THESE MASTER TERMS AND CONDITIONS (“Terms”) are entered into on the date set forth in the Ordering Document (“Effective Date”) by and between Celerity Enterprises, Inc., a Kansas Corporation, with a notice address of PO Box 8840, Kansas City, MO, 64114 (“Provider”), and the entity executing the Ordering Document to which these Terms are incorporated into (“Customer”). Customer and Provider may individually be referenced as a “party” and collectively the “parties”.

NOW, THEREFORE, in consideration of the mutual agreements and covenants contained therein and for other good and valuable consideration, the receipt and sufficiency of which hereby are hereby acknowledged, it is mutually agreed and covenanted by and between the parties to these Terms, under seal, as follows:

1.   ARTICLE 1 – GENERAL

1.1   Ordering Licensed Software and Services.

Provider hereby offers to Customer, and Customer hereby procures from Provider, a right to access and use certain software and/or software-as- a-service (“Software”) as more fully described in an executed purchase order, statement of work, or other ordering document (in any case, the “Ordering Document,” “SOW,” or “Purchase Order” and such terms are used interchangeably) referencing these Terms via hyperlink. As applicable under each Ordering Document, Provider will also provide services in connection with the Software (“Services”) as more fully described in the Ordering Document. Such Services may include, without limitation, Support and Maintenance Services (Section 2.4), Custom Development (Section 2.6), Installation and Implementation (Section 3.1), Training (Section 3.4), or other services offered by Provider or required by Customer from time-to-time. For the avoidance of doubt, execution of an Ordering Document by Customer that contains a hyperlink to these Terms automatically incorporates these Terms into the Ordering Document and Customer agrees to comply with all terms and conditions set forth in these Terms in connection with the receipt and use of Services under the Ordering Document.

1.2   Affiliates and Enterprise Rights.

Certain Ordering Documents may include “Enterprise Rights” permitting Customer to make the Software and Services under that Ordering Document available for access and use (at Customer’s option) by any entity related to Customer or doing business in the ordinary course with Customer (“Enterprise Entities”). In the case of Ordering Documents with Enterprise Rights, Customer will be responsible for its own and for authorized Enterprise Entities’ acts and omissions under that Ordering Document with Enterprise Rights in accordance with the provisions of the Ordering Document and these Terms, unless expressly provided otherwise in that Ordering Document.

2.   ARTICLE 2 – RIGHTS GRANTED

2.1   Access.

As further contemplated and described in each applicable Ordering Document, Provider hereby grants to Customer a non-exclusive right to access and use the Software. Except as expressly set forth otherwise in an applicable Ordering Document, the foregoing right of access includes the right to allow employees, agents and contractors to access and use the Software in connection with their relationship to Customer or Enterprise Entities (“Authorized Users”). The initial listing of Authorized Users shall be set forth in the Ordering Document. Customer is responsible and liable for the acts and omissions of each Authorized User permitted to access the Software. Customer is permitted to access and use the Software (a) for internal business use, and (b) for the purpose(s) identified in the applicable Ordering Document, including at or for the location(s) identified in the applicable Ordering Document. If the Software is hosted by Provider or its contracted cloud provider and is accessible via web-based portal or mobile application or as a software-as-a-service model (all of the foregoing, “Hosted Services”), Provider hereby grants a worldwide, non-exclusive right to access and use the Software through the Hosted Services. Unless otherwise stated, all references to “Software” will be deemed to include Hosted Services as appropriate to the context.

2.2   Documentation.

Provider hereby grants a non-exclusive right to access and use any Provider-provided user manuals, on-line help functions and user instructions regarding the operation, installation or maintenance of the Software (“Documentation”) for the sole purpose of using the Software for the intended or permitted purposes. Provider will provide to Customer Documentation that describes the functional and operational characteristics, specifications, and requirements of the Software. Provider may from time to time provide to Customer updates of such Documentation as soon as reasonably practical following its release by Provider.

2.3   Technical Requirements.

Except as otherwise specified herein, Customer will provide all equipment as listed in the Ordering Document. Except as otherwise specified herein, Customer will provide all necessary provisioning, security, support, and maintenance of the applicable facility’s local area network and all network equipment, network connections, printers, computing devices and all software and other hardware operating on the internet.

2.4   Support and Maintenance Services.

Provider will provide to Customer the support and maintenance services for the Software set forth in the Ordering Document (“Support and Maintenance Services”), if any, which will extend for such period specified in the Ordering Document (the “Initial Support Term”), if any. Thereafter, Customer will have the option on a year-to-year basis to extend the term of Support and Maintenance Services, so long as Provider generally offers the same or similar service to other customers. Support and Maintenance Services may be terminated by either party upon ninety (90) calendar days’ prior written notice to the other party. Unless otherwise provided in the Ordering Document, Support and Maintenance Services fees will be paid annually in advance, and Provider will submit an invoice for same to Customer no less than ninety (90) calendar days prior to each anniversary date of the start of the Support and Maintenance Services. Support and Maintenance Services fees for the Initial Support Term will be set forth in the Ordering Document. Provider may increase the Support and Maintenance fees hereunder on the anniversary of the Effective Date by an amount equal to the percentage increase in CPI in the previous twelve (12) month period or five percent (5%), whichever is greater.

2.5   Updates; Security Patches.

During the applicable warranty period and for as long as Customer subscribes to Support and Maintenance Services, Provider will provide to Customer, without additional charge, any and all routine Software changes and updates intended to provide general improvements, up-to-date security patches, updates, routine fixes, and other modifications to the performance of the Software that are announced by Provider or that are required to comply with applicable federal and state law (“Updates”). If the Software is offered through Hosted Services, Provider will install Updates during the Term that support and enhance the features, functionality, performance, security, and services of the Software.

2.6   Custom Development.

Customer may request Provider submit a SOW detailing Provider’s development of custom software, documentation, designs, specifications, and other materials or work product (each, a “Custom Development”). Such SOW should include a timeline for the development and delivery of such Custom Developments and a price quote. If Customer approves the SOW, then the parties will enter into the SOW for such Custom Developments. If Customer does not approve the SOW, then the parties will not be obligated to proceed with such Custom Developments. For the avoidance of doubt, Provider will own all right, title, and interest in and to the Custom Development and hereby grants Customer a non-exclusive, perpetual, irrevocable (during the Term), royalty-free, worldwide right to access and use the Custom Development in the same manner as if the Custom Development were Software under the other provisions of these Terms.

2.7   Open Source and Third-Party Licenses.

If the Software contains open source or other third-party software, materials, other elements (“Third Party Software”), Customer agrees to abide by any Third Party Software terms and conditions that are applicable to Customer’ use of the Software. Provider will use commercially reasonable efforts to assist Customer with identified issues associated with Third Party Software licensors; provided, Provider reserves the right to discontinue offering the Software (or any portion thereof) in the event a Third Party Software licensor rights cannot be resolved by the parties using commercially reasonable efforts. Provider shall not incur any penalty or be in breach of these Terms for discontinuing its provision of Software by reason of this Section 2.7.

2.8   Service Level Agreement; Specifications.

As further described in each Ordering Document, the Software and Services will be provided and operate, as applicable, in accordance with required service levels and specifications, including those regarding availability, latency, response times, incident response times, and incident resolution times, as applicable, for the type of Software or Service.

2.9   Security, Disaster Avoidance, and Recovery.

As and if applicable to the Software and Services, Provider will maintain physical and logical security, access controls, redundancies, and contingencies. However, Provider expressly disclaims any and all obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data, or any other data transferred by Customer to Provider or stored or processed by or on behalf of Provider. Customer is and remains responsible for backing up and securing Customer Data.

3.   ARTICLE 3 – IMPLEMENTATION

3.1   Installation and Implementation.

As described in the applicable Ordering Document, Provider will use commercially reasonable efforts to support Customer’s efforts to install and implement (collectively, “Installation and Implementation”) the Software in accordance with the implementation workplan set forth in or developed under the Ordering Document (“Implementation Workplan”).

3.2   Personnel.

Provider will designate a Provider project manager (the “Provider PM”) who will act as a liaison between Provider and Customer for all matters related to these Terms. Customer will provide a project manager (the “Customer PM”) who will act as a liaison between Provider and Customer. The Provider PM and the Customer PM and any other appropriate individuals will meet to discuss the status of the Implementation Workplan every two weeks or as otherwise specified.

3.3   Change Order Procedure.

If Customer requests a change (a “Change Request”), the Provider PM and Customer PM will follow the change management process set forth herein. Provider will, within five (5) business days of its receipt of a Change Request, provide Customer with a proposed change order setting forth: (i) the impact, if any, and the modifications that will be required as a result of the Change Request, (ii) the effect of the Change Request on the Implementation Workplan including the time to complete the Change Request, and (iii) the total cost of the Change Request and any implementation delays or obligations of Customer that will result from such Change Request (the “Change Request Form”). Provider will obtain the written approval by the Customer PM of such Change Request Form prior to proceeding with the Change Request.

3.4   Training.

Following Acceptance or as otherwise provided in the Ordering Document, Provider may provide training Services, tools, or resources (“Training”) in accordance with training plan set forth in the Ordering Document, if any. Applicable Training sessions will be conducted by Provider personnel at the times and places set forth in the in training plan. Provider will schedule and provide such Training as required in the Ordering Document or soon as reasonably practical if not otherwise specified.

4.   ARTICLE 4 – FEES AND PAYMENT

4.1   Fees.

Customer will pay to Provider the one-time and/or recurring fees and expenses specified in the Ordering Document (“Fees”). Provider may increase the Fees hereunder on the anniversary of the Effective Date by an amount equal to the percentage increase in CPI in the previous twelve (12) month period or five percent (5%), whichever is greater.

4.2   Payment.

Provider will invoice Customer in accordance with Ordering Document. Payment by Customer will be thirty (30) days from the date of receipt of Provider’s invoice, unless otherwise specified in the Ordering Document. In the event Customer fails to pay any Provider invoice within thirty (30) days of receipt, such unpaid amounts shall be subject to a finance charge of 1.5 % per month on any outstanding balance, or the maximum rate permitted by law, whichever is lower. Customer shall also be responsible for all expenses of collection due on any balance due, including, but not limited to, Provider’s reasonable attorneys’ fees and expenses. In the event Customer fails to pay any Provider invoice within ten (10) days of receipt of written notice of Customer’s delinquency, Provider may, in addition to any other remedy available hereunder, immediately terminate and/or suspend each or all of the following: (i) the Software and Services; (ii) these Terms and (iii) any applicable Ordering Document, which such termination and/or suspension shall not be deemed a waiver of any right to collect monies due and payable to Provider. Customer does not have the right to set off any amounts under these Terms.

4.3   Taxes.

Customer will be responsible for any sales, use, property, gross receipts, or similar taxes levied against any party to these Terms resulting from its receipt of the Software or Services (except the income taxes of Provider).

5.   ARTICLE 5 – CONFIDENTIAL & PROPRIETARY INFORMATION

5.1   Definitions.

Each party acknowledges and agrees that these Terms and all information, materials, images, and data of the other party that it may acquire or be exposed to during the course of these Terms that is not generally known by the public, or is of a confidential or proprietary nature shall be considered “Confidential Information.” Confidential Information includes, but is not limited to, information: (a) concerning the other party’s business affairs, property and methods of operation; (b) disclosed by a party to the other including, but not limited to, all materials, know how, processes, trade secrets, manuals, reports, financial and operational information, Personal Information (defined in Section 6.1); (c) relating to third party vendors that have provided any part of a party’s information, information technology systems such as software and equipment and/or communications and information technology infrastructures; (d) about or related to a party’s employees, agents and Authorized Users; and (e) without limiting the generality of the foregoing, information marked as “confidential,” “proprietary,” or with a similar designation.

5.2   Obligations.

Having acknowledged the foregoing, the party that received Confidential Information (“Receiving Party”) agrees to (i) exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed the Confidential Information (“Disclosing Party”) that it exercises with respect to its own Confidential Information, but in no event less than a reasonable degree of care; (ii) not to use the Disclosing Party’s Confidential Information except as specifically permitted hereunder; and (iii) not to directly or indirectly disclose, distribute, republish or allow any third party to have access to any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent.

5.3   Exceptions.

Notwithstanding Section 5.2, but subject to the further requirements of these Terms, as applicable, Receiving Party may disclose Confidential Information to any employee, agent or subcontractor who has a need to know, provided that the recipient has agreed to maintain the confidentiality of the Confidential Information. Receiving Party may also disclose Confidential Information if required by law (including court order or subpoena) provided that any such disclosure complies with Section 5.4 below. Confidential Information will not include information that is: (i) publicly available or later becomes publicly available other than through a breach of these Terms; (ii) known to the Receiving Party or its employees or agents prior to disclosure by the Disclosing Party; (iii) independently developed by the Receiving Party or its employees or agents subsequent to such disclosure; or (iv) lawfully obtained by the Receiving Party or its employees or agents from a third party without any obligations of confidentiality applicable to said third party.

5.4   Notification Obligation.

If the Receiving Party becomes aware of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, the Receiving Party will promptly notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Receiving Party or any of its employees, agents, subcontractors are requested or required (by law, regulation, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand such as regulatory or governmental requests or other similar process) to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will not disclose the Confidential Information without providing the Disclosing Party at least seventy-two (72) hours prior written notice of any such request or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of these Terms. Notwithstanding the foregoing, the Receiving Party will exercise its best efforts to preserve the confidentiality of the Disclosing Party’s Confidential Information including, without limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by the person requesting same.

5.5   Return of Confidential Information.

Following the date of termination of these Terms and/or the applicable Ordering Document, the Receiving Party will return to the Disclosing Party or destroy all Disclosing Party Confidential Information of the party in its possession or under its control.

5.6   Ownership of Customer Data.

All Information acquired, processed, stored, or distributed using the Software, including, but not limited to, information contained in any Hosted Services database is hereby defined as “Customer Data.” Customer will remain the sole and exclusive owner of all right, title and interest in and to any and all Customer Data; provided, however, Customer hereby grants Provider a perpetual, irrevocable, royalty-free, transferable, sublicensable right and license to retain and use aggregated or de-identified Customer Data for any purpose (including, without limitation, the provision and improvement of the Software and Services and for benchmarking purposes) or otherwise in accordance with applicable law. For clarity, Provider may access, process and use the Customer Data in order to, and to the extent required to, provide the Software and Services to Customer under these Terms.

5.7   Intellectual Property.

The Software and Services are proprietary to Provider. As between Customer and Provider, all right, title, and interest in and to the Software, Services, Custom Developments, Documentation, and any other Provider materials provided or made available under these Terms shall be and remain the property of Provider and its licensors and may be used only as expressly permitted by these Terms. Provider retains all right, title and interest in any materials, results, methods, improvements or insights relating to the Software and Services, including any feedback provided by Customer.

6.   ARTICLE 6 – INFORMATION PROTECTION

6.1   Definitions.

“Personal Information” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. “Information Security Incident” means the unauthorized acquisition by a third party of Personal Information received from Customer.

6.2   Information Protection.

In addition to any other provision herein, each party will use commercially reasonable efforts to implement and maintain security procedures and practices that are designed to protect the Personal Information disclosed to Provider by Customer from unauthorized access, use, modification, disclosure, or destruction. In the event of the occurrence of any situation or happening that actually results in an Information Security Incident (an “Event”): (i) Provider agrees to use commercially reasonable efforts to give notice to Customer of such Event as soon as practicable upon the discovery of the Event, but no later than seventy two (72) hours after discovery, providing as much information as Provider knows at that time; (ii) Provider and Customer will cooperate in an investigation of the Event; and (iii) Provider and Customer will cooperate in any remedial efforts required under law or agreed to by the parties.

7.   ARTICLE 7 – TERM AND TERMINATION

7.1   Term.

The initial term will be for the period set forth in the Ordering Document (“Initial Term”), unless earlier terminated as provided herein, provided that these Terms will be automatically extended for one or more additional one (1) year renewal terms (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”), unless a party provides the other notice of non-renewal at least ninety (90) days prior to the end of the Term. Termination or expiration of these Terms will not affect any Ordering Documents agreed to in writing by the parties prior to the effective date of termination or expiration of these Terms, except as expressly provided otherwise.

7.2   Termination for Breach.

These Terms and all Ordering Documents may be terminated by either party in the event of a material breach by the other party (the “Defaulting Party”) of any of its material obligations under these Terms or any applicable Ordering Document and failure by the Defaulting Party to remedy such breach within ten (10) days after written notice of such breach is provided to the Defaulting Party. In the event of such termination: (i) neither party shall be relieved of any of its obligations incurred prior to such termination, and (ii) to the extent a specific Ordering Document is terminated, any other Ordering Document which is not terminated shall survive in accordance with its terms.

7.3   Termination for Insolvency.

In addition to the rights to terminate provided herein, these Terms and any or all Ordering Documents may be terminated, by either party, effective immediately and without notice, in the event of (i) the dissolution, termination of existence, liquidation or insolvency of the other party, (ii) the appointment of a custodian or receiver for the other party, (iii) the institution by or against the other party of any proceeding under the United States Bankruptcy Code or any other foreign, federal or state bankruptcy, receivership, insolvency or other similar law affecting the rights of creditors generally, or (iv) the making by the other party of a composition of, or any assignment or trust mortgage for the benefit of, creditors.

7.4   Survival; Effect of Termination.

The following provisions will survive the expiration or termination for any reason: Sections 2.6, 4.1, 4.2, and Articles 1, 5, 6, 8 – 11. Within thirty (30) days after any termination or expiration, each party will promptly return to the other party, or otherwise destroy and permanently erase as a party may instruct, all Confidential Information, and all other materials that a party may have in its possession or under its control. Neither party’s termination, nor any remedy sought by either party in connection with these Terms, will be with prejudice to any other right or remedy that such party may have at law or in equity. Termination will not relieve either party of breaches occurring prior to the effective date of such termination.

8.   ARTICLE 8 – REPRESENTATIONS AND WARRANTIES

8.1   General Warranty.

Each party represents and warrants to the other party that such party has the required rights, power and authority to enter into these Terms and to grant all rights granted hereunder.

8.2   Provider Warranties.

Provider makes the following additional representations, warranties and covenants:

8.2.1  

The Software will be provided in accordance with the Documentation and the provisions of these Terms and the applicable Ordering Document.

8.2.2  

Provider will provide its Software, Services and other obligations using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards and will devote sufficient personnel and resources to discharge its obligations under these Terms.

8.2.3  

Provider will not knowingly introduce any software, hardware or other technology, device or means, including any virus, worm, malware, disabling, malicious or other harmful computer code (“Harmful Code”), the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm Customer Data.

8.3   Customer Warranties.

Customer makes the following additional representations, warranties and covenants:

8.3.1  

Customer shall use the Services and Software solely for its internal business purposes as contemplated by these Terms, and shall not interfere with the integrity or performance of the Services or Software or the data contained therein or attempt to gain unauthorized access to the Services or Software.

8.3.2  

The Customer Data will be free of any Harmful Code or any other malicious code as such terms are understood in the computer industry.

8.3.3  

Customer has obtained, and hereby grants to Provider, all necessary rights, licenses, authorizations, and consents (including from data subjects providing Personal Information) that are necessary to allow Provider to process the Customer Data in accordance with these Terms.

8.3.4  

Customer is and will remain solely responsible for ensuring the legality, accuracy, quality, integrity, timeliness, correctness, and appropriateness of all Customer Data it provides or makes available to Provider.

8.3.5  

Customer will cause all contracted third party vendors to reasonably cooperate and assist Provider and, further, Customer will cause all contracted third parties providing (or serving as point of contact for) Customer’s purchasing operations or inventory management (collectively, “Vendors”) to use the Software and coordinate and cooperate with Provider representatives with respect to such use.

8.3.6  

Customer shall not reverse engineer any Software or Service, including the Hosted Services, or disassemble, decompile, or otherwise apply any procedure or process to same in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code for same or other software provided or made available for use and/or access under these Terms, or any algorithm, process, procedure or trade secret information contained in same or any software provided by Provider.

8.3.7  

Customer shall not redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer any rights to any part of the Software or Services, including the Hosted Services, or other software provided or made available for use and/or access under these Terms, except Customer may permit Authorized Users to use and access the Software and Services.

8.3.8  

Customer shall not copy or otherwise reproduce any software, any part or component of the Software or the Services provided by Provider hereunder or remove, alter or destroy any proprietary markings contained in or on such software, Software or Services.

8.3.9  

Customers is and shall remain responsible for all acts and omissions, negligent or otherwise, of its Authorized Users accessing and using the Software and Services and any third party accessing the Software and Services through the leaked or negligently accessed credentials of an Authorized User (whether known by Customer at the time of access or not).

8.4   Disclaimer of Warranties.

EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS ARTICLE 8, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS.” PROVIDER DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY INFORMATION PROVIDED BY CUSTOMER IN CUSTOMER DATA AND PROVIDER SHALL NOT BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF CUSTOMER DATA. PROVIDER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS CUSTOMER WILL OBTAIN BY USING THE SOFTWARE OR SERVICES NOR DOES PROVIDER GUARANTEE ANY OUTCOMES FROM USE OF THE SOFTWARE OR SERVICES.

9.   ARTICLE 9 – INDEMNIFICATION

9.1   General.

Customer will indemnify, defend and hold harmless Provider and its affiliates, members, directors, trustees, officers, shareholders, employees, representatives, agents, attorneys, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, liabilities, obligations, judgments, suits, proceedings, causes of actions, assertions, allegations, government fees and penalties, and investigations (“Claim(s)”), arising out of: (i) any breach by Customer of any warranty, covenant or other obligation; (ii) any violation of any local, state or federal law, rule or regulation; (iii) breach of the confidentiality related provisions; (iv) Customer Data, including any claims for infringement, misappropriation, or violation of intellectual or privacy rights of a third party, or (v) any death, injury, or other loss incurred by an Authorized User or any other individual arising from or related to the use or misuse of the Software or Services. Customer will be responsible for paying all claims, liabilities, obligations, settlements, judgments, awards, government fines, penalties, interest, losses, costs, damages and expenses, including reasonable attorneys’ fees and expenses, appellate bonds and court costs (collectively, “Losses”), sustained or incurred by any of the Indemnified Parties under this Section 9.1.

9.2   Proprietary Rights Infringement Indemnification.

Provider will defend Customer against any and all Claims arising out of or related to Customer’s authorized use of the Software pursuant to and for the purposes set forth in these Terms, and indemnity Customer for any Losses finally awarded arising from any infringement or misappropriation of a registered United States intellectual property right arising from Customer’s authorized use of the Software. If the Software, or any part thereof, are found to infringe or misappropriate a third party’s registered intellectual property rights, and the use of said Software is enjoined, then Provider will, at its expense, either procure for Customer the right to continue using the Software, or replace the Software with a non-infringing product or service of equivalent functionality and performance, or modify the Software so it becomes non-infringing without adversely impacting functionality or performance. Provider’s liability and obligations under this Section 9.2 will be excused to the extent such liability or obligations arose as a result of the Software: (i) having been modified or altered by anyone other than Provider or its representatives without Provider’s direction or approval; (ii) having been subject to misuse by Customer in a manner not reasonably contemplated by the Documentation, Ordering Document or these Terms; or (iii) having been used in combination with any software or hardware not provided by Provider and the Claim would not have occurred but for such combination.

9.3   Procedure.

If any Claim or action is asserted that would entitle a party to indemnification pursuant to this Article 9 (a “Proceeding”), the party who seeks indemnification will give written notice thereof to the other party (the “Indemnitor”) promptly (and in any event within fifteen (15) calendar days after the service of the citation or summons); provided, however, that the failure of the party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that Indemnitor demonstrates actual legal prejudice by such failure. Indemnitor may elect to direct the defense or settlement of any such Proceeding by giving written notice to the party seeking indemnification, which election will be effective immediately upon receipt by the party seeking indemnification of such written notice of election. The Indemnitor will have the right to employ counsel reasonably acceptable to the party seeking indemnification to defend any such Proceeding, or to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided that the Indemnitor will not settle, or consent to any entry of judgment in, any Proceeding without obtaining either: (i) an unconditional release of all the parties seeking indemnification (and its Affiliates and each of their respective officers, directors, employees and agents) from all liability with respect to all claims underlying such Proceeding; or (ii) the prior written consent of the party seeking indemnification. A party seeking indemnification will not settle, or consent to any entry of judgment, in any Proceeding without obtaining the prior written consent of the Indemnitor. The parties will fully cooperate with each other in any such Proceeding and will make available to each other any books or records useful for the defense of any such Proceeding.

10.   ARTICLE 10 – LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY, ITS LICENSORS, SUPPLIERS AND/OR SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCREASED DAMAGES OR DAMAGES TO BUSINESS REPUTATION, DAMAGES ARISING FROM LOSS OF BUSINESS WITH THIRD PARTIES, OR LOSS OF PROFITS FROM TRANSACTIONS WITH THIRD PARTIES, COST OF CAPITAL, CLAIMS OF CUSTOMERS FOR SERVICE INTERRUPTIONS OR FAILURE OF SUPPLY, AND COSTS AND EXPENSES INCURRED IN CONNECTION WITH LABOR, OVERHEAD, TRANSPORTATION, INSTALLATION, OR REMOVAL OF EQUIPMENT OR PROGRAMMING OR SUBSTITUTE FACILITIES OR SUPPLY RESOURCES, OR WILLFUL INFRINGEMENT BY THE OTHER PARTY, WHETHER ANY OF THE FOREGOING ARE FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES OR LOST PROFITS MIGHT ARISE. REGARDLESS OF THE LEGAL THEORY OF THE CLAIM, PROVIDER’S MAXIMUM LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO PROVIDER UNDER THE APPLICABLE ORDERING DOCUMENT UNDER WHICH THE CLAIM AROSE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE.

11.   ARTICLE 11 – MISCELLANEOUS

11.1   Notices.

Any written notice required or permitted to be delivered pursuant to these Terms or any Ordering Document will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) on the date of receipt if delivered by United States mail, registered or certified mail, return receipt requested, postage prepaid; or (c) on the date of receipt if delivered by a national overnight courier, provided that confirmation of such overnight delivery is received, in each case addressed to the addresses set forth on the first page of these Terms, or to such other address as may be specified by either party hereto upon notice given to the other.

11.2   Binding Nature, Assignment and Subcontracting.

These Terms and each Ordering Document will be binding on the parties and their successors and permitted assigns. Except as provided in this Section 11.2, neither party will assign, transfer, subcontract or delegate any of its rights, duties or obligations under these Terms or any part thereof, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the above, Provider reserves the right to assign these Terms or any Ordering Document without consent of Customer in the event of a merger, corporate restructure, or a sale of all or substantially all of its assets. Provider reserves the right to delegate its performance to one or more subcontractors without further consent or authorization of Customer; provided, Provider shall remain responsible for the performance of such subcontractors work to Customer.

11.3   Severability; Waiver.

If any provision is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable any other part, but these Terms and each Ordering Document will be construed as not containing the particular provision or provisions held to be invalid or unenforceable. No delay or omission by either party hereto to exercise any right occurring upon any noncompliance or default by the other party with respect to any of the terms will impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other will not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained.

11.4   Non-Exclusivity.

These Terms are non-exclusive. Nothing in these Terms restricts either party from developing, marketing, selling, licensing, and/or distributing its products or services in the normal course of business or through its standard sales channels.

11.5   Insurance.

Provider shall, at its own expense, carry and maintain, during the performance of its duties or provision of the Software or Services under these Terms, insurance coverages that it deems sufficient to cover Provider’s duties hereunder and which are consistent with the types of coverages ordinarily secured for a provider of similar services as Provider.

11.6   Use of Logo.

Customer grants Provider permission to display Customer’s name and logo in Provider’s list of current customers on marketing materials and on its website. Customer may withdraw this permission as to any such use that Customer reasonably believes missuses or misrepresents such name or logo.

11.7   Governing Law; Exclusive Jurisdiction.

These Terms and each Ordering Document will be governed by the laws of the State of Kansas (excepting any conflict of laws or provisions which would serve to defeat application of Illinois substantive law).

11.8   Entire Agreement; Modification.

These Terms and each Ordering Document to which these Terms are incorporated into as a hyperlink, together with all of the exhibits, schedules, attachments and addenda hereto or thereto, sets forth the entire, final and exclusive agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties. In the event of a conflict, the terms of these Terms will control unless expressly overridden by the provisions of the Ordering Document that references that provision being overridden. These Terms and Ordering Documents may be modified only pursuant to a writing executed by both parties. No party hereto will make any representations or warranties or incur any liability on behalf of the other. No party is the agent, representative or partner of the other party.

11.9   Counterparts; Signatures.

These Terms, as incorporated into an Ordering Document via hyperlink, may be executed in one or more duplicate counterparts, all of which together will be deemed one and the same instrument. Counterparts may be executed in either original, faxed or pdf form, and the parties hereby adopt as original any signatures received via fax or pdf.

Last updated: March 4, 2025