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SaaS SUBSCRIPTION AGREEMENT

PLEASE READ THIS SAAS SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE APPLICATION.  BY USING THE KINESICS SOFTWARE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERM OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS THE SOFTWARE APPLICATION. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN KINESICS, LLC (“VENDOR”), A LOUISIANA LIMITED LIABILITY COMPANY WITH OFFICES AT 440 NORTH 3RDSTREET, SUITE 201, BATON ROUGE, LA  70802, AND YOU THE (“CUSTOMER”) (INDIVIDUALLY A “PARTY” OR COLLECTIVELY, THE “PARTIES”).

Vendor provides (i) access to its hosted software applications for (a) flexibility and mobility analysis utilizing an assessment methodology that ties patho-anatomical range of motion assessments to analytical software, including prescriptive flexibility and mobility software applications based on severities, asymmetries, and imbalances and individual and group reporting and analysis procedures, and (b) educational materials, including videos, instructional videos, manuals, and workbooks, for health care professionals and fitness professionals who conduct posture analysis or flexibility and mobility assessments, and (ii) implementation services for the foregoing applications. The Parties desire that the Customer shall obtain access to these applications on a subscription basis.

In consideration of the mutual promises and covenants set forth below and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1. DEFINITIONS.

As used in this Agreement and in any Exhibits and Order Forms capitalized terms not otherwise defined in this Agreement have the meanings ascribed to them below:

  • Application” means the Vendor’s modules, platform, user interfaces, on-line help, and associated Documentation to which Customer may have access at www.kinesicshms.com, or such other URL as Vendor may specify from time to time, all as specified in the Order Form(s). 

  • “Covered Entity” means a “covered entity” under HIPAA.

  • “Customer Data” means any data, information, content, or material obtained by a Qualified Provider employed by Customer through an assessment or evaluation of a Customer member or client and uploaded or entered by Customer, through its Qualified Providers, into the Application.

  • “Documentation” means the user and technical information made available Customer by Vendor regarding the access and use of the Application by means of an on-line help system describing the operation of the Application under normal circumstances.

  • “Host”or “Hosted” means executing and providing access to the Application over the Internet through a server as directed by Vendor without any installation of software source code or object code on a computer owned or operated by Customer.

  • “Initial Term” means the first period of time this Agreement is in effect, beginning on the Effective Date and continuing for the period of twelve (12) successive months from the Activation Date identified in the Order Form.

  • “Intellectual Property Rights” means any (i) copyrights and copyrightable works, whether registered or unregistered; (ii) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including internet domain names, corporate names, and e-mail address names), whether registered or unregistered; (iii) patents, patent applications, patent disclosures, mask works and inventions (whether patentable or not); (iv) trade secrets, know-how, database rights, know-how, and rights in designs; and (v) all other forms of intellectual property or proprietary rights, and derivative works thereof, in each case in every jurisdiction worldwide.

  • “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended

  • “Order Form(s)” means the on-line ordering system form(s) on the website, which are incorporated into and made a part of this Agreement, and which describe the Subscription, features of the Application, including modules, capacity metrics, and other items contracted for, applicable fees and charges, and the billing period.

  • “PHI” means protected health information, as defined under HIPAA.

  • “Qualified Provider” means any employee of Customer that (i) provides training and fitness services to Customer’s members and/or clientele; (ii) has completed the Kinesics Practical Evaluation Course (KPEC) or Kinesics Evaluation Course (KEC) per the Vendor’s requirements; (iii) is verified by Customer as satisfying the requirements of a Qualified Provider, as further provider in Section 3 and Section 4 of this Agreement; and (iv) is authorized by Customer and Vendor to access and use the Application, as provided herein.

  • “Record” means any (i) new evaluation; (ii) re-assessment to any measurement (changes to an evaluation); (iii) corrective program design; (iv) change, edit, or addition to a home program; or, (v) creation of a new program.  Each record will have a 24-hour time stamp.  A Record may be entered, edited and augmented in a 24-hour timeframe, without creating a new Record.  

  • “Renewal Term” means each successive twelve-month period of time following the Initial Term, during which the Agreement shall remain in effect, provided, that the applicable Subscription Fee is timely paid and the Agreement is not otherwise terminated.

  • “Standard Support Services” means the Maintenance Services set forth in Exhibit A (“Standard Support Services and Service Level Agreement”).

  • “Statement of Work” means any additional or separate works or projects mutually agreed upon by Vendor and Customer for Social Media and Marketing Subscription services or Advanced Data Analysis and Reporting, or other projects, as identified and selected by Customer on the Order Form.      

  • “Subscription” means the particular use and access rights to the Application granted by Vendor to Customer pursuant to Subsection 3(a) and the corresponding Order Form, including related responsibilities described in this Agreement.

  • “Subscription Fee(s)” means the fees identified in the Order Form as being payable to Vendor in US dollars to access and use particular features of the Application and to receive the Standard Support Services during the corresponding Subscription Period.

  • “Subscription Period” means the successive twelve-month period of time beginning from the Activation Date identified in an Order Form during which Customer may access and use certain Application features for which Customer has paid Subscription Fees in accordance with the applicable Order Form and this Agreement.

  • “Term” means the period of time this Agreement is in effect, including the Initial Term and any Renewal Term(s).

  • “Update” shall have the meaning defined in the Standard Support Services and Service Level Agreement attached as “Exhibit A” hereto.

  • “User ID(s)” means authentication measures necessary to access and use the Application and consisting of an individual-specific user name and confidential password that satisfies Vendor’s password criteria and requirements.

  • “New Version(s)” means a major release of the Application configuration identified by a number to the left of the decimal point (e.g. 5.0, 6.0) and which generally involves the introduction of significant feature additions, broad upgrades to the user interface, or architectural improvements to the technology platform, and may involve the introduction of new modules that Vendor decides to make available.

2. DESCRIPTION OF APPLICATION AND SERVICES

(a) Subscribing to the Application.

Vendor shall provide to Customer access and use of the Hosted Application described in the Order Form(s), for the Subscription Period specified therein, in consideration of payment to Vendor of the applicable Subscription Fees, according to the terms and conditions of such Order Form and this Agreement.

(b) Additional Order Forms.

Additional Order Forms may be entered into by the Parties to subscribe to additional or different features of the Application. Unless designated as replacing a specific outstanding Order Form, a new Order Form will be considered in addition to currently outstanding Order Forms. Additional Order Forms shall be executed  electronically through the Vendor’s online ordering system.  Upon execution by the Parties, any such additional Order Forms shall automatically become fully incorporated herein and subject to the terms and conditions of this Agreement.

(c) Accessing the Application.

Prior to any access or use of the Application, Customer shall provide written notice to Vendor that identifies all Qualified Providers that Customer intends to authorize to access and use the Application on Customer’s behalf and hereby certifies to Vendor that all such designated persons satisfy the criteria for serving as a Qualified Provider, as set forth in Subsection 4(c) below. Individual User IDs shall thereafter be issued to each Qualified Provider and required to access and use the Application. Customer will access and use the Application only through its Qualified Providers pursuant to the User IDs issued to each Qualified Provider and only in accordance with the Subscription terms and other restrictions in this Agreement. The Customer shall be solely responsible for any use, by its Qualified Providers, of any User ID issued to such Qualified Providers. The Customer shall be responsible for verifying that each issued User ID has been issued only to a Qualified Provider that has been identified to Vendor and authorized to access and use the Application pursuant to this Agreement.  Upon request and certification, the Vendor will permit Customer to add Qualified Providers, each of whom shall be issued their own individual User IDs. 

(c) Standard Support Services.

Vendor shall provide the Standard Support Services set forth in Exhibit A (Standard Support Services and Service Level Agreement), and for which payment shall be included in the Subscription Fee unless otherwise specified in the Order Form.

(d) Hosting and Subcontractors.

Customer acknowledges and agrees that Vendor may in its sole discretion engage, or has engaged, third-parties and/or subcontractors to Host the Application or other Standard Support Services.

3. SUBSCRIPTION RIGHTS AND RESTRICTIONS

(a) Subscription Grant.

For each Application feature referenced on an Order Form and for which the applicable Subscription Fee is paid when due, Vendor hereby grants to Customer a nonexclusive, non-transferrable, limited Subscription for Customer’s Qualified Providers to do the following: (i) access the Hosted Application through their individual User IDs; (ii) load Customer Data into the Application; (iii) use the Application for Customer’s own internal business purposes; and (iv) operate the Application’s features during the Subscription Period according to the Documentation, all subject to the Order Forms and this Agreement. All rights not expressly granted to Customer in this Agreement are reserved to Vendor and its licensors.

(b) Type of Subscription.

The Subscription grant above is limited to the Qualified Providers identified by Customer and authorized by Customer to access and use the Application on Customer’s behalf, as provided herein.

(c) Required Qualified Provider Qualifications.

Each person that accesses and uses the Application on Customer’s behalf must qualify as, and be certified by Customer as qualifying as, a Qualified Provider, as provided in Subsection 4 (c) below.

(d) Subscription Restrictions.

A Customer who is in direct competition with Vendor shall not access, or allow access to, the Application without full written disclosure to Vendor of the specific nature of any such competition and Vendor’s prior written consent. Customer may not access the Application for the purpose of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose. Customer shall not (i) license, sell, resell, transfer, assign, distribute, or otherwise commercially exploit the Application or make the Application available to any third party in any way; (ii) modify the Application or create derivative works of the Application; (iii) create Internet “links” to the Application on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Application in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics of the Application; or (c) copy any of the Application’s ideas, features, functions, or graphics. 

In using the Application, Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the Application’s integrity or performance or the data contained therein; (v) attempt to gain unauthorized access to the Application or its related systems or networks; (vi) input any data or information into the Application that is: credit card or debit card information, personal banking, financial account information, or social security numbers, passport numbers or any other such data that would constitute Personal Information pursuant to La. R.S. 51:3073(4)(a) of the Database Security Breach Notification Law, as revised from time to time; or (vi) violate HIPAA or any other applicable state or federal laws or regulations.

Customer shall prohibit and not permit Qualified Providers to share User IDs with each other or with third parties. Customer acknowledges that: (i) Vendor shall rely on the validity of any User ID, instruction or information that meets the Application’s automated criteria or which is believed by Vendor to be genuine; (ii) Vendor may assume a person entering a User ID is, in fact, that Qualified Provider to whom the User ID has been issued; and (iii) Vendor may assume the latest email addresses and registration information for Qualified Providers on file with Vendor are accurate and current.

4. CUSTOMER RESPONSIBILITIES

(a) User IDs.

Customer shall, as provided herein, designate and certify the Qualified Providers that Customer will permit to access and use the Application on Customer’s behalf.  Customer shall be responsible for all activity occurring under any User IDs associated with Customer’s Qualified Providers. Customer shall: (i) notify Vendor immediately of any unauthorized use of any User IDs or any other known or suspected breach of security; (ii) report to Vendor immediately, and use reasonable efforts to stop immediately, any unauthorized access, copying or distribution of Customer Data that is known or suspected by Customer or its Qualified Providers; and (iii) not impersonate any Qualified Provider or any other Vendor customer or provide false identity information to gain access to or use the Application. Customer shall be responsible for its Qualified Providers’ compliance with this Agreement and shall ensure that its Qualified Providers are obligated in writing to protect the confidentiality of their respective User IDs and prevent any authorized use of their User IDs to access or use the Application.

(b) Data Preparation and Configuration.

Customer will ensure that: (i) it maintains and uploads Customer Data in proper format as specified by the Application, or elsewhere in this Agreement; (ii) its Qualified Providers are familiar with the use and operation of the Application; and (iii) it does not introduce other software, data, or equipment having an adverse impact on the Application. Following any initial implementation assistance by Vendor, Customer shall load the Customer Data and configure the Application, any Updates, and its internal processes, as needed, to operate the Application and any Updates in Customer’s computing environment. Customer, not Vendor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to use of all Customer Data, and Vendor shall not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store any Customer Data that is caused by any third party or by Customer or its Qualified Providers, or its or their use or misuse of User IDs by a third party.

(c) Qualified Provider Requirements.

Customer is responsible ensuring that only its Qualified Providers are granted access to the Application.Unless Vendor has, in writing, expressly granted other limited access to and/or use of the Application for purposes of demonstration or trial use purposes, Customer agrees and acknowledges that every Qualified Provider designated by Customer will meet each of the following required qualifications: (i) possession of a certificate of completion verifying successful completion of Kinesics KPEC or KEC Course per the Vendor’s requirements,and(ii) relevant occupational licenses/certifications, graduation from accredited occupational degree programsand/or relevant training sufficient to competently and safely provide evaluation, physical fitness and training services. Vendor holds no liability for the means or methods employed when conducting range of motion or other physical evaluations related to the Application. The range of motion techniques used in conjunction with the Application are not created by, nor owned by Vendor. It is the sole responsibility of the Customer to assure that all of its Qualified Providers meet the Vendor’s above requirements for a Qualified Provider, and to ensure that all such Qualified Providers work exclusively within the scope of their occupational practice. 

(d) Indemnity For Acts of Qualified Providers.

Customer represents and warrants that each and all of Customer’s Qualified Providers are suitably trained and qualified to provide the evaluation and training services they provide to Customer’s members and other clientele and Customer is exclusively responsible and liable for any acts or omissions of its Qualified Providers in connection with any evaluation and training services provided through the Qualified Providers. In addition, Customer agrees to fully defend, indemnify and hold Vendor harmless from any and all injuries, damages, allegations or claims asserted against Vendor as a result of any acts or omissions committed by any of Customer’s Qualified Providers.  

5. RESERVATION OF RIGHTS AND VENDOR OWNERSHIP.

This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Application, or to the Intellectual Property Rights therein, all of which are exclusively owned by Vendor. Vendor’s name, Vendor’s logo, and the product names associated with the Application are trademarks of Vendor or third parties, and no right or license is herein granted to any use them. Vendor (and its licensors) shall exclusively own all right, title, and interest in and to the Application, copies, modifications, and derivative works thereof. Vendor shall exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer, which Customer hereby fully assigns to Vendor, or any other party relating to the Application, including all related Intellectual Property Rights thereto, specifically excluding Customer Data.

6. CUSTOMER DATA OWNERSHIP AND LICENSE

(a) Ownership of Customer Data.

Customer shall exclusively own any rights, title and interests that may exist in and to Customer Data and Intellectual Property Rights thereto.

(b) Grant of License to Use Customer Data.

Customer hereby grants to Vendor a perpetual and irrevocable, nonexclusive, non-transferrable, worldwide, and fully paid license to, in Vendor’s sole discretion, copy, utilize and display Customer Data for research and development.

(c) Research Data Exclusion.

Notwithstanding the foregoing, Customer agrees and acknowledges that Customer Data does not include (i) any aggregated data that consists of data combined uploaded to the Application from results from Vendor’s use of Customer Data to perform research and development through queries or other methodologies that involve analysis of Customer Data combined with other data uploaded to the Application by other customers; and (ii) any Customer Data that does not include any Personal Information, as defined in La. R.S. 51:3073(4)(a), or that has otherwise been de-identified as provided under HIPAA (collectively referred to as “Research Data”).  All such Research Data shall be exclusively owned by Vendor. 

7. FEES AND PAYMENT

(a) Subscription Fees and Payment.

For the right to access and use the Application during the applicable Subscription Period, Customer shall pay the monthly Subscription Fees based on the selected subscription tier selected by Customer, as set forth in the Order Form. The Subscription Fees shall be invoiced to and paid by Customer in twelve (12) equal monthly installments, each due within thirty (30) days of the monthly invoice date. If a subscription is activated before the 15thof the month of activation, the Customer will be charged the full month’s Subscription Fee.  If the subscription is activated on or after the 15thof the month of activation, the Customer will be charged one half of the month’s Subscription Fee. Order Forms for any Renewal Term shall be based upon Vendor’s then-published rates, which will be disclosed and made available to Customer at least ninety (90) days prior to the expiration of the Initial Term or any applicable Renewal Term. For any such Renewal Term, Customer agrees that the applicable Order Form for that Renewal Term shall be substituted and applied in lieu of any preexisting Order Form for the Initial Term or any preceding Renewal Term. Except as otherwise specifically provided in Subsection 10(c)(iii), all payment obligations for Subscription Fees are non-cancelable and all amounts paid are nonrefundable.

(b) Data Storage and Backup Fees.

The Subscription Fees include commercially reasonable amounts of on-line data storage and data backups required to permit the Customer to utilize the Application in the manner contemplated by Vendor.  If the amount of disk storage required exceeds these limits, the Customer will be charged the then-current storage fees. Any additional data storage shall be charged and invoiced to Customer at Vendor’s then-published rates.

(c) Billing for Data Requests Beyond Basic Reporting.

For any data requests that extend beyond the basic reporting included in this Subscription, Vendor will charge Customer additional service fees according to any separate Statement of Workthat is mutually negotiated and executed by the Parties.

(d) Other Services Fees.

Unless separately provided otherwise in any applicable Statement of Work, Vendor shall invoice Customer monthly for all other services provided pursuant to the Order Form or otherwise under this Agreement, specifically including without limitation any fees for training or any add-on modules selected from the Order Form by Customer, at the rates set forth therein or the applicable Statement of Work or Order Form.  All such fees shall be due and payable in full to Vendor within thirty (30) days of invoice.

(e) Late Payment, Suspension.

Customer may not withhold or “setoff” any amounts due hereunder. In addition to any other legal remedies, Vendor reserves the right to suspend or terminate Customer’s access to the Application until all amounts due are paid in full after giving Customer advance written notice and an opportunity to cure as specified herein in the Section relating to Termination. Any invoice that is unpaid and 30 days past due will be considered late and shall be subject to any costs of collection, including reasonable attorneys’ fees, and shall bear interest at the rate of one percent (1%) per month, or the highest rate permitted by law, until paid.

(f) Taxes.

All prices and fees quoted or otherwise provided herein do not include, and Customer shall pay, any and all applicable taxes, including without limitation, sales, use, gross receipts, value-added, GST, personal property, or other tax (including interest and penalties imposed thereon) on the transactions contemplated herein, other than taxes based on the net income or profits of Vendor.

(g) Pricing Terms.

All prices and fees are stated and payable in U.S. Dollars. All pricing terms are confidential, and Customer agrees to maintain the confidentiality of all fees and costs chargeable hereunder and not disclose any such information to any third party.

(h) Renewal.

At the end of any applicable Subscription Period, or any applicable Renewal Term, Customer agrees that Vendor will attach to this Agreement, and thereby incorporate herein, the Order Form referenced and identified in Subsection 7(a) above for that applicable Renewal Term, unless either Party has timely issued a written notice of non-renewal pursuant to Subsection 18(c) hereinbelow.  Any fees charged under any Renewal Term will be based on the Vendor’s rate schedule then in effect.  

8. CONFIDENTIALITY

For purposes of this Section, a Party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.”

(a) Confidential Information.

“Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party’s actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from, the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include the terms and conditions and pricing information of this Agreement, and the Vendor’s Application (including, without limitation, Documentation, source code, translations, compilations, implementation methodologies, partial copies, and all derivative works thereof).

(b) Exclusions from Confidential Information.

Confidential Information does not include that which is or was: (i) as of the Effective Date of this Agreement, generally known to the public without breach of this Agreement; (ii) is or became generally known to the public after the Effective Date of this Agreement other than as a result of any act or omission of Recipient ; (iii) was already in the possession of the Recipient without any obligation of confidentiality; (iv) released by Disclosing Party to third parties without restriction on use and disclosure; (v) lawfully received by Recipient from a third party without an obligation of confidentiality; or (vi) independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential Information; and (vii)  is required to be disclosed in accordance with a judicial or governmental order or decree, provided that the Recipient provides prompt notice of the order or decree to the Disclosing Party and reasonably cooperates with the Disclosing Party to limit the disclosure and use of the applicable information.

(c) No Alteration, Decompilation, or Reverse Engineering.

Recipient shall not: (i) alter or remove from any Confidential Information of the Disclosing Party, any proprietary legend, or (ii) decompile, disassemble or reverse engineer the Confidential Information (and any information derived in violation of such covenant shall automatically be deemed Confidential Information owned exclusively by the Disclosing Party).

(d) Return of Confidential Information.

Upon the written request of the Disclosing Party or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession or control and cease all further use thereof.

(e) Injunctive Relief.

Recipient acknowledges that violation of the provisions of this Confidentiality Section would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.

(f) Survival.

This Section 8 shall survive this Agreement’s termination.

9. DATA PROTECTION AND INFORMATION SECURITY

(a) Protection and Security.

During the Term of this Agreement, Vendor shall (a) use commercially reasonable and industry standard physical, technological and administrative security safeguards, protocols and practices in its operation and use of the Application that are designed to protect the Application from unauthorized use and access;and (b) maintain a formal security program that is designed to: (i) protect the security or integrity of Customer Data after it is properly uploaded by Customer and stored on the Application; and (ii) deter unauthorized access to Customer Data while stored on the Application. Vendor has designed the Application to allow customers to achieve differentiated configurations, enforce user access controls, and manage data categories that may be populated and/or made accessible on a customer-by-customer basis. Customer understands that it has an independent duty to comply with any and all laws applicable to Customer. As between Customer and Vendor, Customer shall be solely responsible for acquiring and maintaining the appropriate physical, technical and administrative security safeguards for Customer Data that may be stored or maintained by Customer outside the Application and for the security and confidentiality of its Qualified Providers’ User IDs. Each Party agrees to indemnify the other Party from any damages that are asserted against a Party by a third party as a result of any authorized disclosure of Customer Data caused by or resulting from the gross negligence or deliberate misuse of Customer Data by the other Party.  

(b) Backup Procedures.

The Application is programmed to perform routine data backups of Customer Data properly uploaded by Customer and stored on the Application.  Except as otherwise expressly provided in this Agreement, Vendor shall have no liability for lost or corrupted Customer Data unless the loss or corruption is caused by the gross negligence or deliberate action of Vendor.  If requested by Customer, Vendor will, within thirty (30) days of written request, deliverto Customer its then most current back-ups of Customer Data. In the event of any loss, destruction, damage or corruption of Customer Data, Vendor will, as its sole obligation and liability, use commercially reasonable efforts to promptly restore the Customer Data. 

(c) Security Audits.

At least once per year, Vendor shall retain a recognized third-party security forensics team to conduct penetration testing designed to audit and test the security features provided in connection with the Application, including a network-level vulnerability assessment based upon recognized industry practices. 

(d) Insurance.

During the Term of this Agreement, Vendor will have and maintain a cyber insurance policy designed to provide insurance coverage in the event of a covered event involving unauthorized access to Customer Data stored on the Application.   

10. VENDOR’S REPRESENTATIONS AND WARRANTIES; CONDITIONS & ACKNOWLEDGMENTS.

(a) Vendor’s Representations and Warranties.

Vendor represents and warrants that:

(i) for a period of one hundred eighty days (180) from the date the Application, or an Update or New Version, is made available to Customer, the Application, or New Version, shall be free from material defects in materials and workmanship and will perform substantially in accordance with the Documentation under normal use and circumstances; and

(ii) Standard Support Services shall be performed in a professional and workmanlike manner, and for a period of one hundred eighty (180) days from the date of performance, shall be free from material defects; and

(iii) Vendor shall, prior to releasing an Update or New Version of the Application available, (a) scan it with commercially available anti-virus software and use reasonable efforts to remove viruses capable of being detected with such software, and (b) not intentionally include in the Application any viruses, worms, trap doors, Trojan horses or other malicious code.

(b) Warranty Conditions.

The warranties above shall be contingent upon the existence of all the following conditions: (i) the Application is properly implemented and operated by Customer in accordance with the Documentation; (ii) Customer notifies Vendor of any warranty defect as promptly as reasonably possible after becoming aware of such defect, but in no event more than ten (10) calendar days after becoming aware of such defect; (iii) Customer has properly used all Updates and New Versions made available with respect to the Application, and any updates recommended by Vendor with respect to any third-party software products that affect the performance of the Application; (iv) Customer has properly maintained all associated equipment and software and provided the environmental conditions in accordance with applicable written specifications provided by the applicable manufacturer of such equipment and software; (v) Customer has not introduced other equipment or software that causes an adverse impact on the Application; (vi) Customer has paid all amounts due hereunder and is not in default of any provision of this Agreement; (vii) any legacy software with respect to which the Application is to operate contains clearly defined interfaces and correct integration code, and (viii) Customer has made no changes (nor permitted any changes to be made other than by or with the express approval of Vendor) to the Application, except as may be expressly permitted herein.

(c) Mutual Acknowledgement.

The Parties acknowledge that the provisions of this subsection have been negotiated by them and reflect a fair allocation of risk. Customer’s exclusive remedies, and Vendor’s sole liability, with respect to any breach of this subsection will be, at Vendor’s option, for Vendor to (i) promptly correct the applicable material defects that affect performance of and access to the Application (provided that, Customer notifies Vendor in writing of such defect within the applicable warranty period); or (ii) provide a replacement application or service that is substantially similar in form and function and reasonably acceptable to Customer; or (iii) if neither of the foregoing are reasonably practicable, accept termination of Customer’s access and use of the Application and refund to Customer a pro-rata portion of unused, pre-paid Subscription Fees.

11. CUSTOMER’S REPRESENTATIONS, WARRANTIES AND COVENANTS

Customer represents, warrants and covenants that:

(i) Customer owns Customer Data or has all necessary rights to use and input Customer Data into the Application;

(ii) Customer Data shall not infringe upon any third-party Intellectual Property Rights or violate any rights against defamation or rights of privacy;

(iii) Customer has not falsely identified itself nor provided any false information to gain access to the Application and Customer’s billing information is correct;

(iv) Customer shall ensure that all persons that access or use the Application are Qualified Providers, as required herein; and

(v) Customer shall not infringe or violate the Vendor’s Intellectual Property Rights.

12. WARRANTY DISCLAIMERS

(a) No Extraneous Terms.

Without limitation, no representation or warranty is made orally or through any course of performance, course of dealing, or usage of trade, or through any advertising, brochures, catalogs, websites, promotional materials, quotations, proposals, documentation, packaging, or other descriptive literature or communications, and no such matter will be used to modify, interpret, supplement, add to, or alter in any way the terms and conditions of this Agreement.

(b) WARRANTY DISCLAIMERS.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE APPLICATION, DOCUMENTATION, AND STANDARD SUPPORT SERVICES ARE PROVIDED “AS IS” AND VENDOR EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING BY CUSTOM OR TRADE USAGE, AND WHETHER RELATING TO COMPATIBILITY, SECURITY, AND/OR FREEDOM FROM VIRUSES, OR ANY OTHER WARRANTY, AND SPECIFICALLY, VENDOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

EXCLUDING ANY DAMAGES THAT ARISE OR RESULT FROM CUSTOMER’S BREACH OR INFRINGEMENT OF VENDOR’S INTELLECTUAL PROPERTY RIGHTS, ANY DAMAGES THAT RESULT FROM A BREACH OF ANY OBLIGATIONS SET FORTH IN SECTION 9 HEREOF, AND ANY SUCH DAMAGES THAT ARISE AND RESULT FROM AN INDEMNIFICATION OBLIGATION EXISTING UNDER SECTION 13 OR SECTION 14 HEREOF, THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS TO ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT IN ANY WAY (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS), UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, OR BREACH OF STATUTORY DUTY), EVEN IF CUSTOMER OR VENDOR IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

VENDOR’S APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS CONTROL. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 12 HAVE BEEN NEGOTIATED AND REPRESENT A FAIR ALLOCATION OF RISK.

13.  INDEMNIFICATION BY VENDOR

Vendor shall defend Customer against any third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and court costs) asserted against Customer and finally adjudicated by a court of competent jurisdiction and arising out of a claim alleging that the Application directly infringes a valid registered U.S. patent issued as of the Effective Date, provided that Customer does the following: (a) promptly gives written notice of the claim to Vendor; (b) gives Vendor sole control of the defense and settlement of the claim; (c) provides to Vendor all relevant available information and reasonable assistance; and (d) Customerhas not compromised or settled such claim.

14. INDEMNIFICATION BY CUSTOMER

Customer shall defend Vendor against any third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and court costs) asserted against Vendor and finally adjudicated by a court of competent jurisdiction and arising out of a claim alleging: (i) that use of the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) infringement of third-party rights arising from the combination of the Application with any of Customer products, service, hardware or business process(s), provided that Vendor does the following: (a) promptly gives written notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim; (c) provides to Customer all available information and reasonable assistance; and (d) Vendor has not compromised or settled such claim.

15. LIMITATION OF LIABILITY

CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT, AT NO TIME, SHALL THE CUMULATIVE LIABILITY OF VENDOR FOR ALL CLAIMS ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO VENDOR UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM. VENDOR SHALL HAVE NO LIABILITY FOR DELAYS, FAILURES OR LOSSES ATTRIBUTABLE OR RELATED, IN ANY WAY, TO ANY THIRD PARTY APPLICATION OR SERVICES. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY REMEDIES PROVIDED. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE APPLICATION, SUBSCRIPTION AND STANDARD SUPPORT SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.

THESE LIMITATIONS UPON DAMAGES AND CLAIMS ARE INTENDED TO APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

16. EXPORT CONTROL

Vendor provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Customer agrees to comply strictly with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required for Customer Data.

The Application may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.

Vendor and its licensors make no representation that the Application is appropriate or available for use in other locations. Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to U.S., Swiss, or European Union (including European Union Member States) law is prohibited. None of the Customer Data, nor any information acquired through the use of the Application, is or will be used for nuclear activities, chemical, or biological weapons, or missile projects, unless specifically authorized by the U.S. government or appropriate European body for such purposes.

17. FORCE MAJEURE

Vendor shall not be in default of this Agreement if prevented from performing any obligation for any reason beyond its reasonable control including, without limitation, governmental laws and regulations, terrorists acts, acts of God or the public, calamities, floods, and storms, act of public authority, injunction, war, embargo, strike, lock out, failure or delay of supplier or carrier, failure of public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond its reasonable control. To the extent failure or delay in performance is caused by such a cause, Vendor shall be excused from performance under this Agreement for so long as such circumstance continues to prevent performance.

18. TERM

(a) Term.

The Term of this Agreement shall begin on the Effective Date and comprise the Initial Term and all Renewal Terms and shall continue in full force and effect until all outstanding Subscription Periods under valid Order Forms expire or are terminated in accordance with this Agreement. Expiration or termination of one Order Form shall not affect any other Order Form, unless the Agreement as a whole is terminated under Section 19(“Termination”).

(b) Renewal Term(s).

Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-year terms. The Subscription Fee for any Renewal Term will be according to Vendor’s then-effective rate schedule.

(c) Non-Renewal.

Except as specifically set forth otherwise herein, the Initial Term shall be non-cancellable. Either Party may give notice of non-renewal of this Agreement, effective only upon the expiration of the Initial Term or then-current Renewal Term, by notifying the other Party in writing at least sixty (60) days prior to the beginning of the next Renewal Term.

19. TERMINATION

(a) Termination for Cause.

Either Party may, in addition to other relief, suspend or terminate an Order Form or this Agreement if the other Party breaches any material provision hereof and fails within thirty (30) days after receipt of notice of default to correct such default, or to commence corrective action reasonably acceptable to the aggrieved Party, and proceed with due diligence to completion. In addition, either Party shall be in material default hereof if it commences voluntary or involuntary winding up, or makes an assignment of substantially all its assets for the benefit of its creditors, or a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within one hundred twenty (120) days. Any breach of Customer’s payment obligations or any unauthorized use of the Application will be deemed a material breach of this Agreement.

(b) Suspend or Terminate Application Access.

Vendor, in its sole discretion, may suspend or terminate Customer’s use of the Application if Customer commits a material breach and such breach has not been cured within 30 days’ notice of such breach.

(c) Termination By Customer.

Customer may terminate this Agreement in the event that it is required to cease its use of the Application by laws or regulations, which become effective after the Effective Date, and which are applicable to Customer. Other than the foregoing, in no event shall there be any termination for convenience during the Initial Term or a Renewal Term of this Agreement, or a refund or cancellation of any Initial Term or Renewal Term Subscription Fees, except as otherwise specifically in Subsection 10(c)((iii). The Subscription Fees have been negotiated by the Parties and reflect special pricing and allocation of resources by Vendor.

(d) Return of Customer Data.

If this Agreement is terminated, Vendor will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests in writing at the time of termination. Customer agrees and acknowledges that Vendor has no obligation to retain the Customer Data, and may delete such Customer Data, after such thirty-day period after termination, if Customer does not request a file of Customer Data. In the event of termination due to Customer’s breach, Vendor may apply a reasonable time and materials fee to make available to Customer the file of Customer Data.

20. NOTICES

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section). All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a notice is effective only upon receipt by the receiving Party and if the Party giving the notice has complied with this Section’s requirements.

21. INTEGRATION

This Agreement and its attached Exhibits constitute a complete and exclusive final written expression of the terms of the Parties’ agreement regarding the subject matter hereof. It supersedes all earlier and contemporaneous agreements, understandings and negotiations concerning the subject matter. The following Exhibits are attached to this Agreement, shall be governed by the Agreement’s terms and conditions, and are made a part of this Agreement:

Exhibit A - Standard Support Services and Service Level Agreement
Appendix A - Escalation Procedures

22. AMENDMENT

Excluding any substitution of an Order Form for an applicable Renewal Term, as provided in Subsections 7(a) and 7(h) above, there will be no modification or other amendment to this Agreement unless it is in writing and signed by duly authorized representatives of each Party. Any representations, promises, warranties or statements made by either Party that differ in any way from the terms of this Agreement will not be binding on either Party and will be void unless made in writing and signed by a duly authorized representative of each Party.

Other than an Order Form or a valid amendment in writing signed by the Parties, no document or pre-printed form shall be used to modify, interpret, supplement, add to, or alter in any way the terms and conditions of this Agreement. Any restrictive endorsement on any check or any instrument of payment to a Party that purports to alter this Agreement or any of the Parties’ rights will be deemed void and of no force or effect.

23. ASSIGNMENT OR CHANGE IN CONTROL

Neither Party may assign this Agreement without the other Party’s prior written approval, but Vendor may assign this Agreement without the Customer’s consent if Vendor is party to a merger or reorganization in which the surviving entity owns or controls more than 50% of Vendor and agrees in writing to assume the assigning Vendor’s obligations under this Agreement. Any purported assignment in violation of this Section shall be void. Any actual or proposed change in control of Customer that results, or would result, in a direct competitor of Vendor directly or indirectly owning or controlling 50% or more of Customer shall entitle Vendor to terminate this Agreement for cause immediately upon written notice.

24. INDEPENDENT CONTRACTOR STATUS

Each Party is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing in this Agreement shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, workers’ compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements now existing or hereafter enacted and attributable to themselves and their respective people.

25. NO AGENCY

Neither Party shall have the right to bind the other Party or cause it to incur liability.

26. NO CONFLICTS

Each Party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the Party or create any conflict of interest and shall promptly notify the other Party if it obtains knowledge of any such conflict during the Term.

27. INSURANCE

Each Party shall maintain adequate insurance protection covering its respective activities hereunder, including coverage for statutory workers’ compensation, comprehensive general liability for bodily injury and tangible property damage, and shall provide Certificates of Insurance to the other Party, upon reasonable request, evidencing such coverage and amounts.

28. GOVERNING LAW

The construction and performance of this Agreement shall be governed by the substantive laws of the United States and the laws of the State of Louisiana, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 

29. SEVERABILITY

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

30. WAIVER

The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.

31. NON-SOLICITATION

Each Party agrees that, during the Term of this Agreement and for a period of one year thereafter, it will not, except with the other Party’s prior written approval, solicit the employment of any employee, consultant or subcontractor of such other Party that directly participated in the activities set forth in this Agreement. The foregoing shall specifically not apply to general solicitations of employment issued by either Party to which an employee of the other may voluntarily respond.

32. CUSTOMER LIST

Customer consents to the use of Customer’s name and the Customer’s logo, exactly in the form as provided by Customer to Vendor, in Vendor’s customer list on its website and in its marketing materials, during the Term of this Agreement.

33. SURVIVABILITY

The following Sections shall survive termination of this Agreement: 1, 5, 6, 8, 11(v), 12, 15, 19(d), 20, 21, 24, 25, 28, 29, 30 and 31.

EXHIBIT A

STANDARD SUPPORT SERVICES AND SERVICE LEVEL AGREEMENT

This STANDARD SUPPORT SERVICES AND SERVICE LEVEL is between Kinesics, Inc., a Louisiana corporation, with its principal place of business at 440 North 3rdStreet, Suite 201, Baton Rouge, LA  70802 (“Vendor”) and you, (the “Customer”).

Under a SaaS Subscription Agreement executed this same day (the “SaaS Subscription Agreement”), Vendor has provided Customer with access to Vendor’s hosted software applications for (a) flexibility and mobility analysis utilizing an assessment methodology that ties patho-anatomical range of motion assessments to analytical software, including prescriptive flexibility and mobility software applications based on severities, asymmetries, and imbalances and individual and group reporting and analysis procedures, and (b) educational materials, including videos, instructional videos, manuals, and workbooks, for health care professionals and fitness professionals who conduct posture analysis or flexibility and mobility assessments, and (ii) implementation services for the foregoing applications. Customer desires to have Vendor maintain and support the software and Vendor desires to maintain and support the software for Customer under the terms and conditions set forth below.

IN CONSIDERATION of the foregoing and the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

1. DEFINITIONS.

Capitalized terms not defined in this Agreement have the meanings ascribed to them in the SaaS Subscription Agreement. As used in this Agreement and in any Exhibits and Order Forms capitalized terms not otherwise defined in this Agreement have the meanings ascribed to them below:

  • “Bypass” shall mean a procedure communicated by Vendor to Customer, which permits Customer to avoid Error(s) by implementing the same when using the Application pursuant to the SaaS Subscription Agreement.

  • “Enhancement(s)” shall mean a modification to the Application that alters its functionalities without materially degrading them or the Application’s performance. 

  • “Error(s)” shall mean a reported failure of the Application to conform to its intended functionality, as set forth in the Documentation, and verified by Vendor as provided herein.

  • “Error Report” shall mean the document to be created by Vendor, pursuant to Subsection 3.1.1 hereof, each time Vendor verifies the existence of an Error reported by Customer.

  • “Fix(es)” shall mean any modification that corrects an Error pursuant to the terms of this Agreement.

  •  “Maintenance Services” shall mean the services identified in Section 3 below which are to be provided to Customer pursuant to this Agreement.

  •  “Severity Level” shall mean the level of severity assigned to a reported Error, in accordance with the Severity Level definitions set forth in Appendix A to this Agreement.

  • “Update” shall have the meaning set forth in the SaaS Subscription Agreement.

  • “Upgrades” shall mean a new release or version of the Application constituting a compendium of Enhancements.

2. VENDOR’S OBLIGATIONS

2.1 In consideration of Customer’s performance hereunder, Vendor shall, in addition to the other obligations imposed on Vendor hereby, render the Maintenance Services in a professional manner and in accordance with industry standards.

2.2 The Parties acknowledge and agree that, notwithstanding anything to the contrary herein contained, Vendor shall not maintain or otherwise provide any form of support in connection with any hardware utilized to access and use the Application or any third party software, hardware or other products provided by any third party and used by Customer in connection with the Application.

3. MAINTENANCE SERVICES

3.1 During the term of this Agreement, Vendor shall provide the following Maintenance Services to Customer:

3.1.1 Telephone Support. Vendor telephone support representative(s) shall be available to receive Customer telephone calls between the hours of 8:30 a.m. and 5:30 p.m., Baton Rouge, LA time, Monday through Friday, excluding public holidays. Vendor shall provide Customer with a telephone number that is answered at all other times by an individual who will accept and document any reports of Errors discovered by Customer. When Customer reports an Error to Vendor, the Vendor representative will utilize the information reported by Customer to investigate and attempt to replicate and verify the existence of the reported Error. Such telephone support representative(s) shall serve as the Customer’s interface with Vendor and shall ensure that reported Errors are handled in a timely manner as specified in Appendix A hereto. Vendor shall provide to Customer in writing, the name(s) and telephone number(s) of such telephone support representative(s) within ten (10) days of the later of the execution of this Agreement or the date of first use of the Application by Customer under the SaaS Subscription Agreement. All Errors shall be investigated and if the Error is replicated and verified by Vendor or is directly caused by the intended use and normal operation Application pursuant to the SaaS Subscription Agreement, (a) an Error Report shall be opened, (b) the Error shall be assigned a Severity Level as per the provisions of Appendix A hereto, and (c) the Error shall be resolved in accordance with the procedures and processes set forth in Appendix A hereto.

3.1.2 Installation Assistance.  Vendor shall provide to Customer telephone assistance for the implementation or installation of Bypasses, Fixes, and Updates between the hours of 8:30 a.m. and 5:30 p.m., Baton Rouge, LA time, Monday through Friday, excluding public holidays.

3.1.3 Bypasses.  Vendor shall provide to Customer such Bypasses as are available and sufficient to ensure the resolution of Errors that can be resolved by a Bypass.

3.1.4  Fixes.  Vendor shall make available to Customer such Fixes as are available and necessary to ensure the resolution of Errors that can be resolved by a Fix.

3.1.5 Updates.  Vendor shall, as soon as they are made available, make available to Customer such Updates as it provides to its other users of the Application from time to time.

3.1.6 Enhancements. Vendor shall make available to Customer such Enhancements as it provides to its other users of the Application from time to time.

3.1.7 Upgrades.  Vendor shall make available, as soon as they are made available, to Customer such Upgrades as it provides to its other users of the Application from time to time.

3.2 Regular Activity Reports.  Upon written request by Customer, Vendor shall provide: (a) a status report of Error resolution activities; and (b) a status report of all outstanding Error Reports. Such status reports shall contain Vendor’s tracking number, Error description, Error resolution status, and a definitive resolution time frame and release number for all Errors.

3.3  Limitation on Maintenance Services. Notwithstanding any other provisions in this Agreement, Vendor shall provide Maintenance Services only with respect to the two (2) most recent Upgrades of the Application.

3.4  Intellectual Property Rights. Title to all Bypasses, Fixes, Updates, Enhancements, and Upgrades shall remain solely and exclusively with Vendor. It is hereby acknowledged and agreed that the former shall be deemed to constitute software for purposes of the application of the SaaS Subscription Agreement.

4. OUT OF SCOPE PROBLEMS

4.1  Any time incurred by Vendor in diagnosing or fixing problems that are not caused by the Application, or are not covered by this Agreement, are billable to the Customer at Vendor’s then-existing rate, with a one-hour minimum per call.

4.2 Any travel and expenses incurred in conjunction with out of scope maintenance and support shall be billed to Customer at Vendor’s actual costs, provided all such travel and expenses shall be approved by Customer in advance.

5. TERM OF AGREEMENT.

This term of this Agreement shall be coterminous with the SaaS Subscription Agreement and any expiration or termination of the SaaS Subscription Agreement shall automatically result in the simultaneous expiration or termination of this Agreement.

6. FEES FOR MAINTENANCE.

Except as otherwise provided in this Agreement, fees for the Maintenance Services are included in the Subscription Fee under the SaaS Subscription Agreement.

7. INTENTIONALLY OMITTED 

8. CONFIDENTIALITY.

Information provided by either Party to the other under this Agreement shall be kept confidential in conformance with and subject to any applicable terms of the SaaS Subscription Agreement, pertaining to Confidential Information.

9. LIMITATION OF LIABILITYAND DISCLAIMER OF WARRANTY. 

9.1 In no event shall Vendor be liable for any special, indirect, incidental, punitive, or consequential damages, including loss of profits arising from or related to the breach of this Agreement, even if Vendor had been advised of the possibility of such damages.

9.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN THE EVENT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, VENDOR’S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW OR OTHERWISE, SHALL BE EXCLUSIVELY LIMITED TO DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT ACTUALLY RECEIVED BY VENDOR PURSUANT TO THE SAAS SUBSCRIPTION  AGREEMENT FOR THE APPLICABLE SUBSCRIPTION PERIOD.

9.3 EXCEPT AS SET EXPRESSLY FORTH IN SECTION 10 OF THE SAAS SUBSCRIPTION AGREEMENT, VENDOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR MAINTENANCE SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY CUSTOMER. VENDOR FURNISHES THE WARRANTIES IN SECTION 10 OF THE SAAS SUBSCRIPTION AGREEMENT IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

10.  INDEPENDENT CONTRACTOR.

All work performed by Vendor in connection with the Maintenance Services provided under this Agreement shall be performed by Vendor as an independent contractor and not as the agent or employee of Customer. All persons furnished by Vendor shall be for all purposes solely the Vendor’s employees or agents and shall not be deemed to be employees of Customer for any purpose whatsoever. Vendor shall furnish, employ and have exclusive control of all persons to be engaged in performing Maintenance Services under this Agreement and shall prescribe and control the means and methods of performing such Maintenance Services by providing adequate and proper supervision.  Vendor shall be solely responsible for compliance with all rules, laws, and regulations relating to employment of labor, hours of labor, working conditions, payment of wages, and payment of taxes, such as employment, Social Security, and other payroll taxes including applicable contributions from such persons when required by law.

11. FORCE MAJEURE. 

Vendor shall not be in default of this Agreement if prevented from performing any obligation for any reason beyond its reasonable control including, without limitation, governmental laws and regulations, terrorists acts, acts of God or the public, calamities, floods, and storms, act of public authority, injunction, war, embargo, strike, lock out, failure or delay of supplier or carrier, failure of public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond its reasonable control. To the extent failure or delay in performance is caused by such a cause, Vendor shall be excused from performance under this Agreement for so long as such circumstance continues to prevent performance. 

12. ASSIGNMENT. 

Neither Party may assign this Agreement without the other Party’s prior written approval, but Vendor may assign this Agreement without the Customer’s consent if Vendor is party to a merger or reorganization in which the surviving entity owns or controls more than 50% of Vendor and agrees in writing to assume the assigning Vendor’s obligations under this Agreement. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results, or would result, in a direct competitor of Vendor directly or indirectly owning or controlling 50% or more of Customer shall entitle Vendor to terminate this Agreement for cause immediately upon written notice.

13.  AMENDMENTS, MODIFICATIONS, OR SUPPLEMENTS. 

Amendments, modifications, or supplements to this Agreement shall be permitted, provided all such changes shall be in writing signed by the authorized representatives of both Parties, and all such changes shall reference this Agreement and identify the specific articles or sections of this Agreement that is amended, modified, or supplemented. 

14 NOTICES. 

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be provided as set forth in the SaaS Subscription Agreement.

15. OBLIGATIONS THAT SURVIVE TERMINATION.

The Parties recognize and agree that the obligations of the other party under Sections 8, 9 and 16 of this Agreement, shall survive the cancellation, termination, or expiration of this Agreement.

16.  GOVERNING LAW.

The construction and performance of this Agreement shall be governed by the substantive laws of the United Stated and the laws of the State of Louisiana, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

17. ENTIRE AGREEMENT.

ThisAgreement,its attachments, and the SaaS Subscription Agreement and its attachments constitute a complete and exclusive final written expression of the terms of the Parties’ agreement regarding the subject matter hereof. It supersedes all earlier and contemporaneous agreements, understandings and negotiations concerning the subject matter. If there is any conflict between this Agreement and the SaaS Subscription Agreement, the SaaS Subscription Agreement shall control in all respects other than terms governing warranty and liability issues applicable to Maintenance Services.

Appendix A

Escalation Procedures and Processes for Software Error Resolution

CLASSIFICATION OF ERRORS

All Errors reported by Customer to Vendor shall be assigned a Severity Level jointly agreed upon by Customer and Vendor. The point of contact throughout this initial Error reporting procedure shall be the applicable Vendor support representative available to Customer under the terms of this Agreement.  Reported Errors shall be classified as follows:

Severity Level 1 - Severity Level 1 implies that the Application is not functioning as expected in conformity with its Documentation. Some examples of Severity Level 1 Errors are as follows:

1. Application is down and will not restart;

2. Production Software not able to communicate with external systems (including the network control center) that halts online and other processing and no Bypass is available; and

3. Application is generating a data corruption condition that halts online and other processing and no Bypass is available.

Severity Level 2 - Severity Level 2 implies that the Application is running but that Customer is unable to use major portions of the Application, and no Bypass is available. Some examples of Severity Level 2 Errors are as follows:

1. Intermittent Error in a live, production system that continues processing with no Bypass; and

2. Major functional component is unavailable with no Bypass.

Severity Level 3 - Severity Level 3 implies that the Application is operating close to normal, but there is a noncritical Error for which an operational Bypass exists for such Error. Severity Level 3 Errors will be fixed in the next scheduled Update.

Severity Level 4 - Severity Level 4 includes purely cosmetic Errors and documentation anomalies.

Out-of-Scope - A reported problem is out-of-scope when it is determined not to be related to the Application and is beyond the bounds of Vendor’s responsibility. Examples of such unrelated problems include, but are not limited too, third party applications or software, Customer hardware and cabling, power or environmental conditions, and human error.

SEVERITY LEVEL 1

Error Resolution - Immediate steps shall be taken toward solving the Error. Vendor shall work to resolve Severity Level 1 Errors on a twenty-four (24) hour basis until the Error is resolved. If required, Vendor staff shall be moved off of lower Severity Level Errors to service Severity Level 1 Errors.

Resource Commitment - When a Severity Level 1 Error is reported, Vendor shall assign all resources required to correct the Error. Work on the Error shall be reasonably continuous until a Fix is found. If system access is required, Customer shall provide a contact available to Vendor and access to its system and software for the duration of the Error correction procedures.

Completion Goal - The completion goal shall be to resolve one hundred percent (100%) of all Severity Level 1 Errors with a Fix or Bypass within eight (8) hours of receipt of the Error Report.

Escalation and Status Thresholds - When a Severity Level 1 Error Report is opened, the following escalation and status procedures shall be followed.

Hour 1 - Hour 3

1. The Error shall be resolved by Vendor first line support; or

2. The Error will be referred to the maintenance engineering group. All log files and a description of the work done by Vendor will be transferred to this group. The report will receive an Error Report number which will be entered into the SMS. The error will be passed to the maintenance engineering group via the SMS as well as by e-mail.

The Customer will be notified of the status of the Error.

Hour 3

1. The maintenance engineering point of contact will resolve the Error; or

2. It will be decided that more resources are required to work on the Error.

The Customer will be notified of the status of the Error.

Hour 4 – Hour 8

1. Vendor shall continue to work on the Error, on a twenty-four (24) hour basis, until a resolution is found. All reasonably available resources shall be used to assist the person who is responsible for the resolution of the Error; and

2. The Project Manager and Operations Support Manager shall be notified that a Severity Level 1 Error has reached a critical time frame.

SEVERITY LEVEL 2

Error Resolution - Severity Level 2 Errors will be analyzed in the order that they are reported.  Severity Level 1 Errors will take priority over Severity Level 2 Errors.

Resource Commitment - Appropriate technical resources will be assigned to Severity Level 2 issues as long as Severity Level 1 Errors are not open.

Completion Goal - The completion goal will be to resolve one hundred percent (100%) of all Severity Level 2 Errors with a Fix or Bypass within forty-eight (48) hours of receipt of the Error Report. If it is a Bypass, a Fix will be applied within sixty (60) days.

Escalation and Status Thresholds - When a Severity Level 2 Error Report is opened, the following escalation and status procedures will be followed.

 Hour 1 - Hour 24

1. The Error shall be resolved by Vendor; or

2. The maintenance point of contact person will be contacted. All log files and a description of the work done by Vendor will be transferred to this group. An Error Report number will be assigned and entered in the trouble tracking system.

The Customer will be notified of the status at this stage.

Hour 25 - Hour 48

1. The maintenance engineering point of contact will resolve the Error; or

2. The maintenance engineer will continue working the Error until it is fixed.

3. A date will be estimated upon when this Error will be fixed.

The Customer will be notified of the status at this stage.

SEVERITY LEVEL 3

Error Resolution - Severity Level 3 errors shall be researched after Severity Level 1 and Severity Level 2 Errors. The majority of the Severity Level 3 Errors shall be scheduled for correction and be resolved as part of the next scheduled Update.

Resource Commitment - Severity Level 3 Fixes shall be included in the next scheduled Update.

Completion Goal - The completion goal and objective shall be to correct Errors in the next scheduled Update.

Escalation and Status Thresholds - The status of Severity Level 3 Errors shall be available on demand. A monthly report will be distributed that will reference any uncorrected Errors that are over ninety (90) days old.

SEVERITY LEVEL 4

Error Resolution - Severity Level 4 Errors shall be addressed at Vendor’s discretion after Severity Level 1, Severity Level 2 and Severity Level 3 Errors are corrected. All Severity Level 4 Errors shall be scheduled for correction and be resolved as part of the next scheduled Update.

Resource Commitment - Severity Level 4 Fixes shall be included in the next scheduled Update.

Completion Goal - The completion goal and objective will be to correct issues in the next scheduled Update.

Escalation and Status Thresholds - The status of Severity Level 4 Errors shall be available on demand.