Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR SOFTWARE SUBSCRIPTION TO THE TOVUTI™ BRAND SERVICES.

BY CLICKING ON THE “I ACCEPT” BUTTON OR SIGNING THIS AGREEMENT, YOU ACCEPT THIS AGREEMENT AND AGREE TO ITS TERMS AND CONDITIONS. IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE ACCEPTING THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. YOUR USE OF THE SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS PROVIDED HEREIN. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT AND ALL RELATED DOCUMENTS IN THEIR ENTIRETY BEFORE ACCEPTING.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR EXCEPT WITH OUR PRIOR WRITTEN CONSENT. ONLY AUTHORIZED PERSONS MAY OBTAIN OR UTILIZE ISSUED USERNAMES OR PASSWORDS. YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

THIS AGREEMENT WAS LAST UPDATED BY US ON JANUARY 2, 2019. WE MAY AT ANY TIME REVISE THIS AGREEMENT, WHICH REVISIONS WILL BE EFFECTIVE IMMEDIATELY. WE WILL PROVIDE YOU WITH NOTICE OF ANY SUCH REVISIONS. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE AND TIME IN OUR LOCATION WHEN YOU ACCEPT THIS AGREEMENT.

1. DEFINITIONS

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. This Agreement shall apply to each of Your Affiliates, regardless whether they also use the Services.

Business Days” means any days on which commercial banks in Boise, Idaho are open for business.

Documentation” means any written or electronically transmitted information provided to You by Us in connection with the Services.

Fees” means the amounts payable to Us by You in exchange for the Services You order from Us, as specified in the

Orders and subject to the Terms, and any additional amounts otherwise due and payable under this Agreement or the Terms, including, without limitation, late fees and collection costs.

Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.

Orders” means the purchase orders agreed by Us and You, whether in writing or via electronic communication, that specify the Services ordered by You and to be delivered by Us, the Fees due and payable in exchange therefor and the basis for calculating those Fees, and any applicable delivery or payment terms. As of the date of this Agreement, the only Orders and Services (as defined below) are defined in that certain Tovuti Package Agreement signed by the parties and attached to the Professional Services Agreement, located at at the following URL (https://www.tovutilms.com/psa), as the initial Statement of Work.

Services” means any online, cloud-based or web-based platform and services and any associated mobile applications or offline components that You order from Us.

Terms” means the terms and conditions applicable to Your use of the Services provided by Us. The Terms include, without limitation, all the terms and conditions set forth in this Agreement and all the terms and conditions set forth in one more of the following additional agreements or other documents:

(1) Our “Terms and Conditions of Use”, which governs the use of Our Systems and websites, located at at the following URL (https://www.tovutilms.com/terms);

(2) Our “Privacy Policy”, which governs the use of any private information we gather from Users, located at at the following URL (https://www.tovutilms.com/privacy-policy);

(3) Our “End User License Agreement”, which governs the use of any software licensed from Us, including, without limitation, Our mobile applications downloaded and installed by You, Your entity, the Users, or by Us at Your request and on Your behalf, located at at the following URL (https://www.tovutilms.com/end-user-license);

(5) Our “Professional Services Agreement”, which governs the purchase, delivery, and use of any professional consulting or customized, project-based services You order from Us in connection with the Services,  located at at the following URL (https://www.tovutilms.com/psa); and

(6) One or more “Addendum”, which for convenience and simplicity We may use from time to time to set forth any agreed-upon amendments, changes, or other modifications to, or waivers of, any of the standard terms and conditions set forth in any of the foregoing agreements or other documents; such modifications shall be binding on all parties (including the Users) if set forth in a written Addendum attached by Us to this Agreement and signed by both You and Us.

The terms and conditions set forth from time to time in these additional agreements and other documents are hereby incorporated into this Agreement by reference and made a part of this Agreement. Except with respect to any applicable Professional Services Agreement or Addendum to this Agreement, we may at any time revise such terms and conditions, which said revisions will be effective immediately. Except as may be limited or qualified by the Terms, We will provide you with notice of any such revisions.

If You agree to participate in testing any of Our pre-release services, You may also be asked to enter into a memorandum of understanding or beta agreement regarding Your use of such pre-release services. These are stand-alone agreements and the terms and conditions set forth in these agreements are not incorporated herein or otherwise made a part of this Agreement or the Terms and only apply to your use of such pre-release services.

Third-Party Goods or Services” means any goods or services provided to You by third-parties to interoperate with the Services, including, without limitation, any smartphones, tablets, computers, online, web-based or cloud-based applications, or offline software or other hardware products that are provided by third-parties.

Users” means individuals who are authorized by You to use the Services, for whom subscriptions have been purchased or made available, and who have been supplied user identifications and passwords or granted access by You to create user identification passwords by You, or by Us at Your request. Users may include, but are not limited to, Your employees, members, consultants, agents, contractors and family members if applicable (each, an “Administrative User”); or third parties with which You transact business (each, a “Registered User”).

"Active Users" means a user who could login to Tovuti and has logged in the last 12 months. The number of allowed "Active Users" will be as defined in Orders or Tovuti Package Agreement signed by the parties.

“Package Agreement” means the specific package of features and functions agreed to be purchased by You and supplied by Us for a set price, time and number of Users.

We,” “Us”, “Our” or “Company” means Tovuti, LLC, an Idaho limited liability company.

You” or “Your” means the company or other legal entity for which You acknowledge You have the authority to accept, bind, and enter into this Agreement.

Your Data” means all electronic data or information submitted by You at any time in connection with the Services, including prior to provision of the Services.

2. SUBSCRIPTION

2.1 Provision of Services

We shall make the Services available to You as purchased by You through Orders or Package Agreements pursuant to this Agreement and subject to the Terms. You agree that Your purchases are neither contingent on the delivery of any future functionality or features nor dependent on any oral comments made by Us regarding future functionality or features.

2.2 Subscriptions

You agree that (i) Services are purchased as subscriptions and may not be accessed or used by You, the Users, or your employees, contractors, or other participants in excess of the subscription amounts specified in the Orders or Package Agreement, (ii) additional subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional subscriptions are added, and (iii) the added subscriptions shall terminate on the same date as the pre-existing subscriptions. Except as otherwise specified by Us in the Orders or Package Agreement, subscriptions are based on the persons designated by You as the permissible Users or employees, contractors, or other participants and cannot be shared or used by anyone except as permitted in the Orders or Package Agreement. You are responsible for ensuring that Your employees, contractors, and customers comply at all times with the Terms in using the Services.

3. USE OF THE SERVICES

3.1 Use

The Services consist of software running remotely on servers controlled by Our third-party hosting provider, but may also include related mobile applications and offline capabilities. By accepting the use of Services You agree Company, may at its sole discretion, add the phrase “Powered By Tovuti somewhere visible but not distracting to Users on the Tovuti System. You have no right to receive either an object code or source code version of the software operating on the remote servers. Your usage rights are constrained by the Terms and are limited to accessing the Services via a designated portal using username(s) and password(s) provided to You by Us or on Our behalf in Our sole discretion. You must have a high-speed internet connection, hardware, and software that is compatible with the Services, as indicated by Us. You may need to upgrade Your equipment in order to use the Services.

3.2 Our Responsibilities

We shall: (i) provide You basic support for the Services at no additional charge, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 24 hours notice via our web site or electronic data message (EDM), or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays or other systemic Internet issues, and (iii) provide the Services only in accordance with applicable laws and government regulations.

3.3 Your Responsibilities

You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement and applicable laws and government regulations. You shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, rent or lease the Services, (iii) use the Services to store or transmit infringing, libelous, obscene or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (iv) use the Services to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) attempt or permit others to attempt to gain unauthorized access to the Services or their related systems or networks, (vii) load test the Services in order to test scalability, or (viii) copy, reproduce, publicly perform or create derivative works based upon the Services or Documentation or make or have made any feature or functionality of the Services.

3.4 Usage Limitations

The Services may be subject to other limitations, such as, limits on disk storage space or Internet bandwidth. We shall employ commercially reasonable efforts to apprise You of any such limitations. The Services may not be used for any purpose in violation of applicable laws or regulations.

3.5 Acceptance of Terms by the Company

You or, if applicable, Your employer or independent contractor, may request or authorize the Company to access your computer or mobile device on your behalf in order to install or deliver any Services and, in such event, You agree and acknowledge that the Company is authorized and directed to accept this Agreement and any Terms on Your behalf (including, without limitation, by affirmatively clicking through any prompts relating to this Agreement, the Services, or the Terms). You agree that this Agreement and the Terms are binding on You, and You shall comply fully with them, even if the Company accepts this Agreement or any of the Terms on Your behalf (at Your request) or affirmatively clicks-through any prompts relating to this Agreement, the Services, or the Terms on Your behalf.

4. THIRD-PARTY GOODS OR SERVICES

4.1 Acquisition of Third-Party Goods or Services

You may wish to purchase and use Third-Party Goods and Services to interoperate with the Services provided by Us to You. Any purchase or use by You of any Third-Party Goods or Services is solely between You and the third-party provider. You agree to comply with all terms and conditions applicable to such purchase or use of the Third-Party Goods or Services. We are not responsible for Third-Party Goods or Services and We do not warrant or support Third-Party Goods or Services, whether or not they are designated by Us as “certified” or otherwise. You bear all risks associated with the purchase, access, and use of all Third-Party Goods or Services.

4.2 Third-Party Goods or Services and Your Data

If You install or enable Third-Party Goods or Services, You acknowledge that We may allow third-party providers to transport Your Data as required for the interoperation of such Third-Party Goods or Services with Our Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access. The Services may allow You to restrict such access by restricting Users from installing or enabling any additional Third-Party Goods or Services not purchased by You.

5. ORDERS, FEES, AND PAYMENT

5.1 Orders

The initial Order for Services is set forth in that certain Tovuti Package Agreement signed by the parties and attached to the Professional Services Agreement, located at (https://www.tovutilms.com/psa), as a Statement of Work, when applicable. In order to facilitate Your order, purchase, and use of any additional Services, We will prepare and send to you Orders from time to time, either in writing or via electronic communication. The Orders will specify the Services ordered by You and to be delivered by Us, the Fees due and payable in exchange therefor and the basis for calculating those Fees, and any applicable delivery or payment terms. If You believe an Order contains any errors, please notify Us immediately. If we send You an Order, receipt verified, and You do not respond within 10 Business Days regarding any errors, We will assume that You have accepted the Order and the Order will be binding on You.

5.2 User Fees

You shall pay all Fees specified in Your Orders pursuant to the Terms. Except as otherwise specified by Us: (i) all Fees are quoted and payable in United States dollars; (ii) all Fees are based on Services ordered by You and not actual usage; (iii) payment obligations are non-cancelable and Fees paid are non-refundable; and (iv) the level of service cannot be decreased during the relevant subscription term. Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, Fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the relevant subscription term.

5.3 Invoicing and Payment

You will provide Us with valid and updated credit card information, with a mutually agreed upon electronic payment method, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Fees due and payable according to Your Orders, including, without limitation, any sales tax. No credit card processing or credit card fees will be charged. Fees for subscriptions shall be paid by You in full in advance of the subscription term, either annually or in accordance with any different billing frequency, as specified in Your Orders, and all Fees for any other Services not included in the subscriptions shall be paid by You in full when We send you the applicable Orders. If We agree that payment will be by a method other than a credit card, We will invoice You accordingly. Unless otherwise agreed, invoiced Fees are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with Us.

5.4 Overdue Fees

If any Fees are not paid by You when due then such Fees may accrue a late fee at the rate of 1.5% of the outstanding Fees per month, or the maximum rate permitted by law, whichever is lower, from the date the Fees were due until paid and We may condition future Orders on different payment terms specified in this Agreement or Your prior Orders.

5.5 Suspension of Service and Acceleration

If any amount You owe Us is overdue by 30 or more days (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate all unpaid Fee obligations under this Agreement, Your outstanding Orders, or any other Terms so that all such obligations become immediately due and payable, and suspend Your current Services, or withhold future Services ordered by You, until all such amounts are paid in full.

5.6 Payment Disputes

We will not exercise Our rights under Section 5.4 (Overdue Fees) or 5.5 (Suspension of Service and Acceleration) if the applicable Fees are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

5.7 Taxes

Unless otherwise specified by Us, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases from Us. If We have the legal obligation to pay or collect Taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.

6. PROPRIETARY RIGHTS

6.1 Reservation of Rights

This is a subscription to a service. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including, without limitation, all related intellectual property rights. No rights, including any rights under license, either express are implied, are granted to You hereunder other than as expressly set forth herein. This means that if We add to or modify the Services to make them better, even if You assist Us in that effort, all intellectual property rights relating to such additions or modifications shall be held by Us and You will have no ownership or license rights to such additions or modifications except for this subscription.

6.2 Restrictions

You shall not (i) permit any third party to access the Services except as permitted herein or as otherwise agreed, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to build a competitive product or service or copy any features, functions, or graphics of the Services.

6.3 Ownership of Your Data

As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the foregoing, the term “Your Data” does not include any analytical or statistical information regarding devices or operating systems used to access or utilize the Services; syncing, wait or down times; aggregated user or transaction data; errors encountered by Users; or the identifiers of where within the Services any technical problems arose. We (or a third party on Our behalf) may track, collect, and utilize such information to test, evaluate, support, market, or otherwise improve the quality of the Services. We (or a third party on Our behalf) will never access or use Your Data for support purposes without first obtaining your explicit permission. It is understood that We will not market Our products or services or the products and services of third parties to Your Registered Users without first obtaining Your permission in writing.

6.4 Suggestions

In order to avoid any misunderstandings or disputes relating to the Services and the ownership of all related intellectual property rights, please do not send Us unsolicited ideas, including but not limited to ideas for features, product improvements, promotions, products, processes, code, marketing plans, or product names. However, We welcome Your feedback regarding the Services and Our business. If You want to send Us feedback, please email Us at Support@TovutiTeam.com.

7. CONFIDENTIALITY

7.1 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall 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) 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 received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall 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) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.3 Protection of Your Data

We shall not (i) modify Your Data, (ii) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (iii) access Your Data except to provide the Services, prevent or address service or technical problems, or at Your request in connection with customer support matters.

7.4 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, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7.5 Separate NDA

In the event of a conflict between the terms in this Section 7 and any Non-Disclosure Agreement (“NDA”) in place between You and Us, the terms of the NDA shall govern. In the event of a conflict between the terms in this Section 7 and our Privacy Policy, the terms of our Privacy Policy shall govern.

8. LIMITED WARRANTIES AND DISCLAIMERS

8.1 Our Limited Warranty

We warrant that the Services shall be provided by Us in a professional, competent and workmanlike manner and the Services shall perform materially in accordance with the Orders and the Documentation (if any). For any breach this limited warranty, Your exclusive remedy shall be as provided in Section 11.3 (Termination) and Section 11.4 (Refund or Payment upon Termination) below.

8.2 Mutual Representations and Warranties

Each party represents and warrants that (i) it has the legal authority to enter into this Agreement and be bound by its terms and conditions, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

8.3 Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Indemnification

You shall indemnify, defend, and hold harmless Us and Our Affiliates, and Our respective officers, directors, contractors, and agents, from and against any claim made or brought against an indemnified party by a third-party (a) alleging that Your Data breaches any agreement You may have with a party other than Us, infringes or misappropriates the intellectual property rights of a third-party, or violates applicable law or (b) relating to Your use of the Services in violation of the Terms, including any damages awarded against an indemnified party and any reasonable attorney’s fees and court costs incurred by an indemnified party in connection with any such claim; provided, that We (i) promptly give You notice of the claim, (ii) give You control of that portion of the defense and settlement of the claim that relates to You (provided that You may not settle any claim unless the settlement unconditionally releases all indemnified parties of all liability), and (iii) provide You with all reasonable assistance at Our reasonable expense.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED TWO TIMES (2X) THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

10.2 Exclusion of Consequential and Related Damages

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY 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 THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. TERM AND TERMINATION

11.1 Term of Agreement

This Agreement commences on the date You accept it and continues until we are no longer providing You with any Services or this Agreement is terminated pursuant to Section 11.3 below.

11.2 Term of Services

Services purchased by You commence on the start date specified in the Orders or Package Agreement and continue for the subscription term specified within. Except as otherwise specified in the Orders, all subscriptions to Services shall automatically renew for an additional period of twelve (12) months, unless You give Us notice of non-renewal at least 60 days before the end of the relevant subscription term, unless otherwise defined in the Orders or Package Agreement. The per-unit pricing during the first renewal term shall not increase past 5% increase of the prior years pricing and may be the same as that during the prior term. For any such renewal terms after the first renewal term, the per-unit pricing shall be the same as that during the prior term, unless We have given You written notice of a pricing increase at least 90 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

11.3 Termination

Without limiting the Service Level Agreement, located at (https://www.tovutilms.com/sla), in the event of an outage of the Services in full for a period longer than seventy-two (72) hours, except for reasons outside of Our control, You may terminate this Agreement immediately with written notice; otherwise, a party may terminate this Agreement for cause (i) upon 30-days’ written notice to the other party of a breach of contract if such breach remains uncured at the expiration of such period or (ii) 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. We may also terminate this Agreement any time after the first renewal term ends at any time upon 60-days’ written notice to You.

11.4 Refund or Payment upon Termination

Upon termination of this Agreement We shall refund You any prepaid Fees covering the remainder of the term of all subscriptions after the effective date of termination, except for termination for cause by Us under Section 11.3, in which case You shall pay any unpaid Fees covering the remainder of the term after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any Fees payable to Us for the period prior to the effective date of termination.

11.5 Return of Your Data

We will maintain Your Data for a period of 30 days after the effective date of termination of this Agreement to enable You to download Your Data. After such time period, We shall have no obligation to maintain or provide access to any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

11.6 Surviving Provisions

Section 5 (Orders, Fees, and Payment), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.

12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

12.1 General

You are contracting with Tovuti, LLC, an Idaho limited liability a mailing address at 201 N Maple Grove, Suite 110, Boise, ID, 83704 USA; and telephone: 1-208-246-8601. You should direct all notices under this Agreement to “Legal” at that address. You agree that the substantive laws of the state of Idaho, exclusive of its choice of law provisions, will apply to the construction and interpretation of this Agreement and also with respect to any lawsuit arising out of or in connection with this Agreement. You further agree that the state or federal courts located in the state of Idaho, USA, shall have exclusive jurisdiction of, and shall be the exclusive and correct venue for, the resolution of any dispute arising out of or related to this Agreement. You agree that any dispute You may have with Us shall be subject, in our discretion, to submission to binding arbitration in Boise, Idaho pursuant to the Commercial Arbitration rules then-currently in place and promulgated by the American Arbitration Association.

12.2 Manner of Giving Notice

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second Business Day after mailing, or (iii) the second Business Day after sending by confirmed facsimile. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You, or to the email address You provide to Us. You agree to provide Us with Your current email address at all times. By Your acceptance of this Agreement, You agree to have opted-in for the receipt of email communications pursuant to the provisions of the United States CAN-SPAM Act.

12.3 Agreement to Governing Law and Jurisdiction

Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of and venue within the applicable courts stated above.

13. GENERAL PROVISIONS

13.1 Export Compliance

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.

13.2 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.

13.3 No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

13.4 Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement shall 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 of a party at law or in equity.

13.5 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 shall remain in effect.

13.6 Attorney Fees

You shall pay on demand all of Our reasonable attorneys’ fees and other costs incurred by Us to collect any Fees due Us under this Agreement. In any action arising out of or related to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs incurred in bringing or defending the action, including on any appeal.

13.7 Assignment

You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.8 Entire Agreement

This Agreement, including all exhibits and addenda, 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 shall be effective unless it is either (i) set forth in a written Addendum attached by Us to this Agreement and signed by both You and Us in writing or (ii) is otherwise signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any appendix or addendum hereto, the terms of such appendix or addendum shall prevail.