

3.5  Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Firm’s delay in performing, or failure to perform, any of its obligations under this Agreement.

3.6  If Firm becomes aware of any actual or threatened activity prohibited by Section 2.1, Firm shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Company of any such actual or threatened activity.

4. SECURITY

4.1  Company employs commercially reasonable efforts customary to the applicable industry standards to protect and secure all Firm Data. Company agrees to (a) maintain customary and reasonable safeguards and controls against the destruction, loss, or alteration of Firm Data; and (b) maintain customary and reasonable safeguards against unauthorized access to the Services, the Product, and Firm Data.Firm has and will retain sole responsibility for: (a) all Firm Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Firm or any Authorized User in connection with the Services; (c) Firm’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Firm or through the use of third-party services (”Firm Systems”); (d) the security and use of Firm’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Firm Systems or its or its Authorized Users’ access credentials, with or without Firm’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

4.2  Firm shall employ all commercially reasonable physical, administrative, and technical controls, screening, and security procedures and other safeguards designed to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Firm Data, including the uploading or other provision of Firm Data for processing by the Services.

4.3  The Services do not replace the need for Firm to maintain regular data backups or redundant data archives. COMPANY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF FIRM DATA.

5. CONFIDENTIALITY; PROPRIETARY RIGHTS

5.1  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, pricing information, compensation information, know-how, compilations, processes, data protection, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Firm includes non-public data provided by Firm to Company to enable the provision of the Services (“Firm Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge (except in performance of the Services or as otherwise permitted herein) to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

5.2  Firm shall own all right, title and interest in and to the Firm Data.  Firm hereby permits Company such limited rights and permissions in or relating to Firm Data as are necessary to Company to enforce this Agreement and exercise Company’s rights and perform Company’s obligations hereunder.

5.3  Company, or its third-party licensors, shall own and retain all right, title and interest in and to (a) the Services and software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.     Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Services whether expressly, by implication, estoppel, or otherwise.

5.4  Firm acknowledges that in order for Company to perform the Services, Company integrates with third-party hardware and software selected by Firm (“Third-Party Technology“).  If requested by Firm, Company may resell to you Third Party Technology. Company does not share personally identifiable data with such Third-Party Technology providers and all such data transfers with Third Party Technology providers shall only include non-personally identifiable data.  The terms and conditions governing the use of any such Third-Party Technology will be the terms of the shrink-wrap, click-wrap, or other third-party license included with such products. Company will pass through to Firm any warranties Company receives from the supplier of such Third-Party Technology, and to the extent such pass through is not allowed by the supplier, Company will facilitate the filing of a warranty claim for any defective Third-Party Technology.

5.5  Notwithstanding anything to the contrary, Company, and its Subcontractors, shall have the right collect and analyze data and other information relating to and solely for the purpose of the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Firm Data and data derived therefrom such as usage reports and user statistics (“Resultant Data”)), and Company will be free (during and after the term hereof) to (i) use Resultant Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose Resultant Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5.6  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall promptly 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. Any such disclosure will be to the minimum extent legally required. Moreover, Firm shall immediately notify the Company in the event that Firm becomes aware that any Firm Data is or is likely to become subject to any claim, suit or proceeding by a third party alleging breach or misappropriation of a confidentiality or proprietary right by such third party.

6.  PAYMENT OF FEES

6.1  Firm will pay Company the then applicable fees described in the Order Form for the Services, including all training, support, and implementation fees, in accordance with the terms herein (the “Fees”).  If Firm’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Firm shall be billed for such usage and Firm agrees to pay the additional fees in the manner provided herein.  Company reserves the right to increase the Fees by 3% or by the aggregate change in the Consumer Price Index and to institute new charges and Fees at the end of the Term upon thirty (30) days prior notice to Firm (which may be sent by email). If Firm believes that Company has billed Firm incorrectly, Firm must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s Firm support department.

6.2  Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given period must be received by Company prior to the following period’s services are rendered.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Firm shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

7.  TERM AND TERMINATION

7.1  Subject to earlier termination as provided below, this Agreement begins as of the Effective Date and continues for one (1) year unless otherwise noted in the Order Form (the “Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

7.2  In addition to any other remedies it may have, including Company’s right to terminate or suspend under Section 7.5, either party may also terminate this Agreement upon (i) written notice, if the other party materially breaches any of the terms or conditions of this Agreement and such breach (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching Party with written notice of such breach, or (ii) effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  Firm will pay in full for the Services provided up to and including the last day on which the Services are provided. Upon any termination or expiration, all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate and Company will make all Firm Data available to Firm for electronic retrieval for a period of thirty (30) days. Thereafter Company shall, unless retention is otherwise required by law, delete stored Firm Data.

7.3  Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Company may retain Firm Data; (iii) Firm may retain Company materials, in the case of each of subclause (i), (ii), and (iii) in its then current state and solely to the extent and for so long as required by applicable law; (iv) Company may also retain Firm Data in its backups, archives, and disaster recovery systems until such Firm Data is deleted in the ordinary course; and (v) all information and materials described in this Section 7.3 will remain subject to all confidentiality, security, and other applicable requirements of this Agreement

7.4  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7.5  Company may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Firm’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or the Product, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Firm or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services or Product beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the specifications; (ii) Firm or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 7.5 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement.

8.  REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

8.1  Company acts a contract host and a calculation facilitator using Firm Data. Company relies on Firm Data provided to Company by Firm or Firm’s authorized third-party data provider. Company does not authenticate nor guarantee the accuracy if any such data and hereby disclaims any liability related to Firm Data. Company does not guarantee the accuracy, integrity, quality or appropriateness of any Firm Data transmitted to or through the Services. All Firm Data is the sole responsibility of the Firm and Company does not control Firm Data. Company relies on Firm Data to facilitate Services but does not supply supplemental data to Firm Data for the Services. Company has no obligation to screen, preview, monitor, or approve any Firm Data. Under no circumstances will Company be liable in any way for any Firm Data and Firm acknowledges and agrees that it bears all risks associated with the use of any Firm Data. Company does not offer, and this Agreement does not provide for, legal advice or services relating to contract drafting or serving as legal counsel for Firm or its affiliates. Company does not act as Firm’s agent to the Securities Exchange Commission.

8.2  Each party represents and warrants to the other party that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii)  the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv)  when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

8.3  Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8.4  Firm represents, warrants, and covenants to Company that: (i) Firm owns or otherwise has and will have the necessary rights and consents in and relating to the Firm Data so that, as received by Company and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law; (ii) Firm’s performance of its responsibilities under this Agreement and the use of the Services by its Authorized Users will not breach any agreement or any other obligation that Firm or its Authorized Users may have with a third party; and (iii) Firm’s performance of its responsibilities under this Agreement and the use of the Services by its Authorized Users hereunder does not and will not breach any agreement by Firm or its Authorized Users to keep in confidence any proprietary information or trade secrets acquired by the Firm or its Authorized Users from a third party, and neither Firm nor its Authorized Users will disclose to the Company, or induce the Company to use, any confidential or proprietary information or material belonging to a third party.

9.  INDEMNITY

9.1  Company shall indemnify, defend and hold Firm harmless from all claims, costs (including reasonable attorneys’ fees) and liabilities arising out of liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Firm specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Firm continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Firm’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Firm a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Firm’s rights hereunder and provide Firm a refund of any prepaid, unused fees for the Service.

9.2  Firm shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee”) from and against any and all losses incurred by such Company Indemnitee resulting from any action by a third party, including but not limited to reasonable costs and attorneys’ fees incurred by Company in connection with responding to such claims, that arise out of or result from, or are alleged to arise out of or result from: (i)  Firm Data, including any processing of Firm Data by or on behalf of Company in accordance with this Agreement; (ii) any other materials or information provided by or on behalf of Firm or any Authorized User, including Company’s compliance with any specifications or directions provided by or on behalf of Firm or any Authorized User to the extent prepared without any contribution by Company; (iii) allegation of facts that, if true, would constitute Firm’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (iv) any breach by Firm or its Authorized Users of its confidentiality obligations under this Agreement or under any agreement or other obligation that Firm or its Authorized Users, as applicable, may have with a third party.

9.3  Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or 8.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at Indemnitor’s sole cost and expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If Indemnitor fails or refuses to assume control of the defense of such Action, Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such action after giving notice to Indemnitor, in each case in such manner and on such terms as Indemnitee may deem appropriate. Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve Indemnitor of its obligations under this Section 8, except to the extent that Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

10.  LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND WITH THE EXCEPTION OFCOMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,  COMPANY AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY FIRM TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.  PUBLICITY

Each party hereby grants to the other party a limited, revocable license to use the party’s name and related indicia in the other party’s lists of current or former Firms or vendors in promotional and marketing materials. This provision shall survive termination or expiration of this Agreement. Company may request and if so, Firm shall provide a 1-2 paragraph quote regarding Firm’s use of the Product, picture and any associated company marks (together being the “Testimonial”) for Company’s marketing and promotional purposes. Firm grants to Company the non-exclusive and unrestricted right to use Testimonial  solely for Company’s advertising, website content, social media and other promotional materials. Firm acknowledges and agrees that no compensation, monetary or otherwise will be provided by the Company for use of the Testimonial and Firm releases Company from all claims, liability and causes of action arising out of or in connection with use of the Testimonial.

12.  MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is not assignable, transferable or sublicensable by Firm except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Firm does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions.

EXHIBIT A

Service Level Terms

The Services shall have a level of 99.5% availability, measured monthly, excluding holidays, weekends, and scheduled maintenance.  Company will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services or Product between the hours of (12:00) a.m. and (6:00) a.m. Central Time; and (b) give Firm at least 24 hours prior notice of all scheduled outages of the Services or Product. Firm’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than two hours, Company will credit Firm 5% of the monthly fees for each period of 60 or more consecutive minutes of downtime.  Downtime shall begin to accrue as soon as Firm (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored.  In order to receive downtime credit, Firm must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.  Company will only apply a credit to the month in which the incident occurred.  Company’s blocking of data communications or other Service in accordance with its response to violations of any agreements between Firm and Company shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.

No period of service degradation or inoperability will be included in calculating availability percentage due to the extent that such downtime or degradation is due to any of the following (“Exceptions”): (i)  Firm requests maintenance and such maintenance affects uptime or downtime; (ii) Firm’s or any of its Authorized Users’ misuse of the Services; (iii)  failures of Firm’s or any of its Authorized Users’ internet connectivity; (iv)  internet or other network traffic problems other than problems arising in or from networks actually controlled by Company; or (v) Firm’s or any of its Authorized Users’ failure to meet any minimum hardware or software requirements.

4/16/24