1.1 General. Subject to Customer’s payment of all fees due to Company, Company shall provide Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right for Customer’s Authorized Users to access and use Company’s cloud-based, proprietary software solution (“Services”) for the Customer’s internal business purposes subject to the terms and conditions herein, and, if applicable, certain devices, hardware as a service offering, and physical technical products (collectively the “Products”) and/or implementation, training, or other professional services (“Professional Services”). The Services, and the hardware as a service offering, may be operated and hosted by Company, an affiliate, or a third party. Customer is responsible for obtaining sufficient network connectivity and bandwidth to access and use the Services. Customer’s access to the Services shall be limited to the number of licenses for Authorized Users as agreed to in advance by Company, provided, that, (a) if the Customer is on a month-to-month usage plan (with billing recurring monthly), Customer may increase or decrease its number of Authorized Users upon the start of a new month and (b) if the Customer is on an annual or longer-term usage plan (with an annual or quarterly recurring payments), the Customer may only increase the number of Authorized Users subject to the payment of additional fees as may be invoiced as usage increases. All access, use, delivery, and performance of the Products and Professional Services are subject to Company’s then-current documentation and policies. Except for the limited right to use the Products as set forth herein, all rights, interest, and title in and to the Products shall remain with Company or its licensors.

1.2 Authorized Users. Customer shall ensure that each Authorized User agrees to abide by the terms and conditions of the Agreement. Customer is responsible for all Authorized Users’ access to and use of the Services, and all use of Customer’s account and login credentials. Customer is responsible for maintaining the confidentiality of all usernames, passwords, and other log-in credentials used to access or use the Services. Customer will promptly notify Company of any misuse or unauthorized use of log-in credentials or other unauthorized access to or use of the Services of which Customer suspects or becomes aware.

1.3 Use of the Services and Products. By accessing and/or using the Services or Products, Customer represents and warrants that Customer and its Authorized Users will not directly or indirectly (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, or algorithms of the Services, or any documentation or materials related to, or provided with, the Services or Products, (b) modify, translate, or create derivative works based on the Services, (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, (d) access, use, or otherwise exploit the Services or Products to build or support, and/or assist a third party in building or supporting, services or products competitive to the Services or Products, or (e) remove any proprietary notices or labels from the Services or Products. Customer and its Authorized Users will use the Services or Products only for Customer’s internal business purposes per Company’s documentation and policies, and not for the benefit of a third party.

1.4 Supplemental Terms for Hardware as a Service Offering. In the event Company makes its hardware as a service offering (“HAAS”) available to Customer, Customer’s access and use of the HAAS shall be subject to the Agreement and/or any supplemental terms Company provides to Customer. The HAAS will be available only on a subscription basis. All HAAS subscriptions shall have a one (1) year commitment and be subject to automatic renewal of successive one (1) year periods unless either Party opts out of such renewal within thirty (30) days prior to the start of a renewal period. In the event Customer cancels a HAAS subscription prior to the end of the then-current subscription period, all fees owed for the remainder of the cancelled subscription period shall become immediately due and payable. Customer must report any issues with the HAAS to Company’s technical support team within twenty-four (24) hours of discovery via telephone number or email address Company provides to Customer or by creating a support ticket on Company’s webpage. Once an issue is reported, Company’s support team will attempt to troubleshoot and fix the issue, provided, that, if the support team is unable to fix such issue, Company shall act in accordance with Company’s standard replacement and refund policies and procedures. Except for the limited right to use the HAAS, the Agreement does not convey any additional rights or ownership in and to the HAAS to Customer.

2.1 Fees. In consideration for the limited right provided herein, Customer will pay Company the fees for the Services, Products, or Professional Services as set forth in an applicable invoice (“Fees”). All Fees shall be billed in advance and Customer shall pay such Fees as set forth in a price quotation, ordering document or agreement.

2.2 Payment Terms. All payments shall be made in United States Dollars by ACH bank transfer, check or credit/debit card, without any deduction. All payments are non-cancellable and non-refundable. If Customer chooses to pay by ACH bank transfer, Customer hereby authorizes Company to charge Customer’s financial account or payment card on file for all owed Fees.

2.3 Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use, and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer shall not withhold any Taxes or other deductions and shall pay the full amounts due to Company.

3.1 Company Technology. Customer acknowledges that it is obtaining only a limited right to use the Services on a hosted basis. As between Company and Customer, Company and its suppliers or licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in and to the Services, including any and all related and underlying software (including mobile applications, extensions and interfaces), databases, technology, and all copies, modifies, and derivative works thereof, the documentation, and all system performance data and machine learning, including machine learning algorithms, data used for optimization and services improvement, and the results and output of such machine learning (collectively, “Company Technology”). No right or license is granted hereunder to Customer under any trademarks, service marks, trade names, or logos.

3.2 Customer Data. Company acknowledges and agrees that as between Customer and Company, Customer shall retain all of its right, title, and interest in and to the data or information Customer and its Users transmit to the Services (“Customer Data”), and the Agreement in no way conveys to Company any right, title, or interest in and to the Customer Data other than the limited right to use the Customer Data in accordance with the terms and conditions herein.

3.3 Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the Services, Products, or Professional Services to Company (“Feedback”). Customer agrees that Company may freely use, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise.

All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party’s confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under the Agreement or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. Company may disclose the terms of the Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Company’s confidential information includes the Services and Company Technology.

5.1 Limited Warranties. Company warrants that (a) it will provide the Services in a professional and workmanlike manner and (b) the Services, if used in accordance with the terms and conditions herein, will substantially conform to the documentation Company provides to Customer. Customer’s sole remedy for Company’s breach of the limited warranties in this Section 5.1 shall be that Company will remedy the applicable error, or if Company determines such remedy to be impracticable, Customer shall have the right to terminate the Agreement as provided in Section 8.2.

5.2 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 5.1, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES, PRODUCTS, PROFESSIONAL SERVICES, AND COMPANY TECHNOLOGY ARE PROVIDED “AS IS” WITH NO ADDITIONAL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, LOSS OF DATA, TITLE, NON-INFRINGEMENT, OR LEGALITY OF THE USE OF THE SERVICES OR PRODUCTS. COMPANY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COMPANY. COMPANY DOES NOT WARRANT THAT THE SERVICES OR PRODUCTS WILL BE FREE FROM VIRUSES OR OPERATE ERROR FREE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT THE SERVICES, PRODUCTS, OR PROFESSIONAL SERVICES SHALL MEET YOUR EXPECTATIONS OR REQUIREMENTS. WHILE THE MANUFACTURERS OR LICENSORS OF PRODUCTS MAY PROVIDE CERTAIN WARRANTIES AND OTHER TERMS AND CONDITIONS WITH RESPECT TO THE PRODUCTS, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING SUCH THIRD-PARTY PRODUCTS.

6.1 Company Indemnification. Subject to the terms and conditions herein, Company shall defend and indemnify Customer against any third-party claims, actions, proceedings, demands, lawsuits, or disputes (collectively, “Claims”) and hold Customer harmless from any damages, liabilities, costs, or expenses (including reasonable attorneys’ fees and costs) (collectively, “Losses”) alleging that the Services, when used as authorized herein, directly infringes a third party’s intellectual property. If Customer’s use of the Services are, or in Company’s opinion are likely to be, enjoined due to the type of infringement specified above, Company may, in its sole discretion: (a) substitute or modify the Services so that it becomes non-infringing without compromising its material functionally, (b) procure for Customer the right to continue using the Services, or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer any pre-paid fees for the Services associated with the then-remaining Term. The foregoing indemnification obligation of Company shall not apply: (i) if the Services are modified without Company’s prior written approval, (ii) the Services are combined with services or processes not authorized by Company in writing, (iii) related to misuse of the Services, (iv) to any third-party components or Customer Data, or (v) if the infringement relates to Company’s compliance with specifications or other requirements of Customer. THIS SECTION 6.1 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

6.2 Customer Indemnification. Customer shall defend and indemnify Company against any Claims and hold Company harmless from any Losses arising out of or relating to (a) Customer’s or any Authorized User’s use of the Services or Products in violation of the terms and conditions herein or applicable law or (b) Customer Data.

6.3 Procedure. The obligations of each indemnifying Party are conditioned upon receiving from the Party seeking indemnification (a) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying Party to respond without prejudice), (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim, and (c) all reasonable necessary cooperation of the indemnified Party, at indemnifying Party’s expense.

IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OPPORTUNITIES, LOSS OF DATA, REGULATORY EXPENSES, OR LOSS OF REVENUE) ARISING IN CONNECTION WITH THE AGREEMENT, SERVICES, PRODUCTS, OR PROFESSIONAL SERVICES, BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE SERVICES, PRODUCTS, OR PROFESSIONAL SERVICES GIVING RISE TO LIABILITY, OR IF NOT RELATED TO A SPECIFIC OFFERING, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE LIABILITY FIRST AROSE.

8.1 Term. The term of the Agreement shall commence on the date Company provides the Services and/or Products to Customer and, unless earlier terminated as set forth herein, shall continue for the period agreed in the applicable ordering document (the “Initial Term”); provided that the term shall thereafter automatically renew for successive periods as and if set forth in an ordering document (the “Renewal Term”), unless either Party provides the other Party at least thirty (30) days’ advance written notice of its desire to not renew prior to the end of the then-current term. The Initial Term and any Renewal Term may be collectively and individually referred to as the “Term” herein.

8.2 Termination. Either Party may terminate the Agreement if the other Party materially breaches its obligation hereunder and fails to cure such breach within thirty (30) days after receipt of written notice from the non-defaulting Party. Company may also terminate the Agreement or suspend Customer’s or an Authorized User’s access to the Services immediately (a) if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing, (b) if Customer is past due on any owed Fees and fails to cure within twenty-one (21) days’ notice, (c) to prevent violation of the Agreement or misuse of the Services or Products, or (d) as necessary to comply with applicable laws.

8.3 Effect of Termination. Upon termination or expiration of the Agreement (a) subject to payment of all amounts due and owing, upon Customer’s written request, Company will make the Customer Data in Company’s possession available for Customer to download. Company is not obligated to maintain Customer Data for more than thirty (30) days following termination or expiration of the Agreement and (b) Customer will (i) discontinue all access and use of the Services and Products and all related rights granted to Customer herein will terminate immediately, automatically, and without notice and (ii) Customer shall remain liable for all payments due to Company with respect to the period ending on the date of termination (including any fees and expenses that had not been invoiced prior to termination), provided that, if the Agreement is terminated due to Customer’s uncured breach, Customer shall pay Company the full amount of any outstanding Fees or the like for the remainder of the then-current Term. Sections 3, 4, 5, 6.2, 7, 8.3, and 9 will survive any termination or expiration of the Agreement.

9.1 Biometric Information Privacy. Each Party expressly acknowledges and agrees that information processed in connection with the Agreement may include or constitute biometric information, as defined by applicable law “Biometric Information”. Each Party will process Biometric Information in compliance with applicable state and federal data protection laws and each Party’s applicable privacy policies. Customer will obtain or cause to be obtained the prior, affirmative, written consent (“Written Consent”), from each officer, employee, staff, team member, contractor, or agent (individually, a “Data Subject”) authorizing the transfer of Biometric Information to Company for the Data Subject’s employment-related purposes as required under applicable law, and Customer shall provide to Company, upon Company’s reasonable written request, evidence of such Written Consents. For the avoidance of doubt, the Customer is responsible for obtaining or causing to be obtained any and all consents or approvals necessary for Company to provide the Services and Products and use the Biometric Information as permitted pursuant to the Agreement. Notwithstanding any other provision of the Agreement, neither Party will use or disclose Biometric Information except in accordance with the Agreement, their respective applicable privacy policies, and the applicable data protection laws, and such use or disclosure will be sole as needed for the permitted uses and for no other purposes unless the Parties otherwise agree in writing. Customer acknowledges and understands that the regulatory landscape surrounding the collection of Biometric Information through new technologies is constantly changing, and Customer shall comply with any such changes in the law to the extent they apply to Customer’s obligations under the Agreement. Customer will reimburse Company for any reasonable expenses Company incurs in notifying individuals of a breach or violation of applicable law caused by Customer, or its subcontractors or agents, and for reasonable expenses, Company incurs in mitigating harm to those individuals. Customer also will defend, hold harmless and indemnify Company and its employees, agents, officers, directors, shareholders, members, contractors, parents, and subsidiary and affiliate entities, from and against any claims, losses, damages, liabilities, costs, expenses, penalties, or obligations (including attorneys’ fees), which Company may incur due to a breach or violation of applicable law caused by Customer, or its subcontractors or agents.

9.2 Compliance with Laws. Customer, and its Authorized Users, shall use the Services and Products in compliance with all applicable laws, statutes, ordinances, and regulations, including state and federal data protection laws. Customer shall obtain all necessary licenses, certificates, permits, approvals, or other authorizations required by applicable laws, statutes, ordinances, and regulations.

9.3 Publicity. Company may use the Customer’s name and the existence of the Agreement for its business purposes including, but not limited to, marketing and advertising.

9.4 Assignment. Customer shall not assign or transfer the Agreement or any rights or obligations under the Agreement without Company’s prior written consent. A change in control constitutes an assignment under the Agreement. Any unauthorized assignment or transfer shall be void and constitutes grounds for immediate termination of the Agreement by Company. The Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

9.5 Governing Law; Jurisdiction and Venue. The Agreement is governed by and construed in accordance with the laws of the State of Florida, without giving effect to its principles of conflicts of law. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the competent federal or state courts in the State of Florida.

9.6 Force Majeure. Except for Customer’s payment obligations hereunder, neither Party is, and may not be construed to be, in breach of the Agreement for any failure or delay in fulfilling or performing the Services, when and to the extent such failure or delay is caused by or results from acts beyond a Party’s reasonable control, including: strikes, lock-outs, or other labor disputes; shortages of or inability to obtain labor, energy, or supplies, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Company’s local network; any pandemic; any natural disaster, including earthquake, extraordinary storm or weather conditions; nuclear, chemical or biological contamination; and any explosion, fire and flooding; or other acts of God (each a “Force Majeure Event”). The Parties will use reasonable efforts to mitigate the effects of such Force Majeure Event.

9.7 Third-Party Beneficiaries. No third party is intended to be a beneficiary of the Agreement.

9.8 Hosting Providers. Customer acknowledges that the Services are hosted by third-party hosting providers (the “Hosting Providers”).  Company may change its Hosting Providers at any time.  Customer’s use of the Services is subject to any applicable restrictions or requirements imposed by the Hosting Providers.  Notwithstanding any other provision of the Agreement, Company shall not be liable for any problems, failures, defects or errors with the Services to the extent caused by the Hosting Providers.

9.9 Notice. Customer agrees that an email to Customer’s email address on record will constitute formal notice under the Agreement.

9.10 Independent Contractors. The Parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

9.11 Severability. If any provision of the Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that the Agreement shall otherwise remain in effect.

9.12 Entire Agreement. The Agreement contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.