Lobby6 Software as a Service Agreement

This Software as a Service Agreement (“Agreement”) is made and entered into as of (“Effective Date”) by and between PFCU Technology Solutions, LLC an Oregon limited liability company doing business as CU-Apps (“CU-Apps”) and located at (“Customer”).

Whereas CU-Apps owns certain software systems that can be used by Customer;

Whereas, CU-Apps’s systems can be customized according to a Customer’s requirements; and

Whereas CU-Apps can “white-label” its application for use by Customer.


Agreement

The Parties agree as follows:

1. Definitions

The following capitalized terms shall have the meanings ascribed to them in this Section 1.

1.1 "Customer"

means the Party named as Customer above and its Users, provided that Party named as Customer above has sole responsibility for compliance with all of its and its Users’ obligations under this Agreement, including payment of all amounts due to CU-Apps.

1.2 “Customer Data”

means all electronic data or information furnished, disclosed, or otherwise made available to CU-Apps by or on behalf of Customer or its Users pursuant to this Agreement, including such data that is collected, processed, or generated by, or stored with, the Services.

1.3 "Documentation"

means any user guides, operation manuals, specifications, and other related information and documentation, whether in print or machine-readable media, supplied to Customer in connection with the Services.

1.4 “Licensed Technology”

means the Lobby 6 software and related materials as more fully described in Exhibit A and provided to Customer by CU-Apps for installation, integration, and use in connection with the Services, including without limitation any and all copyrighted material such as codes, software, programs, Documentation, or any other written or recorded material that could be registered as copyrighted material, whether or not actually registered.

1.5 “Services”

means Customer’s licensed use of CU-Apps’s intellectual property, website and server available by CU-Apps for use by Customer, and its Users, as described on Exhibit A, which may be delivered online or in Web-based or other applications and platforms provided via connection, application, or websites or as described in, or are ordered by Customer under, an Order Form, including associated offline components, all updates, and support that CU-Apps makes available to customers at no additional charge.

1.6 “Use”

(whether or not capitalized) means: (i) in reference to the Services, to open, view, and utilize some or the full functionality of a system, software, or other materials, including the ability to input, manipulate, and download data, files, and other information, without directly possessing, hosting, or storing the relevant software; and (ii) in reference to the Licensed Technology, means to install and operate the Licensed Technology and to invoke, interact with, and execute part or the full functionality of the Licensed Technology. Unless otherwise expressly provided, Use refers only to such activities in relation to the executable version of the corresponding system, software, or program materials in operation for the Permitted Purpose and excludes copying, modifying, enhancing, or creating derivative works except as necessarily occurs electronically in downloading, storage, transmission, hosting, compiling, processing, and execution of such system, software, or program materials.

1.7 “User(s)”

means the Customer for whom a subscription to a Service has been purchased; and such individuals who are authorized by Customer to use the Services; and Customer employees who have been supplied user identifications and passwords by Customer (or by CU-Apps at Customer's request). Users may include but are not limited to employees, consultants, contractors, and agents of Customer, or third parties with which Customer transacts business.

2. Services

2.1 Service Subscription.

It is the intention of the Parties that all subscriptions for the Services purchased by Customer, including its Users, will be issued pursuant to and governed by this Agreement. CU-Apps will make the Services available to Customer pursuant to this Agreement and the applicable Order Forms during each subscription term. Customer agrees that its subscription hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CU-Apps regarding future functionality or features, other than the continued provision of the Services in accordance with this Agreement.

2.2 User Subscriptions.

Upon commencement of the Term, CU-Apps will deliver to Customer an application administrator user ID, password, and other account information (“Account Access Information”) necessary for Customer or its Users to access the Services. Thereafter, Customer will be responsible for creating and managing Account Access Information for Users or otherwise enabling Users to register and open an account through Customer. Customer will not share, reassign, divulge, or disclose any Account Access information except in connection with Customer's or its Users’ own use of the Services. Unless otherwise specified, Services are purchased as or for User subscriptions and may be accessed only by authorized Users.

2.3 CU-Apps Responsibilities.

CU-Apps will: (i) provide to Customer basic support for the Services at no additional charge, or, in the alternative, upgraded Professional Services support if purchased by Customer in accordance with CU-Apps’s technical support policies in effect from time to time; (ii) use commercially reasonable efforts to make the Services available in accordance with the Service Level Agreement attached as Exhibit B., if any, except in the occurrence of planned downtime or any unavailability caused by circumstances beyond CU-Apps's reasonable control, including without limitation acts of nature, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CU-Apps’s employees), or Internet service CU-Apps failures or delays.

2.4 Customer Responsibilities.

Customer will: (i) be responsible for Users' compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Data provided or created by Customer and of the means (other than the Services) by which it acquired Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify CU-Apps promptly of any such unauthorized access or use; and (iv) use the Services only in accordance with applicable laws and government regulations. Customer is responsible for, and CU-Apps's obligation to provide the Services is subject to, Customer's fulfillment of the responsibilities and full compliance with this Agreement. Customer will not: (a) make the Services available to anyone other than Users or as otherwise contemplated by this Agreement; (b) sell, resell, rent, or lease the Services; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (e) attempt to gain unauthorized access to the Services or their related systems or networks. Customer accepts responsibility for all activity occurring under the Account Access Information. Customer will notify CU-Apps promptly upon discovery of any suspected unauthorized use or possession of any Account Access Information.

2.5 Capacity and Infrastructure.

During the term of the Services, CU-Apps will provide and maintain adequate capacity (including, without limitation, servers, storage, bandwidth, CPU time, and support personnel) and infrastructure (including heating/cooling, electrical power, server hardware, network infrastructure, and bandwidth), as necessary to support the Services.

2.6 Backup Management.

During the term of the Services, CU-Apps will perform regular data backups of any Company Data stored with CU-Apps as part of the Services. Such back-ups will be encrypted and stored in a secure location.

2.7 Security.

During the term of the Services, CU-Apps will perform regular data backups of any Company Data stored with CU-Apps as part of the Services. Such back-ups will be encrypted and stored in a secure location.

2.7.1

The Services will be hosted and carried out in an environment which employs shared infrastructure while segregating Company Data. Hardware infrastructure components, including without limitation firewalls, load balancers, web servers, database servers, and storage equipment are shared across multiple clients. Service levels and operational procedures are standardized for all clients due to the shared nature of CU-Apps's hosting environment.

2.7.2

CU-Apps will employ security procedures and administrative, technical, and physical safeguards to reasonably protect its hosting environment, including any Company Data stored thereon, consistent with the level of protection provided by generally accepted industry standards in the SaaS and cloud security industry.

2.7.3

CU-Apps will implement specific security controls and procedures for the Services, including: (i) testing through a documented quality assurance process; (ii) regular, automated vulnerability scanning of infrastructure components with commercial scanning tools, with tracked mitigation efforts; (iii) administrative, technical, and physical network access control restrictions for Platform components; and (iv) twenty-four hours a day, seven days a week monitoring of security device controls (e.g., firewalls, intrusion prevention system, etc.).

2.7.4

CU-Apps will monitor and log all system access to the Services to produce an audit trail that includes without limitation web server logs, application logs, system logs, and network event logs. Such logs are CU-Apps Confidential Information, but will be disclosed to Customer upon request as necessary to comply with applicable law and CU-Apps's compliance with its Service Levels.

2.7.5

CU-Apps will implement industry standard personnel and administrative controls to mitigate security risks, including without limitation: (i) background checks on CU-Apps employees with administrator access to CU-Apps's hosting platform; and (ii) limiting access to CU-Apps's hosting platform to authorized individuals.

2.8 Business Continuity.

CU-Apps will use commercially reasonable efforts to implement and carry out its business plan. Customer understands that the Services rely on public Internet infrastructure. Issues which catastrophically affect the Internet infrastructure will affect availability of the Services and are out of CU-Apps's control. In case of any such outage, CU-Apps will use commercially reasonable efforts to restore the Services as soon as practicable to the extent within CU-Apps's control to do so.

3. Changes and Modifications.

3.1 Scheduled Changes.

During the term of the Services, CU-Apps reserves the right to make modifications, including upgrades, patches, revisions, or additions to its hosting environment and the Licensed Technology. If CU-Apps thereby significantly modifies, revises, adds to, or otherwise changes the functionality of the Services in any material respect (collectively, a “Change”), CU-Apps will notify Customer at least sixty (60) days prior to such Change. CU-Apps reserves the right to amend any schedules in order to reflect Changes, but no changes shall modify the rights and liabilities of the parties herein. However, CU-Apps may make Changes without such notice and testing periods to the extent CU-Apps deems immediate action is required to: (i) correct or avoid identified security vulnerabilities and issues that have or are reasonably likely to become Severity 1 or Severity 2 errors affecting the Hosted Services; or (ii) comply with applicable law.

3.2 Configuration Changes.

During the term of the Services, CU-Apps reserves the right to modify settings, configuration files, reports, and similar aspects of the Services as CU-Apps deems necessary to meet Company requirements and maintain the operation of the Services. Such configuration changes which do not materially affect existing functionality will not be subject to the notice and testing periods identified in Section 3.1 above.

4. Fees and Payment.

4.1 User Fees.

Customer will pay ongoing license fees per User per month for the duration of the Term, with a minimum commitment specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form; (i) fees are quoted and payable in United States dollars; (ii) fees are based on services purchased and not actual usage; (iii) payment obligations are non-cancelable, and fees paid are non-refundable; and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof, therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

4.2 Integration and Configuration Fees.

Customer will pay CU-Apps a separate fee as specified in the Order Form to integrate its Server/Middleware with Customer's internal systems and external vendors to provide functionality for Users.

4.3 Invoicing and Payment.

Fees will be invoiced monthly in advance and otherwise in accordance with the relevant Order Form with fees for all Order Forms combined into a single billing cycle. Unless otherwise stated in the Order Form, fees are due net fifteen (15) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information in the Services.

4.4 Overdue Charges.

If any undisputed amounts invoiced hereunder are not received by CU-Apps by the due date, then at CU-Apps's discretion: (i) such charges may accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and, or in the alternative (ii) CU-Apps may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above. If a bona fide good faith dispute exists regarding amounts due on an invoice, Customer will report the disputed items to CU-Apps and work diligently and in good faith to promptly resolve such dispute. Customer will pay the amount, if any, mutually agreed to be due with respect to any disputed items promptly after resolution of the dispute.

4.5 Suspension of Service.

If any charge owing by Customer is fifteen (15) days or more overdue or if Customer is in default of any other provision of this Agreement, CU-Apps may, without limiting its other rights and remedies, suspend any or all of the Services until Customer is in compliance with its obligations.

4.6 Taxes.

Unless otherwise stated, CU-Apps's fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including without limitation value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If CU-Apps has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.7, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides CU-Apps with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, CU-Apps is solely responsible for taxes assessable against it based on its income, property, and employees.

5. Proprietary Rights.

5.1 License to Service.

Subject to the terms and conditions of this Agreement, CU-Apps grants Customer, for the term of the corresponding Services, a world-wide, non-exclusive, non-transferable license to access and use the Services, Documentation, and data associated with the Services for the subscription term(s) assigned for such Services. Such access and use are permitted only by Users (which may or may not be Customer employees) during the term of the subscription applicable to such Users.

5.2 License to Licensed Technology.

Subject to the terms and conditions of this Agreement, CU-Apps grants Customer, for the term of the corresponding Services, a non-exclusive, non-transferable license to permit its Users to use the Licensed Technology on up to, and no more than, one device. Customer may, at no additional charge, copy the Licensed Technology in connection with the Permitted Purpose as necessary for archival, legal, regulatory, and backup purposes, so long as: (i) all proprietary and copyright notices, markings, or legends that appear on or are delivered with the Licensed Technology accompany each copy; and (ii) Customer accounts for each copy and each copy’s location at CU-Apps's request and permanently deletes the copies when no longer required or upon termination of the applicable license.

5.3 Reservation of Rights.

Subject to the limited rights expressly granted hereunder, as between CU-Apps and Customer, CU-Apps reserves all rights, title, and interest in and to the Services and Licensed Technology, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.4 Restrictions.

Customer will not: (i) modify or create derivative works based on the Services or Licensed Technology, except for the use of reports, analysis, and other output produced by the Services when used for the Permitted Purposes; (ii) copy, frame, or mirror any part or content of the Services, other than copying or framing on Customer's own intranets or otherwise for its own internal business purposes for Permitted Purposes; (iii) reverse engineer the Services or Licensed Technology; or (iv) access the Services or use the Licensed Technology to build or modify a similar or competitive product or service or copy any features, functions, or graphics of the Services.

5.5 Ownership.

As between CU-Apps and Customer, CU-Apps exclusively owns all right, title, and interest in and to the Services, the Documentation, and the Licensed Technology, including any Changes to Services, Licensed Technology, or CU-Apps's hosting environment. CU-Apps will retain exclusive ownership of (including all Intellectual Property Rights contained therein) CU-Apps’s created or developed ideas, concepts, know-how, techniques, expertise, tools, methods, or other materials used in connection with performing the Professional Services: (i) that have been previously developed or are separately developed by CU-Apps; (ii) that represent CU-Apps’s improvement, change, modification, or enhancement thereof; (iii) that are authored, created, invented, developed, or reduced to practice by CU-Apps in the course of performing the Services or Professional Services; or (iv) that are of general application and not unique or specific to Customer.(“CU-Apps Intellectual Property”). Customer disclaims any interest in CU-Apps Intellectual Property.

5.6 Suggestions.

CU-Apps will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services and Licensed Technology any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Users, relating to the operation of the Services and Licensed Technology, excluding the Customer Data or any other Confidential Information of Customer pertaining to its business and specific differentiating deliverables that would harm Customer’s competitive interests.

5.7 White-Label.

The Licensed Technology may be branded under the name of Customer. In such case, the name, trademark, trade name, trade dress, designs, and logos of CU-Apps shall not appear on the application. To the extent that Customer uses its name, trademark, trade name, trade dress, designs, and logos, such marks shall remain the property of Customer.

5.8 CU-Apps Rights to Data.

Customer hereby grants CU-Apps a perpetual non-exclusive, royalty-free right and license to copy and use any information and data supplied by Customer or collected on behalf of Customer solely as necessary for use of the Services or Licensed Technology by Customer. Customer hereby grants CU-Apps a perpetual non-exclusive, royalty-free right and license to copy and use Customer’s anonymous, data to create analytical trend data (in anonymous form) that may be shared with or sold to third parties. Customer acknowledges that the Customer may permit its name may appear in a list of participating organizations for reports containing such aggregate analytical trend data.

5.9 CU-Apps Rights to Data.

Customer hereby grants CU-Apps a perpetual non-exclusive, royalty-free right and license to copy and use any information and data supplied by Customer or collected on behalf of Customer solely as necessary for use of the Services or Licensed Technology by Customer. Customer hereby grants CU-Apps a perpetual non-exclusive, royalty-free right and license to copy and use Customer’s anonymous, data to create analytical trend data (in anonymous form) that may be shared with or sold to third parties. Customer acknowledges that the Customer may permit its name may appear in a list of participating organizations for reports containing such aggregate analytical trend data.

6. Confidentiality.

6.1 Definition of Confidential Information.

As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer will include Customer Data; Customer’s user accounts, and member data and any information or data supplied by Customer Confidential Information of CU-Apps will include the Services; and Confidential Information of each Party will include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) is or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is or was received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is or was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

6.2 Protection of Confidential Information.

Except as otherwise permitted in writing by the Disclosing Party the Receiving Party will: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access to perform this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.3 Protection of Customer Data.

As between CU-Apps and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer Data is deemed Confidential Information of Customer under this Agreement. CU-Apps will not access and will cause its Affiliates, agents, contractors, and representatives not to access, Customer's user accounts, including Customer Data, except to respond to Customer's service or technical problems or at Customer's request. Without limiting the above, CU-Apps will use commercially reasonable efforts to maintain the security and integrity of the Services and Customer Data. CU-Apps will not: (i) modify Customer Data; (ii) disclose Customer Data except as compelled by law in accordance with the “Compelled Disclosure” section below or as expressly permitted in writing by Customer; or (iii) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer's request in connection with customer support matters. In addition, CU-Apps will mask all Customer Data used in any testing or non-production environment in accordance with Customer requirements, unless the testing or non-production environment is subject to the same controls as the production environment. CU-Apps will use commercially reasonable efforts (but not less rigorous than accepted industry standards) and enforce administrative, technical, and physical safeguards to: (i) reasonably protect and maintain the security and confidentiality of any Company Data or Third-Party Data in its possession; (ii) safeguard such Company Data or Third-Party Data from and against loss or theft or unauthorized access, use or disclosure; and (iii) comply in all material respects with applicable laws and regulations. In the event of an actual, threatened, or suspected breach in the security of any Company Data or Third-Party Data in its possession, CU-Apps will take such steps as may be required by applicable law as reasonably necessary to prevent or halt such activity and will promptly notify Company.

6.4 Compelled Disclosure.

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost.

6.5 Cyber Event Incident Response & Reporting.

CU-Apps warrants that it has established and will maintain an incident response program that addresses CU-Apps’s process and actions to detect, investigate, assess, remediate and immediately and periodically report to Customer any attempted or successful cyber event or unauthorized access to Customer’s data, records or Confidential Information. In the event of a cyberattack or any unauthorized access to or use of Customer’s Confidential Information or Customer’s records stored by CU-Apps, CU-Apps shall take immediate and appropriate steps to contain and control the incident to prevent further unauthorized access to Customer’s data, records or Confidential Information. CU-Apps agrees to fully disclose to Customer any information related to a breach or unauthorized access of Customer’s data, records and Confidential Information maintained by CU-Apps and to take appropriate actions to address any incident of unauthorized access, including prompt notice (within 48 hours) to Customer of any incident of a security breach, to enable Customer to expeditiously implement its information security response program. 

7. Warranties, Exclusive Remedies, and Disclaimers.

7.1 Warranty.

CU-Apps warrants that the software will be functional and perform and in a professional workmanlike manner in accordance with the specifications of CU-Apps.

7.2 Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7.3 Mutual Representations and Warranties.

Each Party represents and warrants to the other Party that:

7.3.1

it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;

7.3.2

it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;

7.3.3

the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and

7.3.4

when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8. Mutual Indemnification.

8.1 Indemnification by CU-Apps.

Subject to the provisions of this Agreement, CU-Apps will defend, indemnify, and hold Customer harmless against any loss, damage, or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party: (i) alleging that the use of the Services as contemplated hereunder infringes the U.S. intellectual property rights of a third party; or (ii) based on a breach by CU-Apps of its confidentiality obligations under this Agreement, provided that Customer: (a) promptly gives written notice of the Claim to CU-Apps; (b) gives CU-Apps, at CU-Apps's expense, sole control of the defense and settlement of the Claim (provided that CU-Apps may not enter into any settlement or compromise for any Claim that would adversely affect Customer without Customer's prior written consent); and (c) provides to CU-Apps, at CU-Apps's cost, all reasonable assistance. If there is a material, bona fide claim (or threat of a claim) of infringement, misappropriation, or violation of any intellectual property right or other right of any third party in connection with the Services, CU-Apps will promptly: (1) procure for Customer the right to continue using the Service, as applicable; or (2) replace or modify the Service to make it non-infringing without material adverse impact on the functionality of the Services. If neither of the above remedies is commercially practicable, CU-Apps may terminate the Agreement and refund to Customer a prorated portion of the prepaid fees paid by Customer for Services as measured from the effective date of termination or suspension of service, provided, however, that CU-Apps will provide Customer with no less than two months’ notice prior to such termination (or such shorter period equal to the remainder of the term of this Agreement, if less than two months remain in the term of this Agreement), and that during such period, CU-Apps will continue to provide the Services with no material loss of functionality. CU-Apps's obligation to provide the Services after notice of termination as set forth in the prior sentence will not apply if the provision of such Services, in CU-Apps's sole opinion, would cause CU-Apps to continue to incur damages for infringement. Further, CU-Apps will have no liability to indemnify, defend, or hold Customer harmless if the alleged infringement is based on Customer's use of the Service other than in accordance with this Agreement or Claims resulting solely from Customer's alteration of the Services (excluding CU-Apps-initiated modifications).

8.2 Indemnification by Customer.

Customer will defend CU-Apps against any Claim made or brought against CU-Apps by a third party alleging that the Customer Data or Customer's use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. Customer will indemnify CU-Apps for any damages finally awarded against, and for reasonable attorney's fees incurred by, CU-Apps in connection with any such Claim, provided that CU-Apps: (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases CU-Apps of all liability); and (iii) provides to Customer all reasonable assistance, at Customer's cost.

8.3 Exclusive Remedy.

This Section 8 states the indemnifying Party's sole liability to and the indemnified Party's exclusive remedy against the other Party for any type of Claim described in this section.

9. Limitation of Liability.

9.1 Limitation of Liability.

EXCEPT FOR ANY INDEMNITY OBLIGATIONS UNDER SECTIONS 8.1 OR 8.2 OR LIABILITY DUE TO A BREACH OF SECTION 6 OR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY OR DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4.

9.2 Exclusion of Consequential and Related Damages.

Exclusion of Consequential and Related Damages. EXCEPT FOR ANY INDEMNITY OBLIGATIONS UNDER SECTIONS 8.1 OR 8.2 OR LIABILITY DUE TO A BREACH OF SECTION 6 OR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR DAMAGES RELATED TO UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER'S DATA AS A RESULT OF CU-APPS'S BREACH OF ITS CONFIDENTIALITY, NON-DISCLOSURE, USE, OR SECURITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.3

THE LIMITATIONS IN SECTION 9.1 AND 9.2 WILL NOT APPLY TO ANY REMEDIAL COSTS OR CREDIT MONITORING COSTS REQUIRED TO BE PAID BY CU-Apps IN THE EVENT OF AN INFORMATION SECURITY BREACH FOR WHICH CU-APPS IS RESPONSIBLE UNDER THIS AGREEMENT.

10. Term and Termination.

10.1 Term of Agreement.

This Agreement commences on the Effective Date and continues until for a period of _________________thereafter (the “Term”). The Term shall thereafter renew for successive one (1) year periods, unless terminated by either party upon one hundred twenty (120) days written notice to the other party prior to the end of the Term that said party does not want the Agreement to renew.

10.2 Term of User Subscriptions.

User subscriptions shall commence on the date identified as the start date specified in the applicable Order Form, or on the date the Services go “live,” or on the date the User creates an account with the Customer designated to receive Services, whichever is later.

10.3 Termination for Cause.

A Party may terminate this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; (ii) as provided for in this Agreement; or (iii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors which results in a rejection or termination of this Agreement or a suspension in Services.

10.4 Refund or Payment upon Termination.

Upon any termination for cause by Customer, CU-Apps will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any undisputed fees payable to CU-Apps for the period prior to the effective date of termination.

10.5 Transition Assistance; Return of Customer Data.

CU-Apps will, if so requested by Customer, enter into a SOW under a Professional Services Agreement to provide Customer with such assistance as Customer may reasonably require in transitioning to a new service CU-Apps. If so requested by Customer, CU-Apps will continue to provide any or all of the Services, subject to Customer's payment for those Services at the rates provided in this Agreement, for a period up to six (6) months after either Party gives notice of termination of this Agreement. Upon request by Customer made at any time before or within 45 days after the effective date of termination, CU-Apps will make available to Customer for download, at no additional cost to Customer, a file of Customer Data. After such 45-day period, CU-Apps will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

10.6 Surviving Provisions.

The sections titled “Fees and Payment,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Return of Customer Data,” “Surviving Provisions,” and “General Provisions” will survive any termination or expiration of this Agreement.

11. General Provisions.

11.1 Relationship of the Parties.

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

11.2 Waiver and Cumulative Remedies.

No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies at law or in equity.

11.3 Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

11.4 Assignment.

Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld).

11.5 Governing Law.

This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of Oregon without regard to its conflicts of laws rules.

11.6 Force Majeure.

Neither Party will be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including fire or other casualty, acts of God, strike or labor dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority (a “Force Majeure”). Performance time will be considered extended for a period of time equivalent to the time lost because of any such excused delay. If any Force Majeure endures more than sixty (60) days, the Parties will meet and review in good faith the desirability and conditions of this Agreement, and Customer may terminate the Agreement.

11.7 Entire Agreement.

This Agreement, including all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing (not including transient digital media such as SMS text messages) and signed by the Party against whom the modification, amendment, or waiver is to be asserted.

11.8 Attorneys Fees.

In the event either party commences an action to enforce this Agreement, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.

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