1. ACCESS AND USE.

1.1 Provision of Access. Subject to this Agreement, Company grants to Customer a non-exclusive, non-transferable right to access the features and functions of the NJBSoft Software (the “Software”) and associated reports and documentation (the “Documentation”) (collectively, the Software and the Documentation are the “Product”) during the Term (as defined below), solely for use by Authorized End Users according to this Agreement’s terms and conditions. Customer may use the Product for internal business only. Company will provide Customer passwords, links, or other credentials allowing Customer to access the Product (the “Access Protocols”), and the applicable Documentation. Customer is responsible for all Authorized End Users’ acts and omissions and will inform them of this Agreement’s applicable provisions and require them to comply with the Customer’s obligation under this Agreement. “Authorized End User” means any individual authorized, by virtue of his relationship to or permissions from Customer, to access the Product in accordance with Customer’s rights under this Agreement.

1.2 Documentation License. Subject to this Agreement’s terms, Company grants Customer a non-exclusive, non-transferable right and license to use the Documentation during the Term related to Customer’s use of the Product. As between the Parties, Company agrees that Customer retains all right, title, and interest in and to Customer Content, granting Company a non-exclusive, worldwide right and license to use, copy, manipulate and render Customer Content through the Product.

1.3 Suspension. Company may temporarily suspend Customer’s and any Authorized End User’s access to any portion of, or all of the Product according to Company’s obligations and responsibilities in the Service Level Agreement.

2. FEES AND EXPENSES; PAYMENTS.

2.1 Fees. Customer shall pay to Company, without offset or deduction, the fees stated in the Quote (the “Fees”). Unless otherwise stated, Customer shall pay all Fees within thirty (30) calendar days after the Company issues an invoice. Upon the Effective Date, all Fees are fully earned and not subject to refund for any reason. Company may adjust the Fees after the initial term of this Agreement, and each year following, by providing at least seventy-five (75) days written notice, electronically or otherwise.

2.2 Customer Operating Expenses. Customer must pay to implement this Agreement, including Product or Authorized End User costs.

2.3 Taxes. As allowable by law, Customer must pay all applicable taxes, export and import fees, customs, duties, and similar charges (other than Company income tax), and related penalties and interest for the grant of license rights, or delivery of services. Customer’s payments to Company are free and clear of any withholding taxes. Customer is solely responsible for any taxes, and will provide Company with evidence of payment.

2.4 Late Payments; Interest. Any unpaid amount will accrue interest at the lesser of 1.5% per month or the legal maximum rate, until paid.

3. TREATMENT OF CONFIDENTIAL INFORMATION AND DATA.

3.1 Ownership of Confidential Information. Each Party has access to the other Party’s Confidential Information or third-party Confidential Information. The disclosing Party/applicable third party owns, and considers proprietary, all Confidential Information.

3.2 Confidentiality Obligations. Each Party agrees: (i) to use Confidential Information disclosed by the other Party only for the stated purposes; (ii) not to reproduce Confidential Information the other Party discloses, and to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) neither Party will create any derivative work from the other party’s Confidential Information; (iv) to restrict access to the other Party’s Confidential Information to its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information according to this Agreement’s terms; (v) to assist Company with objecting to access requests by public bodies, and (v) to return or destroy, pursuant to Section 5.4, all Confidential Information in its possession when this Agreement terminates or expires. Notwithstanding the foregoing, Customer agrees that Company may collect and provide non-specific, aggregated, statistical data regarding Customer’s use of the Product to third parties.

3.3 Confidentiality Exceptions. Notwithstanding the foregoing, Confidential Information does not include information that (i) is publicly available or in the public domain when disclosed; (ii) is publicly available without recipient’s fault; (iii) is rightfully given to the recipient by persons without confidentiality obligations; (iv) the recipient already possesses free of any confidentiality obligations when disclosed; (v) the recipient independently develops; or (vi) the disclosing Party approved for unrestricted release. Parties may disclose Confidential Information (i) to comply with court, governmental order, or law, if disclosing Party notifies the other Party and attempts obtaining a protective order.

3.4 Customer Data Uses. If Customer and any Authorized End User, through the Product, collects, uses, stores and discloses data from any other party, Customer shall accurately and adequately disclose, either through a privacy policy or otherwise, how Customer collects, uses, stores and discloses data, including, where applicable, that third parties may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers. Customer shall follow applicable laws, including the EU General Data Protection Regulation (GDPR), when managing all information.

3.5. Data Transfer or Destruction. When Company no longer needs Customer Content and, upon Customer request, Company will destroy or transfer all Customer Content in its possession. Company only retains Customer De-Identified Data.

4. REPRESENTATIONS AND WARRANTIES.

4.1 Mutual Representations. Each Party represents (i) that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, constitutes a valid and binding obligation, and will be enforceable against such Party in accordance with its terms.

4.2 Service Levels. Company represents the Product will materially conform to the Service Level Performance Standards when accessed and used according to the Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement, Customer agrees that its sole and exclusive remedy, and Company’s sole and exclusive obligation, for a potential breach of this representation is set forth in the Service Level Performance Standards which is incorporated herein.

4.3 Customer Representations. Customer represents and warrants that Customer has received consent from each Authorized End User for the collection and use of Personally Identifiable Information as set forth in the Privacy Policy and Terms of Service. Customer further represents and warrants that Customer and its Authorized End Users will use the Product only as set forth herein and in the Terms of Service.

4.4 Security Controls. Company will store and process Customer Content according to industry best practices, including administrative, physical, and technical safeguards to secure Customer Content from unauthorized access, disclosure, and use. Company will conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner.

4.5. Disclaimers and Limitation of Liability.

Except as set forth in this Section 4, ALL SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. COMPANY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.

5. TERM AND TERMINATION.

5.1 Term. This Agreement begins on the Effective Date and, unless terminated according to its terms, continues for the Initial Term (stated on the Quote), and automatically renews for successive 1-year terms, unless a Party provides sixty (60) days’ written notice of nonrenewal before then-current term ends (collectively, the initial term and renewal terms are the “Term”).

5.2 Termination for Breach. Either Party may terminate this Agreement if the other Party materially breaches. The terminating Party must notify the breaching Party, identifying the breach(es) necessitating termination, and the breaching Party, must cure the breach(es) within thirty (30) days of receiving the written notice, otherwise the terminating Party may terminate the Agreement with immediate effect.

5.3 Termination Upon Bankruptcy or Insolvency. Either Party may terminate this Agreement immediately upon written notice to the other Party, if (i) the other Party is insolvent or unable to pay its debts when due; (ii) the other Party files a bankruptcy or similar petition, or, if filed against, the petition is not removed within ninety (90) days; or (iii) the other Party’s business discontinues; a receiver is appointed, or an assignment made.

5.4 Effect of Termination. Upon termination, Customer will immediately discontinue using the Product, the Documentation, and Company Confidential Information and both Parties will either return, or, at the other Party’s option, destroy, all copies of the Documentation and any Confidential Information. Customer will promptly pay Company all outstanding amounts due. Customer has thirty (30) days from the termination date or expiration of this Agreement to provide a written request to receive a copy of Company-stored Customer Content in backup format as determined by Company.

5.5 Survival. Sections 3, 4.5, 5.4, 6, and 7 survive the Agreement’s termination.

6. INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless Company and its affiliates, officers, managers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees, and other costs of defense, arising from or relating to any breach of any Customer obligation, representation or warranty or claim that the data or information provided by Customer to Company infringes upon the intellectual property rights or other rights of any third party.

7. MISCELLANEOUS.

7.1. Entire Agreement; Governing Law. This Agreement sets forth the entire agreement and understanding between the Parties and supersedes and merges all prior oral and written agreements, with respect to this subject matter. No modifications, additions, or amendments to this Agreement shall be effective unless made in writing as an amendment to this Agreement and signed by duly authorized representatives of the parties. The headings and captions of this Agreement are inserted for convenience and do not define, limit, or describe the scope and intent of this Agreement or any particular section, paragraph, or provision. THIS AGREEMENT WILL EXCLUSIVELY BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF. ALL CLAIMS BROUGHT UNDER THIS AGREEMENT HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN MARICOPA COUNTY, ARIZONA.

7.2. Severability. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, and the remainder of such provision and this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.

7.3 Conflicts. In the event of any discrepancies between this Agreement and the statement of work, this Agreement shall prevail over the statement of work unless the statement of work specifically states that it is intended to prevail over the terms of this Agreement.

7.4. Waiver; Notices. Waiver of a breach of this Agreement shall not constitute waiver of another breach. Failure to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any notice, communication, or request required or permitted by this Agreement shall be given to the recipient in writing by both email and either certified mail, nationally recognized overnight courier, or hand delivery to the address set forth in the Quote. Any such notice shall be deemed to be received on the date received by recipient.

7.5 Relationship of the Parties. It is agreed that the relationship of the parties is that of independent contractors. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.