TERMS AND CONDITIONS: PRODUCT & SERVICE AGREEMENT

1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement:

1. 1. “Authorized Users” means any company or individual who uses the System or Communication Services on Customer’s behalf or through Customer’s account or passwords, including without limitation Customer’s Clients, and their employees and representatives, each of which has been authorized to access and use the System by Customer and identified to Vendor, as required in this Agreement. Any improper use of the System or Communication Services by Authorized Users will be sole responsibility of the Customer.

1. 2. “Casual Services” means those services that are not Managed Services, Cloud Services, or Project Services and are provided in response to requests from Customer’s authorized representative(s) for which: a) the scope has been estimated by Vendor to be less than eight (8) hours, but not limited to eight (8) hours; b) the requirements are, in Vendor’s sole opinion, well and clearly defined; and c) no project plan or functional specification is deemed necessary by Vendor. Casual Services are performed by Vendor on a time and materials basis in accordance with Vendor’s hourly rates for staff in effect at that time. Examples of Casual Services may include requests for telephone support or on-site consulting services less than one day in duration. It is Customer’s responsibility to specify and communicate to Vendor the identity of Customer’s authorized representative(s).

1. 3. “Cloud Components” means such elements of the System as hosted on the infrastructure pursuant to this Agreement.

1. 4. “Cloud Services” means those cloud services provided by or that may be provided by Vendor or any of Vendor’s providers, partners, affiliates, or any other person or entity used by Vendor (collectively, “Vendor Provider”). Use of Vendor’s infrastructure and/or services provided by Vendor or any Vendor Provider, constitutes acceptance and warrants Customer’s compliance with the terms and conditions set forth herein and as may be modified or updated from time to time on Vendor’s website. Under these terms, Customer’s access of Vendor’s network is an acknowledgement that Customer has read and understood the terms, and that Customer agrees to be bound by such terms and conditions. If Customer does not wish to be bound by such terms and conditions, Customer should not proceed to place any information of any kind on Vendor’s networks, in any way, including but not limited to transferring files, synchronizing email, or making configuration changes via Vendor’s control panel.

1. 5. “Communication Services” means those communication services, including but not limited to voice over IP (“VOIP”), Internet, or chat services provided by Vendor either directly or ancillary to the sale of Products as hereinafter defined.

1. 6. “Customer’s Clients” means any of Customer’s clients or customers or other third parties Customer gives access to the System, including without limitation such companies’ employees and representatives.

1. 7. “Customer Data” means data in electronic form managed or stored by the System that belong to or are owned by Customer, including without limitation data related to Customer’s Clients, other Authorized Users, and Customer’s Clients’ own customers. Customer Data shall include any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Customer or any Authorized User or Customer’s Clients or for Processing by or through the System, or (b) collected, downloaded or otherwise received by Vendor or the System for Customer or any Authorized User or Customer’s Clients pursuant to this Agreement or at the written request or instruction of Customer or such Authorized User or Customer’s Clients. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Customer Data are themselves also Customer Data. The Customer is the owner of all Customer Data.

1. 8. “Customer’s Software” means software provided by the Customer, for which the Customer paid a valid vendor license, which shall be installed by Vendor, fully functioning and accessible on the Cloud Components.

1. 9. “Documentation” means Vendor’s standard manual prepared for customers related to use of the System.

1. 10. “Licensed Software” means such elements of the System provided by the Vendor.

1. 11. “Managed Services” means a predefined, proposed and agreed to set of IT services provided by the Vendor and billed to the Customer on a flat-rate, monthly basis.

1. 12. “Privacy Policy” means Vendor’s privacy policy, as set forth in its website, at https://www.virtuworks.com/privacy-policy/ pertaining to each Service or sale of Products, which may be amended from time to time.

1. 13. “Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (c) block, erase or destroy. “Processing” and “Processed” have correlative meanings.

1. 14. “Product(s)” means those goods, including but not limited to computers, phones, and all manner of electronics that Customer may order from Vendor (including any equipment purchased for Communication Services), and, if such order is accepted by Vendor, Customer shall purchase from Vendor, from time to time.

1. 15. “Project Services” means those services that will be provided in accordance with separate statements of work (“Statement of Work”) signed by both Vendor and Customer. A Statement of Work will not be effective unless signed by both Vendor and Customer. Examples of Project Services may include services in connection with pre-implementation plans, implementation services, training, custom modifications, software development, and technical reviews. It is understood, that unless expressly provided for in the Statement of Work, all right, title and interest to any intellectual property created or generated by the Vendor in or by providing Project Services, inclusive of any and all software, belongs exclusively to the Vendor. Each Statement of Work will include the following:

• A description of the Project Services to be provided and specifications for any deliverables, if applicable for the project.
• The fees for the Project Services1. 16. “Services” means individually or collectively Cloud Services, Communication Services, Casual Services, Managed Services, and/or Project Services, as each is defined herein.

1. 17. “SLA” means Vendor’s standard service level agreement for Managed Services and/or Cloud Services attached as Attachment A-1 and A-2, respectively.

1. 18. “System” means that collective hardware and software components, including inter alia, any third-party hardware and software components, that makeup the Customer’s cloud account as hosted on Vendor’s infrastructure and accessed remotely, via the Cloud.

2. DESCRIPTION OF SERVICES.

2. 1. Use of the System and Services. Provided Customer is in compliance with the terms and conditions defined herein, Customer shall be permitted to access and use the Cloud Components and Services provided by the Vendor’s IT infrastructure. Vendor will use reasonable efforts to provide Customer with all hardware resources, software, features and functions proposed and agreed upon between the two Parties.

2. 2. Service Levels. Vendor shall provide the service levels and remedies listed in the SLA for any failure of the System listed in the SLA.

2. 3. Documentation. Customer may reproduce and use the Documentation during the term of this Agreement solely as necessary to support Authorized Users’ use of the System.

2. 4. System and Services Revisions. Vendor may revise the SLA or the features and functions of the Cloud Components or Services (such as infrastructure, security, technical configurations, application features, etc.) at any time, provided no such revision materially reduces features or functionality provided pursuant to this Agreement. In the event that Vendor makes any revisions to the SLA or the features and functions of the Cloud Components that, in Vendor’s sole opinion, materially reduces features or functionality provided pursuant to this Agreement, it will use reasonable efforts to provide notice to the Customer if reasonably feasible. Notwithstanding the foregoing, Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the SLA, Cloud Components, or Services. Except for emergency or security-related maintenance activities, Vendor will use reasonable efforts to coordinate with Customer the scheduling of application of Patches, when reasonable and possible.

2. 5. Customer’s Clients. Customer may authorize Customer Clients to access and use the System in such numbers and according to such restrictions as are set forth in this Agreement. Customer shall provide complete name and contact information for each proposed Customer Client upon or before providing such access, and update such information as soon as it becomes aware of a change.

2. 6. License. Vendor hereby grants Customer a nonexclusive license to reproduce and use the Licensed Software, in such quantities as proposed and agreed to by the Parties, as necessary for Customer’s internal business purposes and solely as a component of the System.

2. 7. Provision of Managed Services. Vendor shall provide the Managed Services, and Customer shall provide any assistance and cooperation necessary or required to facilitate the Managed Services.

2. 8. Provision of Cloud Services. Vendor shall provide Cloud Services and Customer shall provide any such assistance and cooperation necessary or required as set forth below and otherwise to facilitate the Cloud Services.

2. 9. Provision of Communication Services. Vendor shall provide Communication Services and Customer shall provide any such assistance and cooperation necessary or required as set forth below and otherwise to facilitate the Communication Services.

2. 10. Provision of Project Services. Vendor shall provide the Project Services and Customer shall provide any such assistance and cooperation necessary or required as set forth below and otherwise to facilitate the Project Services.

2. 11. Provision of Casual Services. Vendor shall provide the Causal Services and Customer shall provide any such assistance and cooperation necessary or required as set forth below and otherwise to facilitate the Causal Services.

2. 12. Service Requests. Should Customer experience any issues or problems with the Services, Customer shall follow the process as established by Vendor, which includes making a service request with Vendor. The agreed upon uptime and downtime of the Cloud Services provided shall be as provided in Attachment A-1. The level of service request and response time for resolving such service request as it relates to Managed Services shall be as provided in Attachment A-2.

2. 13. Scheduled Downtime. Vendor shall notify Customer at least 24 hours in advance of all scheduled outages of the System in whole or in part (“Scheduled Downtime”). All such scheduled outages shall last no longer than four hours.

2. 14. System Support. Vendor shall continuously monitor, maintain, upgrade, and manage the System to ensure it meets or exceeds SLA requirements. Vendor shall monitor and respond to System malfunction or performance degradation, proactively identify and remedy deficiencies and provide Customer notice of problems together with Vendor’s corrective plan or action and inform what steps will be taken to avoid recurring problems.

3. TERMS OF CLOUD SERVICES.

3. 1. Use of Cloud Services. Customer is responsible for identifying and authenticating all Authorized Users for approving access by such Authorized Users, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Customer and Customer’s users’ usernames, passwords and accounts with Vendor, Customer accepts responsibility for the confidentiality and timely and proper termination of user records in Customer’s local (intranet) identity infrastructure or on Customer’s local computers. Vendor is not responsible for any harm caused by Customer’s users, including individuals who were not authorized to have access to Cloud Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Customer’s local identity management infrastructure or Customer’s local computers. Customer is responsible for all activities that occur under Customer and Customer’s users’ usernames, passwords or accounts or resulting from Customer or Customer’s users’ access to Could Services and agree to notify Vendor immediately of any unauthorized use. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing Could Services.

3. 2. Authorized User Conduct. Cloud Services and the System may only be used for lawful purposes. Any use of Cloud Services or any use of the System which violates any local, state, federal, or international laws which may apply to Vendor, Customer’s local jurisdiction, or any jurisdiction that Customer may be subject to is strictly prohibited. While using the System, Customer and its Authorized Users may not: a) Restrict or inhibit any other user from using and enjoying the Internet; b) Post or transmit any unlawful, threatening, abusive, libelous, defamatory, false, harassing or obscene, or otherwise objectionable information of any kind including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws; c) Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component; (d) violate privacy rights or promote bigotry, racism, hatred or harm, (e) constitute unsolicited bulk e-mail, “junk mail,” “spam” or chain letters; or f) Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the Services for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material). In addition to any other rights afforded to Vendor under this Agreement, Vendor reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Vendor shall have no liability to Customer in the event that Vendor takes such action. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer’s content and applications. Customer agrees to defend and indemnify Vendor against any claim arising out of a violation of Customer’s obligations under this section.

3. 3. Indemnification. Customer agrees to indemnify, defend, and hold harmless Vendor from any and all liability, penalties, losses, damages, costs, expenses, attorneys’ fees, causes of action or claims caused by or resulting indirectly from Customer and its Authorized Users’ use of the Cloud Services which damages either Customer, Authorized Users, Vendor, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with Customer’s System, including but not limited to domain name selection and Web site content.

3. 4. ECPA Notice. Vendor reserves the right to monitor any and all communications through or with Vendor’s infrastructure. Customer agrees that as to Vendor’s provision of Services, there is no expectation of privacy, and the System is not considered a “secure communications medium” or “protected computer” for the purposes of the Electronic Communications Privacy Act (“ECPA”) or any other similar or related federal or state law.

3. 5. No Interference with Operation of System. Customer agrees not to maliciously or intentionally interfere with the proper operation of the System including but not limited to defeating identification procedures, obtaining access beyond that which Customer is authorized for, and impairing the availability, reliability, or quality of Cloud Services for other customers. Customer further agrees not to interfere with the proper operation of other systems reachable through the Internet including any attempt at unauthorized access. Customer agrees to follow the acceptable use policy of any network or service Customer connects to. Customer agrees to adhere to system policies as published online by Vendor, including restrictions on Cloud Services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at Vendor. Customer agrees to abide by any and all future Vendor policy decisions.

3. 6. Backup of Data. Except as may be otherwise provided in a Managed Services agreement, Customer’s use of the Cloud Services is at its sole risk. While Vendor may backup its system (which may include Customer Data) from time to time, Vendor is not responsible nor has any liability for Customer Data. Customer agrees to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Vendor’s infrastructure. Vendor does not warrant or provide a guarantee : a) against problems caused by Customer’s use of the Cloud Service with any third-party software, misuse, improper testing, unauthorized attempts to repair, modifications or customizations to the Cloud Service by Customer or any other cause beyond the range of the intended use of the Cloud Service; b) against any malware, data breach, data loss, virus, hacking, unauthorized data exfiltration, system or data rendered inaccessible through corruption or malicious act or c) that the Cloud Service will achieve Customer’s intended results, nor that the Cloud Service has been developed to meet Customer’s individual requirements.

3. 7. Transmittal of Materials. Customer agrees not to transmit unsolicited or prohibited advertisement or other harassing or illegal materials through electronic mail, Usenet postings or other internet media. The use of Vendor or any other service with reference to Cloud Services obtained through Vendor, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as “spamming” is strictly prohibited and may cause Customer’s Cloud Services to be terminated immediately and without warning and Customer will be held fully responsible for any damages to Customer, Vendor, or any other party or parties resulting from any such conduct.

3. 8. Audit. Vendor may audit Customer’s use of Cloud Services (e.g., through use of software tools) to assess whether your use of Cloud Services is in accordance with your purchase order and the terms of this Agreement. Customer agrees to cooperate with Vendor’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within thirty (30) days of written notification any fees applicable to your use of Cloud Services exceeding your rights. If Customer does not pay, Vendor can end the Cloud Services. Customer agrees that Vendor shall not be responsible for any of Customer’s costs incurred in cooperating with the audit.

4. TERMS OF COMMUNICATION SERVICES.

4. 1. Communication Services. The Communication Services include VOIP and other internet-based communications as described below. The Communication Services are provided at the agreed upon rate set forth in a separate invoice or schedule.

4. 2. Emergency Services. The Communication Services provided by Vendor supports access to internet-based 911 emergency services (“E-911”). E-911 is different than traditional 911 service and is generally referred to as enhanced 911 or E-911. E-911 service is subject to availability within an Authorized User’s calling jurisdiction. With E-911 service, when an Authorized User dials 911, the telephone number and the service address registered with the Vendor are simultaneously sent to the local emergency center assigned to the Authorized Users location. Customers in locations where the emergency center is not equipped to receive, capture, or retain an Authorized User telephone number and address have basic 911 or limited E-911. In addition, if an Authorized User dials 911 before that Authorized User’s registered location has been entered in the emergency operator’s database, that call will be routed to a national emergency call center. Furthermore, the emergency call-back number provided to each Authorized Users local emergency center will be designated by the Customer as described below. With basic 911 or limited E-911, the local emergency operator answering an Authorized User call may not have the Authorized User call-back number or exact location, so that the Authorized User must be prepared to give this information. Until an Authorized User gives the operator his or her phone number, that operator may not be able to return the Authorized User call if the call is dropped or disconnected, or if the Authorized User is unable to speak. Certain Customers may have Authorized Users that do not have access to either basic 911 or E-911. If an Authorized User does not have access to basic 911 or E-911, that person’s 911 call will be sent to a national emergency call center. A trained agent at the emergency call center will ask for the name, telephone number, and location of the Authorized User calling 911, and will contact the local emergency center for such customer in order to send help. Examples of situations where 911 calls will be sent to the national emergency call center include when there is a problem validating an Authorized Users address or the customer is located in an area that is not covered by the landline 911 network. Emergency personnel do not receive an Authorized User’s phone number or physical location when that person’s E-911 call is routed to the national emergency call center. The Customer authorizes Vendor to disclose an Authorized Person name and address to third-parties involved with providing E-911 emergency services to Authorized Persons, including but, not limited to, call routers, call centers, and local emergency centers.

4. 3. Reduced Speed for Routing or Answering E-911 Calls. There can be a greater possibility of network congestion and/or reduced speed in the routing of E-911 as compared to traditional 911 dialing over traditional public telephone networks.

4. 4. Registration of Authorized Person Physical Location Required. For each phone line or user account that you utilize with the Communication Services, a Customer must register with the Vendor the physical location associated with each Authorized Person designated phone line or user account be it attendant or associated with any Products for Communication Services purchased from the Vendor or otherwise. The Customer’s failure to do so may result in the suspension or termination of the Communication Services. Unless instructed otherwise or notified by the Customer, all of the Authorized Users will be registered to the Customer’s official designated physical office address where the Customer receives delivery of any communication Products or the address that Vendors has registered as the Customer’s physical address. It is incumbent on the Customer to register with Vendor each physical location for each respective Authorized User that is not encompassed or included within the phone numbers of accounts that are registered too the Customer’s initial registered office address. The Customer understands and agrees that the Customer is responsible to (i) confirm the accuracy of the physical address for each Authorize User account, (ii) instruct each Authorize User to notify the Customer each time an Authorized User changes location and (iii) to make any changes or additions needed for each Authorize User account such that such Authorize User’s physical location corresponds to the registered address that the Vendor has for that designated communication Product, account or phone number. The Customer understands that the failure to update and notify the Vendor of a change in the physical location of any Authorized Users’ communication Product or otherwise may cause that the emergency services triggered as the result of a E-911 call by such an Authorized Person to be routed to an emergency center near the old address and may result in help being sent to the wrong location. In addition, the Customer acknowledges that emergency service personnel may call back to the main office number or another number at the same location which the Customer has designated as the contact number in case of emergency, instead of calling back directly to the number from which an Authorized Person emergency call was made. The Customer will be liable for any charges or fees incurred by Vendor which arise out of or relate to the Customers failure to provide Vendor with the then-current physical location of an Authorized Person’s communication Product and/or physical location of where each Authorized Person designated account is utilized from, as applicable. Should an Authorized Person choose to use Vendor’s Communication System from outside of the United States, that Authorized Person will not have access to emergency 911 calling.

4. 5. Customer to Notify All Authorized Users of E-911 Difference. Customer is responsible to inform all Authorized Users and other third persons who may be present at the physical location where an Authorized User utilizes the Communication Services of the important distinctions and limitations of E-911 as compared with traditional 911. The following are some examples of the limitations of E-911:

• Power and Broadband Outages: E-911 will not function in the event of a broadband, power or ISP service failure or disruption. If there is an interruption in the power supply, a power surge or a power failure, E-911 will not function until power is restored. A power failure, power surge or power disruption may require you to reset or reconfigure the communication Product prior to using the E-911, including to make emergency calls.
• Service Suspension or Termination by Vendor: Termination or temporary suspension of service by Vendor or Customer’s cancellation of service, will disable ALL Communication Services, including the ability to make Emergency E-911 calls.4. 6. Landline 911 Emergency Calling. If you have a landline connected to the Communication Services equipment, 911 will be directed through your local telephone service line provided by your local telephone service company. In such case, your 911 calls will be handled by your local telephone service company, not by Vendor.

4. 7. E-911 Disclaimer of Liability and Indemnification. VENDOR DOES NOT HAVE ANY CONTROL OVER WHETHER, OR THE MANNER IN WHICH, CALLS USING THE 911 OR E-911 DIALING SERVICES ARE ANSWERED OR ADDRESSED BY ANY EMERGENCY RESPONSE CENTER. VENDOR DISCLAIMS ALL RESPONSIBILITY FOR THE ABILITY OF ANY PRODUCT SOLD BY VENDOR TO CONNECT TO AN EMERGENCY RESPONSE CENTER, THE CONDUCT OF THE EMERGENCY RESPONSE CENTER AND THE NATIONAL EMERGENCY CALLING CENTER. VENDOR RELIES ON THIRD PARTIES TO ASSIST IT IN ROUTING 911 CALLS TO EMERGENCY RESPONSE CENTERS AND TO A NATIONAL EMERGENCY CALLING CENTER. VENDOR DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT. VENDOR DOES NOT HAVE ANY CONTROL FOR CUSTOMER’S INTERNET CONNECTION OR THE MOBILE TELEPHONE CARRIER SERVICES UTILIZED BY CUSTOMER NOR WHETHER CUSTOMER REGISTER ANY OF THE PRODUCT WITH THE PHYSICAL LOCATION OR, ENTER IN THE CORRECT INFORMATION WHILE PROGRAMMING ANY OF THE EQUIPMENT ONLINE, TESTED THE FUNCTION AND RANGE OF ANY OF THE PRODUCT AND THE VENDOR SERVICES, OR CHARGE THE PRODUCT, IF APPLICABLE. CUSTOMER FURTHER ACKNOWLEDGES THAT THE E-911 DIALING SERVICE WILL NOT FUNCTION IN THE EVENT OF (I) AN INTERNET SERVICE OUTAGE, (II) AN ELECTRICAL POWER FAILURE THAT EXCEEDS ANY BATTERY BACKUP CAPABILITY, (III) A TEMPORARY BLOCK OR SUSPENSION OF CUSTOMERS SERVICE OR (IV) A SERVICE OUTAGE FOR ANY OTHER REASON. VENDOR IS SOLELY RESPONSIBLE FOR ENSURING THAT THE CUSTOMERS USE OF THE PRODUCT AND SERVICE MEETS ANY APPLICABLE REGULATORY REQUIREMENTS, INCLUDING BUT NOT LIMITED TO THOSE APPLICABLE TO FIRE PANELS. NEITHER VENDOR NOR ITS OFFICERS OR EMPLOYEES MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO VENDOR’S 911 RELATED SERVICES. CUSTOMERS AGREES THAT IT WILL NOT RELY ON ANY VENDOR SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON THE VENDOR EQUIPMENT PURCHASED BY CUSTOMER ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM OR TRADITIONAL 911 SERVICE. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS VENDOR, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, AND ASSIGNS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER OR ANY OF CUSTOMERS AUTHORIZED USERS IN CONNECTION WITH THE PRODUCT OR SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) BY, OR ON BEHALF OF, CUSTOMER, ANY AUTHORIZED USER OR ANY THIRD PARTY RELATING TO THE ABSENCE, FAILURE, OR OUTAGE OF ANY PRODUCT (INCLUDING E-911 DIALING AND E-911 ALERTS AND, INCORRECTLY ROUTED E-911 DIALING CALLS AND INCORRECTLY ROUTED E-911 ALERT E-MAILS OR TEXT MESSAGES, INCORRECTLY ENTERED E-MAIL ADDRESSES OR MOBILE TELEPHONE NUMBERS FOR THE ALERT CONTACTS), FAILURE OF ANY EMERGENCY SERVICE PERSONNEL TO CALL BACK DIRECTLY TO THE NUMBER FROM WHICH AN E-911 CALL WAS MADE, AND/OR THE INABILITY OF ANY USER OF THE PRODUCT TO BE ABLE TO USE 911 OR E-911 DIALING, E-911 ALERTS, OR ACCESS OR RECEIVE CALLBACKS FROM EMERGENCY SERVICE PERSONNEL. CUSTOMER SHOULD HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES. IF CUSTOMER IS NOT COMFORTABLE WITH THE LIMITATIONS OF THE E-911 ALERT SERVICE, YOU SHOULD NOT ENABLE AND/OR USE THE FEATURE.

5. TERMS OF PRODUCT SALES.

5.1. Product Sales. At Customer’s request, Vendor may sell Products to Customer from time to time at agreed-upon prices as may be set forth in the purchase orders and/or invoices. Vendor makes no representations as to the availability of Products.

5.2. Return Policy. The sale of Products is on an as-is, final sale basis. Once a purchase order is accepted by Vendor, the Products are final sale and may not be returned to Vendor.

5.3. No Warranty. VENDOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION. NO ADVICE OR INFORMATION GIVEN BY VENDOR OR ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, EMPLOYEES OR CONTRACTORS SHALL CREATE ANY WARRANTY. THE LIABILITY OF VENDOR WITH RESPECT TO THE PRODUCTS (INCLUDING ANY DELAYS IN DELIVERY OF THE PRODUCTS), TERMINATION, MAINTENANCE, REPAIR, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE COST OF THE PRODUCT(S) THAT WAS AFFECTED.

6. CUSTOMER DATA & PRIVACY.

6. 1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to execute this Agreement and the Purpose (as defined below); and (b) shall not intentionally grant any third-party access to Customer Data, including without limitation Vendor’s other customers, except its subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law pursuant to subpoena or court order by proper legal or governmental authority. Where not prohibited by court order or an equivalent administrative ruling, Vendor shall give Customer advance notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure.

6. 2. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to this Agreement or recommended or referred to through the System or by Vendor

6. 3. Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Authorized Users.

6. 4. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 90 days or more. Should Customer request that Vendor store the Customer Data beyond 90 days and Customer’s account is not delinquent, Customer shall pay to Vendor in advance, Vendor’s then prevailing data storage fee. It is the Customer’s obligation to request and make arrangement for the extension the storage of the Customer’s Data beyond the 90-day period as set forth above of a delinquent, suspended or terminated Customer account. The Vendor does not have any obligation to notify the Customer that the Customer’s Data will be permanently erased after the expiration of the 90-day of the customer’s delinquent, suspended or terminated account.

6. 5. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor’s computers or other media, any data (“Excluded Data”) that is prohibited by or violates any federal and state laws (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

7. RESPONSIBILITIES & RESTRICTIONS OF THE PARTIES.

7. 1. Acceptable Use.

a.  Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except Customer’s Clients as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except Customer’s Clients as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that Vendor reasonably suspects any breach of the requirements of this Section 7.1, including without limitation by Authorized Users, Vendor may suspend Customer’s access to the System. In the event that Vendor reasonably suspects any breach of this Section 7.1 that is or may result in a security threat to the System as stated above or otherwise, may threaten Customer Data, or may result in a security threat to other customer(s) or their data that is believed to be caused by the Customer, Vendor may immediately suspend the Customer’s access to the System and the Services, and may, at its option, elect to terminate Customer’s access to the System and Services after providing Customer with written notice 7 days in advance.

b.  Vendor shall not: (a) give access to any third parties to the System; (b) provide System passwords or other log-in information to any third party, except as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; or (d) access the System in order to gather Customer’s information or data of any nature. In the event that Customer reasonably suspects any breach of the requirements of this Section 7.1, including without limitation by Authorized Users, Customer may terminate the Agreement by providing Vendor thirty (30) days advance written notice that provides a reasonable description of the justification for the termination.
7.2. Security. Except as may be otherwise provided in a Managed Services agreement, Customer agrees that as it relates to Cloud Services, Customer is solely responsible for its own security. Customer further agrees that if it believes the security of its System has been compromised in any way, it will notify Vendor immediately in writing pursuant to the notice provisions set out in Section 14.10 of this Agreement. Customer shall be held fully responsible for any misuse or compromise to its System for which Vendor is not properly notified. Customer agrees that if any security violations are believed to have occurred in association with Customer’s System, Vendor has the right to suspend access to the System and the Services pending an investigation and resolution. Customer also agrees that Vendor has the right to cooperate in any government or legal investigation regarding any aspect of Vendor’s Cloud Services required by applicable law pursuant to subpoena or court order, including Services sold to Customer. Vendor may (but is not required to) provide the Customer reasonable notice of any such government or legal investigation where not legally prohibited by the investigating authority from doing so. Any use of Vendor’s system to engage in software piracy or other violations of law will result in System suspension and be immediately reported to the appropriate authorities.

7. 3. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

7. 4. Compliance with Laws. In its use of the System and Services , Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.

7. 5. Customer’s Clients & Other Users; System Access. Customer is responsible and liable for and indemnifies Vendor for: (a) Customer’s Clients, Authorized Users, and any other user’s use of the System, including without limitation unauthorized user’s conduct and any Authorized User’s conduct that would violate this Agreement; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.

7. 6. Identification Information. Customer agrees that as the person legally responsible for use of the Services, Customer and any Authorized Users are at least 18 years of age. Customer agrees to supply Vendor with a current and truthful name, postal address and telephone number of all its Authorized Users for Vendor’s records, and Customer has a continued obligation to keep this information current. Customer also agrees that it is an authorized user of any credit card that Customer may supply to Vendor.

8. Intellectual Property (“IP”).

8. 1. Vendor IP Rights in the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System, all software developed by the Vendor for the Customer that the parties have agreed belongs to the Vendor and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to Licensed Software. Customer recognizes that the System and its components are protected by copyright and other laws. During the term of this Agreement, Customer may reproduce and use the Documentation solely as necessary to support Authorized Users’ use of the System.

8. 2. Customer IP Rights in the System. Customer retains all right, title, and interest in and to any data and information stored, or Processed by the System, that belong to or are owned by Customer, including without limitation all fully paid for software developed for the Customer by the Vendor that the parties agree belong to the Customer, logos, and trademarks reproduced through the System that belong to or are owned by Customer. This Agreement does not grant Vendor any intellectual property license or rights in said set of Customer’s Data. Except to the extent necessary for Vendor to maintain the System, including but not limited to the reproduction of Customer Data in backups, or as may be required by applicable law pursuant to subpoena or court order by proper legal or governmental authority, Vendor may not reproduce and use the Customer’s Data except if expressly authorized by Customer in writing. Where not prohibited by court order or an equivalent administrative ruling, Vendor may(but is not required to) give Customer advance notice of any such legal or governmental demand and, if reasonable and requested by Customer, will reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure.

9. CONFIDENTIAL INFORMATION.

9. 1. “Confidential Information” refers to the following items the Parties disclose to each other: (a) any document Parties mark “Confidential”; (b) any information Parties orally designate as “Confidential” at the time of disclosure, provided the other disclosing Party confirms such designation in writing within 2 business days (c) any Customer data stored, processed or transiting in the System. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Parties’ possession at the time of disclosure; (ii) is independently developed by Parties without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Parties’ improper action or inaction; or (iv) is approved for release in writing by the relevant Party.

9. 2. Nondisclosure. Parties shall not use the other’s Confidential Information for any purpose other than operation the System to run each Party business (the “Purpose”).

a.  Customer: (i) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 9; and (ii) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent.
b.  Vendor: (i) shall not disclose Confidential Information to any employee or third-party of Vendor unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Vendor with terms no less restrictive than those of this Section 9; and (ii) shall not disclose Confidential Information to any other third party without Customer’s prior written consent.
Without limiting the generality of the foregoing, Parties shall protect Confidential Information with the same degree of care it uses to protect their own confidential information of similar nature and importance, but with no less than reasonable care. One Party shall promptly notify the other Party of any misuse or misappropriation of Confidential Information that comes to each Party’s attention. Notwithstanding the foregoing, each Party may disclose Confidential Information as required by applicable law pursuant to subpoena or court order by proper legal or governmental authority. Where not prohibited by court order or an equivalent administrative ruling, each e Party shall give the other Party prompt notice of any such legal or governmental demand and reasonably cooperate with the other Party in any effort to seek a protective order or otherwise to contest such required disclosure.

9. 3. Injunction. Each Parties agree that breach of this Section 9 would cause an irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the damaged Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

9. 4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 9.1 above (Nondisclosure) shall survive termination of this Agreement. Upon termination of this Agreement, Parties shall return all copies of Confidential Information to each other or certify, in writing, the destruction thereof.

9. 5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Parties will retain all right, title, and interest in and to all Confidential Information

10. REPRESENTATIONS & WARRANTIES.

10. 1. From Vendor.

a.  Subject to the next sentence, Vendor represents and warrants that it is the owner or the recipient of a valid license to the software or hardware necessary to provide the Services and establish the System for Customer, in accordance to the terms of this Agreement. Vendor’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Section 11.1 below. In the event of a breach of the warranty in this Section 10, Vendor, at its own expense, will promptly, at its sole option, take the following actions: (i) secure for Customer the right to continue using the System; (ii) replace or modify the System to make it non-infringing; or (iii) terminate the infringing features of the service.
b.  Vendor represents and warrants that (a) Vendor has the power and authority to enter into and fully perform its obligations under this Agreement; (b) all Managed Services to be provided will be performed in a professional, industry standard, competent and timely manner, and (c) Vendor’s System shall perform materially as proposed. If the Services provided to Customer were not performed as warranted, Customer must promptly provide written notice to Vendor that describes the deficiency in the Services (including, as applicable, the ticket number notifying Vendor of the deficiency in the Services).
c.  VENDOR DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT VENDOR WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY VENDOR, (C); THE SYSTEM OR THE SERVICES WILL NOT SUSTAIN A DATA BREACH, OR THE THEFT, LOSS OR COMPROMISE OF THE CUSTOMER OR THE CUSTOMER’S CLIENT’S DATA ARISING OR RELATED TO THIRD PARTY CYBER ATTACKS OR OTHER SECURITY INCURSIONS ON OR AGAINST THE SYSTEM OR WHICH LOSS WAS CAUSED OR ATTRIBUTABLE TO THE NEGLIGENCE OF THE CUSTOMER OR THE CUSTOMER’S CLIENT. AND (D) THE SERVICES WILL MEET THE CUSTOMERS REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. CUSTOMER ACKNOWLEDGES THAT VENDOR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VENDOR IS NOT RESPONSIBLE FOR ANY DATA BREACHES, DATA THEFT OR EXTORTION, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. VENDOR IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S CONTENT, CUSTOMER OR CUSTOMER CLIENT NEGLIGENCE, CUSTOMER’S APPLICATIONS OR THIRD-PARTY CONTENT. VENDOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD-PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.
d.  TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM OR THE SERVICES, AND FURTHER EXCEPT AS STATED HEREIN, EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. NO ADVICE OR INFORMATION GIVEN BY VENDOR OR ITS SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS, OR CONTRACTORS SHALL CREATE ANY WARRANTY.
10. 2. From Customer.

a.  Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
b.  Customer represents and warrants that, to the best of its knowledge that Customer will accurately identify each Customer’s Client and Authorized Users and will not provide any inaccurate information about a Customer’s Client or Authorized Users to or through the System.

11. INDEMNIFICATION.

11. 1. From Vendor. Vendor shall defend and indemnify Customer and Customer’s Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the System. Vendor’s obligations set forth in this Section 11 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) use of the System in combination with hardware or software not provided by Vendor; (c) the Customer’s Data; or (d) any modification to the System by Customer or any person acting on behalf of Customer, including Authorized Users, that is not Vendor.

11. 2. From Customer. Customer shall indemnify and defend Vendor and Vendor’s Associates (as defined below) against any of the following:

a.  “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (i) claims by Authorized Users, any of Customer’s users (authorized or unauthorized), or by Customer’s Clients; (ii) claims that use of the System through Customer’s account, including by Customer’s users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising.
b.  To the fullest extent permitted by law, ANY AND ALL CLAIMS, DEMANDS, SUBROGATION CLAIMS BY CUSTOMER’S INSURERS, CAUSES OF ACTION, CONTROVERSIES, LIABILITIES, FINES, REGULATORY ACTIONS, SEIZURES OF EQUIPMENT, LOSSES, COSTS, EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEYS’ FEES, EXPERT WITNESS EXPENSES AND LITIGATION EXPENSES) (HEREINAFTER COLLECTIVELY, “CLAIMS”), ARISING FROM OR IN CONNECTION WITH CLAIMS ASSERTED AGAINST VENDOR FOR ANY LOSS, DAMAGE, ENVIRONMENTAL LIABILITY, PATENT AND/OR INTELLECTUAL PROPERTY INFRINGEMENT RESULTING FROM: (A) INJURY, THEFT. COMPROMISE ,DEATH, LOSS, PROPERTY DAMAGE, DELAY OR FAILURE IN DELIVERY OF THE PRODUCTS OR SERVICES OR ANY OTHER CLAIMS, WHETHER IN NEGLIGENCE, TORT, CONTRACT, OR OTHERWISE, RELATING TO THIS AGREEMENT; (B) THE SPECIFICATIONS PROVIDED BY CUSTOMER; (C) THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES; (D) THE PRODUCTS; (E) THE SERVICES; (F) CUSTOMER’S BREACH OF THIS AGREEMENT;(G) CUSTOMER OR CUSTOMER CLIENT’S DATA BREACH, DATA LOSS OR DATA THEFT ARISING OR RELATED TO ANY THIRD PARTY SECURITY BREACH OF THE SYSTEM WHICH WAS CAUSED OR ATTRIBUTABLE TO THE NEGLIGENCE OF THE CUSTOMER OR THE CUSTOMER’S CLIENT. AND/OR (G) CUSTOMER’S USE, RESALE, DISTRIBUTION, MODIFICATION OR ALTERATION OF THE SERVICES OR THE PRODUCTS.
c.  In the case of any claim, loss or issue arising out of or related to any E-911 or 911 call or communications the provisions of Section 11.2(b) will be read together with the provisions of Section 4.7 to provide the broadest and most expansive indemnification by the Customer to the Vendor possible.
11. 3. Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) under this Section: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its officers, directors, shareholders, employees, parents, subsidiaries, affiliates, agents, successors, and permitted assigns.)

12.LIMITATION OF LIABILITY.

12. 1. Insurance. Customer is expected to carry and maintain an adequate and appropriate level of cyber liability insurance to fully protect Customer and Customer’s Client’s from any loss or losses resulting from a data breach, security incident or other potential compromise of data arising from or related to any third-party cyber attack or other security issue related to the Customer’s use or operation of the System or arising from any type of negligence, by Customer or Customer’s Clients’. This insurance is expected to protect the Customer and the Customer’s Clients as to the cost associated with all aspects of such an incident, including but not limited to, lost business income, credit protection, client notification, forensic and other expert assistances and cyber extortion payments. The parties expressly understand and agree that under no circumstances will the Vendor ever be held liable for any cost or damages sustained by Customer or Customer’s client that would have been covered by an appropriate policy of cyber liability insurance that the Customer would be and is expected to secure and maintain for the term of this Agreement.

12. 2. Cap. The maximum and cumulative amount of Vendor’s liability arising out of related to this Agreement or breach thereof shall not exceed the amount of fees paid by Customer to Vendor in the six months that preceded the termination of this Agreement. Subject to this foregoing cap, Vendor’s liability arising out of or related to this Agreement including, but not limited to, any delays, failures, interruptions, maintenance, Customer or Customer Client data loss, data theft, lost business income, or repairs of the System, losses, damages, termination of the Agreement, or otherwise (collectively “System Failure”), shall not exceed the amount of $100.00 per day (or the pro rata portion thereof) that there is a System Failure resulting from the action of Vendor.

12. 3. Limitation of Liability. CUSTOMER ACKNOWLEDGES THAT ITS EXCLUSIVE REMEDY AND VENDOR’S SOLE LIABILITY TO CLIENT, FOR ANY CAUSE WHATSOEVER RELATED TO THE USE OF THE SYSTEM, OR ANY OF THE SERVICES OR PRODUCTS WILL BE LIMITED TO, AT VENDOR’S ELECTION, EITHER RE-PERFORMANCE OF THE SERVICES, OR REFUND OF A PRO-RATA PORTION OF THE FEES PAID TO VENDOR BY CUSTOMER UNDER THIS AGREEMENT, AS EXPLAINED AND LIMITED BY THE PRECEDING PARAGRAPH. THE FOREGOING LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE. IN NO EVENT SHALL VENDOR, OR ITS PARENT, SUBSIDIARY, OR AFFILIATES, BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY CUSTOMER OR ANY THIRD PARTY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS, INJURY, DAMAGE, OR THIRD-PARTY CLAIM, ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS HEREUNDER, WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. THIS INCLUDES, WITHOUT ANY LIMITATIONS WHATSOEVER, ANY CLAIM BY THE CUSTOMER OR A CUSTOMER CLIENT FOR DATA LOSS OR DATA THEFT OR RELATED DATA RECOVERY OR PRIVACY VIOLATION COSTS AND DAMAGES OF ANY KIND, ARISING OR RELATED TO THIRD PARTY CYBER ATTACKS OR OTHER SECURITY INCURSIONS ON OR AGAINST THE CUSTOMER’S OR CUSTOMER CLIENT’S USE OF THE SYSTEM, OR WHICH LOSS WAS CAUSED OR ATTRIBUTABLE TO THE NEGLIGENCE OF THE CUSTOMER OR CUSTOMER CLIENT IN ADDITION, IN THE CASE OF ANY CLAIM, LOSS OR ISSUE ARISING OUT OF OR RELATED TO ANY E-911 CALL OR COMMUNICATIONS THE PROVISIONS OF THIS PARAGRAPH WILL BE READ TOGETHER WITH THE PROVISIONS OF SECTION 4.7 TO PROVIDE THE BROADEST AND MOST EXPANSIVE PROTECTIONS FROM LIABILITY OR LOSSES TO VENDOR POSSIBLE.

13. TERMINATION.

13. 1. Termination of Services without Cause. Either Party may terminate this Agreement at any moment during its validity by providing written notice for whatsoever reason, by providing 60 days’ written notice.

13. 2. Effects of Termination. Upon any termination of this Agreement, Customer shall cease all use of the System except as provided in the next sentence. Provided that Customer’s account is current and has paid all invoices for fees, Vendor will use reasonable efforts to the extent necessary to assist the Customer’s incoming service provider, in order to assist with the transfer of all Customer’s Data and software to a different IT infrastructure. Customer shall be responsible for all fees and costs associated with the transfer of Customer’s Data to a different IT infrastructure. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Section 4.7 (E-911 Disclaimer of Liability and Indemnification), Section 5 (Terms of Product Sales), Section 8 (IP), Section 9 (Confidential Information), Section 10.1(c)-(d) (Warranty Disclaimers), Section 11 (Indemnification), and Section 12 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

13. 3. Termination of Purchase Orders for Products. Customer may terminate any purchase orders for Products at any time prior to Vendor having accepted the purchase order for Products. Once Vendor has accepted the purchase order for Products, Customer shall not terminate the purchase order, unless it has received the written consent of Vendor prior to such termination.

14. MISCELLANEOUS..

14. 1. Expenses. Except as expressly included under Managed Services, Customer will promptly reimburse Vendor, upon written request therefore, for all actual travel and other expenses incurred by Vendor in connection with, and in furtherance of, its performance of the Services. Expenses include, as applicable, mileage, parking, out-of-town travel costs, report preparation supplies, and allocated charges to cover the costs of technology, fax, telephone and mail/delivery services.

14. 2. Invoicing and Payment. Fees for the Services or Products will be due and payable when invoiced or, if the invoice specifies payment terms, pursuant to the payment terms specified in the invoice. If Customer’s account is past due and Vendor has notified Customer, verbally or in writing, of the past due balance, Vendor may, with seven (7) calendar days’ notice, cease providing any and all further Services or Products without any liability for interruption of pending work or breach of this Agreement. Customer agrees that all fees for Cloud Services are non-refundable once setup is completed. Customer agrees that all fees for Product purchases are non-refundable once the purchase order has been accepted by Vendor. Customer agrees that until and unless Customer notifies Vendor of its desire to cancel any or all Services received, those Services will be billed on a recurring basis. Customer agrees that if it is paying by credit card, prepayments will be billed and charged automatically, and that Vendor may apply the amount due to the provided card at any time. Notwithstanding anything to the contrary in this Agreement or any purchase order or other agreement, Vendor may make changes to pricing from time to time, with regards to its recurring and subscription service offerings with such changes to become effective within 30 days from when Customer has been notified.

14. 3. Taxes. The fees quoted by Vendor may not include all taxes due. If Vendor is required to pay any federal, state or local taxes as result of the performance of the Services or sale of Products pursuant to the terms of this Agreement, such taxes will be billed to and promptly paid by Customer. Notwithstanding the foregoing, Vendor will be solely responsible for the payment of all taxes assessed against Vendor as a result of the income received from Customer under this Agreement.

14. 4. Billing Disputes. Customer must notify Vendor in writing of any disputed charges for Services or otherwise within fourteen (14) days of the charge being posted to its account or invoice. Customer must notify Vendor in writing of any disputed charges for Products or otherwise before the purchase order for the Products is accepted by Vendor. Notices must include all relevant information, including but not limited to account number, amount in dispute, reasons for the dispute, a contact number and email address for the account holder and any other detail sufficient for Vendor to appropriately evaluate the dispute. To the extent Vendor determines that a charge adjustment is warranted, Vendor will credit Customer’s account. If Customer fails to timely notify Vendor of a charge or invoice dispute as noted above, Customer shall have waived all rights to bring any claim or defense regarding the particular charge or invoice and shall forever be foreclosed from doing so.

14. 5. Staffing Decisions. Vendor shall be solely responsible for staffing decisions with respect to its personnel and the performance of Services or sale of Products. Vendor reserves the right to assign, re-assign and substitute its personnel with personnel with comparable qualifications at any time during the term of this Agreement.

14. 6. Non-Solicitation. During the term of this Agreement and for a period of two (2) years thereafter (collectively, the “Non-Solicitation Period”), Customer understands and agrees that Customer will not solicit, entice, hire, employ, engage, or seek to employ or engage any employee, partner, principal or independent contractor employed or engaged by Vendor during the Non-Solicitation Period (each individually a “Person”) without the express written consent of Vendor. Any violation of this Paragraph that will be considered a material breach of this Agreement. In the event of a violation of this Paragraph, in addition to any other remedies Vendor may be entitled to and Customer agrees to pay Vendor, immediately upon such Person’s departure from Vendor or such Person’s employment or association with Customer, a sum equal to three (3) times the annual aggregate compensation, monetary and dollar value of non-monetary, payable to the applicable Person by Vendor immediately prior to such breach. Vendor and Customer each acknowledge and agree that the foregoing payment is not intended to constitute liquidated damages or a penalty, but instead is intended to provide Vendor with a sum of money in which to commence to seek a replacement for said Person.

14. 7. Email Transmissions. In connection with Vendor’s performance of the Services or sale of Products, Vendor may communicate, from time to time, with Customer or others via email transmission. Customer acknowledges and accepts, and waives any claim in opposition hereof, that Vendor cannot guaranty, and does not warrant, that the email transmissions from Vendor: (i) will not be intercepted and read, disclosed or otherwise used or communicated by a third party; or (ii) will be delivered to each of the parties to whom they are directed and only such parties. In furtherance thereof, Vendor specifically disclaims and hereby waives any liability or responsibility whatsoever for intercepted, disclosed or communicated email transmissions, and with respect to the unauthorized use or failed delivery of email transmissions, transmitted by Vendor or its personnel in connection with the performance by Vendor of the Services or sale of Products. FURTHERMORE VENDOR SPECIFICALLY DISCLAIMS AND CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT VENDOR SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY LOSS OR DAMAGE TO ANY PERSON OR ENTITY, INCLUDING, WITHOUT LIMITATION, THE CUSTOMER AND ANY AUTHORIZED USER RESULTING, IN WHOLE OR IN PART, FROM THE FOREGOING, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, DIRECT OR INDIRECT OR SPECIAL DAMAGES, SUCH AS LOSS OF SALES OR ANTICIPATED PROFITS OR DISCLOSURE OR COMMUNICATION OF CONFIDENTIAL OR PROPRIETARY INFORMATION.

14. 8. Service Rates. Services (other than Managed Services) are billed in half hour increments. Travel and preparation time are billed at the normal hourly rate. These rates apply between 8:30 a.m. and 6:30 p.m. Eastern Time, Monday through Friday, except Holidays. If travel is in excess of one hour driving time each way, day rates apply, and will be quoted for the specific engagement. Day rate services must be provided during normal business hours (8:30 a.m. to 6:30 p.m.). Services (other than Managed Services) provided outside these normal business hours will be billed according to Vendor’s standard overtime rates. Rates quoted do not include expenses related to travel, which will be billed as incurred. Premium rates apply to after-hours service (other than Managed Services), according to the following table:

HOURS OF SERVICE                               RATE                                        MINIMUM
Weekdays: 6:30 pm – 10:00 pm           1.5 times service rate               1 hour
Weekends: 8:30 am – 10:00 pm           2.0 times service rate              1 hour
Every day: 10:00 pm – 8:30 am             2.0 times service rate               1 hour

14. 9. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The Parties agree that no Vendor employee or contractor is or will be considered an employee of Customer.

14. 10. Notices. All notices to the Vendor given pursuant to this Agreement will be in writing and will be delivered or sent by (a) first class mail, registered or certified, return receipt requested, postage pre-paid; or (b) an international express mail, or national express courier with a tracking system. A copy of all notices shall also be sent to Vendor by email. Notices will be deemed given on the day actually received by the Vendor. Notices shall be directed to the Vendor as follows:

To Vendor:
Virtuworks
Attn: Omar Armenteros
3850 Bird Road, Suite 103
Coral Gables, FL 33146
Contact Name: Omar Armenteros
Telephone: Main: 305.265.0447
Email: help@virtuworks.com

Notices to Customer shall be made in writing by: (a) email to the email address that Customer has provided to Vendor; (b) first class mail, registered or certified, return receipt requested, postage pre-paid; or (b) an international express mail, or national express courier with a tracking system. Notices will be deemed given on the day actually received by Customer.

14. 11. Force Majeure. Neither party shall be in breach of its obligations under this Agreement (other than payment obligations) or incur any liability to the other party for any delay or failure to perform its obligations hereunder if and to the extent such delay or nonperformance is caused by acts of war, terrorism, hurricanes, earthquakes, pandemics , other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond such party’s reasonable control (“Force Majeure Event”) provided that such Party has taken commercially reasonable efforts to promptly overcome the delay or failure. The party affected by the Force Majeure Event shall: (i) promptly inform the other party of such delay or nonperformance; (ii) use commercially reasonable efforts to avoid or remove the underlying cause of the delay or nonperformance; and (iii) resume performance hereunder as soon as reasonably practical following the removal of the Force Majeure Event. Either party may terminate this Agreement by written notice to the other if a Force Majeure Event affecting performance hereunder continues for a period of thirty (30) calendar days or more. Notwithstanding the foregoing or any other provisions of this Agreement no Force Majeure Event shall modify or excuse Customer’s payment obligations or the Parties’ obligations as set forth in Section 3.6 (Backup of Data), Section 4.7 (E-911 Disclaimer of Liability and Indemnification), Section 9 (Confidential Information), Section 11 (Indemnification), and Section 12 (Limitation of Liability).

14. 12. Assignment, Subcontractors & Successors. Neither Party may assign, delegate, or transfer this Agreement or any of its rights or obligations hereunder without the other Party’s express written consent which may not be unreasonably withheld. Notwithstanding the foregoing, Vendor may at any time upon notice to Customer assign or otherwise transfer Vendor’s rights and obligations under the Agreement to any of its affiliates or successors in business. Notwithstanding anything to the contrary, Vendor may subcontract all or part of the Services to a qualified third party. Vendor may also at any time involve any of its affiliates and successors in business as sub-contractors under this Agreement. In such event, Vendor will be liable for any sub-contractors used in the performance of its obligations under the Agreement.

14. 13. Severability; Enforceability. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity; provided, however, if such invalid or unenforceable provision may be modified so as to be valid and enforceable as a matter of law, such provision will be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law. The Parties acknowledge and agree that this Agreement allocates risk between them as authorized by any applicable law and the amount of the fees charged for the Services or sale of Products reflects this allocation of risk and other limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect.

14. 14. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

14. 15. Governing Law; Construction. This Agreement has been executed and delivered in, and shall be governed by, construed under, and enforced in accordance with, the laws of the State of Florida, without respect to its conflict of laws principles. The Parties agree that this Agreement was prepared jointly by each of them and shall be construed on a parity as between the Parties. There shall be no canon of con¬struction for or against any party by reason of the physical preparation of this instrument. Any legal action of whatever nature by or against the Parties arising out of or related in any respect to the Agreement shall be brought solely to that jurisdiction.

14. 16. Export Control and Compliance with Laws. The Services and Products are subject to the export control laws and regulations (including “deemed export” and deemed re-export”) of various countries, including without limit the laws of the United States (“Export Laws”) and Customer agrees to comply with all such Export Laws. Customer agrees that Customer will not submit the Services or any Products to any government agency for licensing consideration or other regulatory approval without Vendor’s prior written consent. Customer will not directly or indirectly, and will not allow any third party to directly or indirectly, export, re-export or transfer any part of the Services to countries, persons or entities prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. Customer is also responsible for complying with all applicable laws and regulations in the jurisdictions where Customer operates.

14. 17. Jurisdiction & Venue. Jurisdiction and venue for litigation or arbitration of any dispute, controversy or claim arising out of or in connection with this Agreement, shall vest only in Miami-Dade County, Florida. The Parties expressly submit and consent in advance to such jurisdiction in any action or proceeding commenced in Miami-Dade County, Florida, and the Parties hereby waive any objection which either may be based upon the lack of personal jurisdiction and hereby consent to the granting of such legal or equitable relief as is deemed appropriate by any such court. Furthermore, the Parties waive, to the extent permitted under applicable law, any right each may have to assert the doctrine of “forum non conveniens” or to object to venue to the extent any proceedings are brought in accordance with the paragraph. The Parties hereby waive personal service of any summons or complaint or other process or papers to be issued in any action or proceeding involving any such controversy and hereby agrees that service of such summons or complaint or process may be made by registered or certified mail, Federal Express, or UPS at the address appearing herein.

14. 18. Arbitration. Any and all disputes, claims or controversies arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including but not limited to all claims for injunctive or equitable relief and the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Miami, Florida before one arbitrator. The arbitration shall be administered by American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

14. 19. Waiver of Jury Trial. It is understood that this Agreement is subject to arbitration. However, in the event there were to be litigation, erroneously, by agreement, or otherwise, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

14. 20. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

14. 21. Conflicts. In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) any Attachment to this Agreement.

14. 22. Headings. The headings herein are for convenience of reference only and shall not be deemed to be part of the substance of this Agreement.

14. 23. Entire Agreement. This Agreement including its Attachments sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous or separate communications.

14. 24. Amendment. This Agreement can be amended unilaterally by the Vendor by posting changes to the Agreement on Vendor’s website and notifying the Customer of such amendment. The Customer agrees that its continued use of the System or the Services after the Customer receives notice of such amendment by Vendor constitutes acceptance of any such amendment by the Customer

14. 25. No Third-party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

14. 26. Joining of Disputes. NO DISPUTE OR CLAIM MAY BE JOINED WITH ANOTHER LAWSUIT OR IN ARBITRATION WITH A DISPUTE OF ANY OTHER PERSON. BY AGREEING TO THIS AGREEMENT, PURCHASING PRODUCTS, OR USING VENDOR’S SERVICES, CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO BRING ITS CLAIM ON A CLASS-WIDE BASIS OR IN THE FORM OF A CLASS ACTION.

14. 27. Time of the Essence. Vendor and Customer acknowledge and agree that time is of the essence with respect to its obligations under this Agreement and that timely performance of all such obligations, including all timetables and other requirements of this Agreement, is strictly required.

ATTACHMENT A-1

Service Level Agreement (SLA) as to Managed Services

Prioritization

In order to address Customer’s service requests in a timely manner as it relates to the Managed Services, Vendor provides prioritization based on both urgency and impact.

Level of Urgency is a measure of Authorized Users affected by the incident, and is classified by High (H), Medium (M) and Low (L) based on the following definitions:

Level of Urgency Definitions

High (H) Customer’s whole company is affected;
Medium (M) Departments or large group of Users are affected
Low (L) One Authorized User or a small group of Authorized Users is affected

Business Impact is the measure of extent the Incident caused by the Incident before it can be resolved. Business Impact is classified by High (H), Medium (M) and Low (L) based on the following definitions.

Business Impact definitions

High (H) Critical-Major business processes are stopped
Medium (M) Business is degraded, but there is a reasonable workaround
Low (L) More of an irritation, than a stoppage

In accordance to the Priority Calculation Table below, priority is measured from P1 (Critical) to P5 (Planning) using Urgency & Impact:

Level of Urgency
High Medium Low
Business
Impact High 1 2 3
Medium 2 3 4
Low 3 4 4

SLA – Operational Business Hours: 8:30 A.M. TO 6:30 P.M.

Service Level Matrix

Priority      Classification      Response*      Resolution Plan*           Resolve By*
1                          Emergency              1 hr                    2 hrs                                      4 hrs
2                         High                          1 hr                    4 hrs                                      8 hrs
3                          Medium                 2 hrs                   8 hrs                                    16 hrs
4                          Low                         2 hrs                   8 hrs                                     16 hrs

Customer’s sole and exclusive remedy for Vendor’s failure to meet the above service levels shall be that Customer may terminate the Agreement after providing Vendor with 30 days’ advance written notice. Otherwise, the provisions regarding the Limitations of Liability set out in Section 12 of the Agreement apply.

ATTACHMENT A-2

Service Level Agreement (SLA) as to Cloud Services

Vendor will host and maintain the System 24 hours per day, 7 days per week, and 365 days per year. Vendor will keep the System fully functional and available to its Authorized Users (including Customer and Authorized Users) 99.8% of the time with the exception of scheduled maintenance pre-approved by the Customer (the “Uptime”). If Vendor does not satisfy the Uptime level established above, Vendor shall credit Customer amounts as set forth below:

• If Uptime falls below 99.8% for any given month, then for that month, Vendor shall credit Customer the percentage of downtime beyond 0.2%. By way of example only, if the downtime for September is a total of 4%, then Vendor will credit the monthly fee Management Services for September by 3.8% of that monthly amount; if the monthly fee was $100, Customer would receive a credit of $3.80 for the month of September.
• If Uptime falls below 98% for any three months of a 12 month rolling period, Vendor shall be considered in material breach of this Agreement and Customer may, but shall not be obligated to, terminate this Agreement for cause by delivering written notice to Vendor.
  Notwithstanding the foregoing, the Uptime percentages agreed to by Vendor and Customer, presume and are contingent on the Services being provided at Vendor’s datacenter and infrastructure and equipment. Customer acknowledges that should Services be provided to Customer by any person that is not Vendor or with any non-Vendor equipment, Vendor shall not be obligated or to (or otherwise liable to Customer for failure to) meet the Uptimes set forth herein and Customer shall not be entitled to any credits as set forth herein.

The System is not considered to be in Uptime in the event of performance degradation or inoperability, in whole or in part if the level of severity for Cloud Services is High and the level of impact is High.

To the extent Customer claims that it is entitled to any credits resulting from a claimed System Failure related to the Uptime requirements set forth herein (“Uptime Failure”), Customer shall notify Vendor in writing within 7 calendar days of the alleged Uptime Failure. Vendor will credit the following month’s statements if it agrees to the percentage/hours/days of Uptime Failure claimed by Customer. Should Vendor disagree to the alleged percentage/hours/days of Uptime Failure, Vendor will provide Customer with a report rebutting Customer’s claims of Uptime Failure within 7 calendar days (if Vendor fails to provide Customer with the report, Customer will be entitled to the claimed credit). Should Customer fail to claim any amounts to be credited within 7 calendar days of the alleged service interruption for Uptime Failure, Customer shall be forever foreclosed from doing so.

The Provision of the Agreement, including but not limited to the Limitations of Liability Provisions of Section 12 are and remain fully incorporated into this SLA.