WITNESSETH:

WHEREAS, Founders Software provides access to certain software as a service offerings to its clients; and

WHEREAS, Client desires to obtain the right to use from Founders Software  and Founders Software desires to provide to Client, the software as a service offering described in this Agreement, subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

DEFINITIONS

The following definitions are applicable to this Agreement and are in addition to the definitions included throughout the Agreement:

“Addendum” means a written amendment to this Agreement executed by the parties.

“Authorized Contact” means Client’s internal designate authorized to contact Founders Software in the event of a Service Defect or other emergency, or for technical support.

“Client Data” means all of Client’s data submitted to and processed through the Services.

“Custom Modifications” means programming or other changes to the Services requested by Client and agreed to be provided by Founders Software either in this Agreement, in an Addendum, or both, all of which shall be subject to the terms of this Agreement.

“Documentation” means the written materials relating to the operation of the Service (either in hard copy or electronic form), including, without limitation, service documentation, user manuals, and/or program documentation associated with Service, in the English language. Documentation will be updated as necessary in connection with any New Releases and/or Updates.

“Fee Commencement Date” means the earlier of (a) ninety (90) days from the Effective Date of this Agreement or, (b) the scheduled Go Live Date determined per the Implementation Schedule as defined in the Agreement.

“Go Live Date” means the date on which the Client is expected to begin using the Service based on the Implementation Schedule as defined in the Agreement, unless separate and prior arrangements are made.

“New Release” means new version releases and/or upgraded versions of the Software which may be released by Founders Software after the Effective Date of this Agreement, all of which shall be subject to the terms and conditions of this Agreement.

“RoutingBox” means the proprietary software application that enables users to manage operations related to transporting people, including, without limitation, the scheduling, dispatching, and billing of trips.

“RoutingBox Mobile” means the proprietary software application that allows vehicle drivers to receive updated schedule and route information from RoutingBox.

“Service” or “Services” means the Software, which is hosted on computer systems controlled by Founders Software, and which is made available to Client through the internet.

“Service Defect” means any instance in which Service does not operate correctly because it does not conform to the specifications set forth in the Documentation. A Service Defect shall not include any instance in which the Service operates incorrectly as a result of Client’s misuse, modification or alteration of the Service or incorrect operation due to Client’s use of improper, inadequate or defective hardware, software and/or internet service.

“Service Defect Correction” means programming the modifications, additions, or deletions which when made or added to the Service, revises the Service so as to cause it to materially conform to the Documentation, or a procedure or routine, that, when observed or followed in the ordinary operation of the Service eliminates the practical adverse effect, if any, on Client, of any Service Defect.

“Software” means, collectively, RoutingBox and RoutingBox Mobile.

“Training Services” means those training services provided by Founders Software to Client as described in the Agreement

“Updates” enhancements, modifications, or patches for the Software prepared for production environment, typically not on a “for hire” basis.

1.1 Provision of Services.   Subject to the terms of this Agreement, during the Term, Founders Software grants to Client the nontransferable, nonexclusive right to use the Service and any Documentation that may now or hereafter be provided or disclosed to Client by Founders Software in the course of providing the Service for Client’s internal business operations. The means and methods of providing the Service are under the sole control of Founders Software.

1.2 RoutingBox Editions.  The editions of RoutingBox are Broker, StartUp, Pro, Premium, and Ultra (each, an “Edition”). Each Edition provides different levels of software features, training, resources, and customer service available to Client (the “Edition Features”). The most current Edition Features can be found at https://routingbox.com and are subject to change without notice due to the frequency of updates and improvements to the Service. The Service shall be limited to the Edition Features provided by the Edition Client has selected in this Agreement. The Broker Edition of RoutingBox is not listed on the web address listed above. The Broker Edition is restricted to usage of the Assignment, Dispatch, and Tracker screens in RoutingBox and access to RoutingBox Mobile.

Client may upgrade their Edition at any time with written notice, but Edition downgrades can only be requested at the end of the Initial Term or then-current Renewal Term. For the avoidance of doubt, Start-up is an upgrade to Broker, and Pro is an upgrade to StartUp, Premium is an upgrade to Pro, and Ultra is an upgrade to Pro.

1.3 Software Guidelines.   The rights granted to Client in this Agreement are subject to all of the following agreements and restrictions:

1. Client shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, use on a timesharing basis, use or permit others to use on a service bureau basis, disclose or otherwise commercially exploit or make the Service available to any third party (including, without limitation, to any affiliate of Client).
2. Client shall use the Service only in connection with the management of its trips, clients, drivers and vehicles for which Client acknowledges and agrees are only trips for which Client reports revenues under United States federal tax identification number.
3. Client shall not, nor shall it attempt or permit any third party to, modify, make derivative works of, disassemble, reverse compile, reverse engineer or derive or determine the source code of any part of the Software, the Documentation or Founders Software’s computer hardware, software, configuration or system through which Founders Software provides the Service (collectively, the “Host System”), or access or use the Service or Host System in order to build a similar or competitive product or service. Client understands and agrees that the Host System contains valuable, confidential, proprietary trade secrets of great value to Founders Software  the disclosure, loss or circumvention of which would cause Founders Software great and irreparable harm.
4. Other than Client Data, or as otherwise expressly stated herein, no data or part of the Software or the Host System may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, without limitation, electronic, electro-magnetic, mechanical, photocopying, recording, residual recollection, or other means.
5. To the fullest extent permitted by applicable law, Client shall not disclose any review or analysis of the Software or the Host System to any third party, including, without limitation, the results of any tests, without Founders Software’s prior written approval.
6. Client will ensure that any use of the Software or the Host System by Client is in accordance with the terms of this Agreement. Further, Client shall maintain the security of all user names and passwords used to access the Service. Client shall allow the use of the Service and Host System only by Client’s employees and Client’s independent contractors with whom Client has entered into written agreements with respect to such independent contractors’ use of the Host System with terms no less protective of Founders Software’s rights than the terms of this Agreement. Client acknowledges and agrees that Client is responsible for all access to and use of the Software and Host System by users using Client’s user name, password and/or other authentication credentials. Client agrees to prevent unauthorized third parties from accessing or using the Software and Host System using Client’s user name, password and/or other authentication credentials.
7. Client is solely responsible for obtaining and maintaining the necessary software, hardware, internet connectivity, and all other systems and devices in order to access and use the Host System. System requirements necessary for proper function can be found at https://founderssoftware.com/hipaa-baa/, and are hereby incorporated into this Agreement by reference.
8. Client may not disseminate or transmit any material using the Host System in any way that is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way.
9. Client may not disseminate or transmit any material that otherwise may: (i) constitute a criminal offense; (ii) give rise to civil liability; or (iii) violate applicable law (including, without limitation, the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), rule or regulation. Client shall, at all times, comply with all applicable law. The parties shall comply with the terms and conditions of the HIPAA business associate agreement which can be found at https://intelligentbits.com/hipaa-baa and is hereby incorporated into this Agreement by reference.
10. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software, Documentation, Services, or Host System.

2.1 Fee Schedule. In consideration of Client’s rights to access and use the Service as provided herein, Client shall pay to Founders Software (a) a non-refundable deposit (the “Deposit”) listed in this Agreement, payable on the Effective Date, which shall be applied toward the first invoice(s) of monthly fees owed by Client after Client completes training and begins regularly processing trips using the Software; and (b) the fees (the “Fees”) listed in this Agreement. The Fees will be billed by Founders Software within approximately ten (10) days after each monthly billing period and are payable by Client on or before the due date set forth on each invoice. Client will be assessed late fees of 1.5% per month, or the maximum rate allowed by law if less, on all amounts due from Client to Founders Software which are not timely received by Founders Software  All pricing and other terms of this Agreement are confidential, and Client agrees not to disclose them to any third party. All amounts are payable in U.S. Dollars and are exclusive of all taxes, levies, or duties imposed by taxing authorities (other than taxes imposed on Founders Software’s net income), and Client shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed. Client will provide Founders Software with complete and accurate billing and contact information. Client acknowledges and agrees that all fees paid hereunder for access to and use of the Service are not subject to any refund except as expressly set forth herein. In addition to any other rights of Founders Software, Founders Software reserves the right to suspend or terminate this Agreement and Client’s access to the Service if Client’s account becomes delinquent.

2.2 Limitation of Access. If any monthly payments which are billed by Founders Software in arrears are not paid within forty nine (49) days after the date of the applicable invoice, then, in addition to late fees under Section 2.1 and all other remedies available to Founders Software under this Agreement and under law, Founders Software shall have the right to immediately suspend Client’s use of the Service until payment arrangements satisfactory to Founders Software have been made.

2.3 Reconnection Fees. Founders Software reserves the right to impose a one hundred fifty dollar ($150) reconnection fee in the event Client is suspended and thereafter requests access to the Service.

2.4 Fee Commencement Date. Founders Software will begin charging the Fees on the Fee Commencement Date.

3.1 Ownership of Founders Software Materials. Founders Software (or Founders Software’s third party licensors, to the extent applicable) is, and shall at all times remain, the sole and exclusive owner of all right, title, and interest in and to the Software, Documentation, Services, and Host System, including, without limitation, intellectual property rights.

3.2 Ownership of Custom Modifications. Founders Software is, and shall at all times remain, the sole and exclusive owner of all right, title, and interest in and to all Custom Modifications, all developments made in connection with the Services, all improvements upon the Software, Documentation, Services, or Host System, and all other 5 deliverables supplied by Founders Software under this Agreement, whether developed independently of the Services or in connection with the Services. To the extent that Founders Software is not automatically considered the owner of any of the foregoing, Client agrees to assign and does hereby assign to Founders Software all right, title, and interest in and to all such materials and agrees to execute, or cause to be executed, any documents Founders Software deems necessary to effect such assignment.

3.3 No Implied Rights. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement shall be construed as granting Client, or any third party, any right, title, or interest in or to the Software, Documentation, Services, Host System, Custom Modifications, training materials, methods, or any other materials provided by Founders Software to Client, whether by implication, estoppel, or otherwise.

4.1 Acknowledgment of Proprietary Materials; Limitations on Use. Client acknowledges that the Host System, including, without limitation, the Software and Documentation, are protected under the copyright laws of the United States of America and embody valuable, confidential and secret information proprietary to Founders Software  the development of which required the expenditure of considerable time and money by Founders Software  Client shall treat and shall require users to treat the Host System, including, without limitation, the Software and Documentation, in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy or disclose the same for any purpose that is not specifically authorized under this Agreement.

4.2 Communication of the Terms and Restrictions of this Agreement. Client agrees to communicate the terms and restrictions contained in this Agreement to, and ensure compliance with such terms and restrictions through written agreement by, all persons under its employment, direction, or control who have access to the Service, in whole or in part.

4.3 Secure Handling. Client shall require that all Documentation delivered to or downloaded by Client be kept on Client’s premises or secure off-site backup premises in a secure manner so as to preclude unauthorized persons from having access thereto, and Client shall permit such Documentation to be accessed only by Client’s employees with a legitimate need for the purposes of this Agreement.

4.4 Copyright and Trademark Notices; Proprietary Legends. Client shall not permit any personnel of Client to remove any copyright or trademark notice or proprietary or other legend or restrictive notice contained or included in any Documentation provided by Founders Software  and Client shall not permit Client personnel to reproduce or copy any such material except as specifically authorized hereunder.

4.5 Client’s Obligations Respecting Access. As much as possible, Client shall limit use of and access to the Services and Documentation to such employees of Client as are directly involved in the use thereof by Client, and Client shall (a) disclose such information only to employees of Client who Client reasonably believes will not violate the provisions of this Agreement and (b) prevent all of Client’s employees from having access to any such information that is not required in the performance of their duties for Client. Client shall, if and as requested by Founders Software, provide Founders Software with written notice of all employees or consultants of Client who have been accorded access to the Services or Documentation in the course of their employment by Client.

4.6 Client Data.

1. Ownership. Client may provide Client’s Data to Founders Software in connection with this Agreement. Client Data is, and shall at all times remain, the sole and exclusive property of Client and all right, title, and interest in the same is reserved by Client.
2. Founders Software Use of Client Data. Client hereby grants to Founders Software a limited, royalty-free, fully-paid up, nonexclusive, sublicensable license to collect, process, store, generate, and display Client Data as necessary in providing of the Service.
3. Extraction of Client Data. To the extent reasonably available during the Term, Founders Software shall provide Client, without charge, an extract of the Client Data within a reasonable time after Client’s written request, in a manner determined by Founders Software based upon the size of the Client Data extract. Following termination, expiration, or suspension of at least ninety (90) days of this Agreement, Founders Software will only retain Client Data as required under applicable statute, regulation, or other legal requirement, and such Client Data may be irretrievably deleted by Founders Software.
4. Backup and Recovery of Client Data. As a part of the Services, Founders Software is responsible for maintaining a backup of Client Data and for an orderly and timely recovery of such data in the event that the Service may be interrupted.
5. Loss of Client Data. Client acknowledges that Founders Software is not responsible for any electronic communications or Client Data which are lost, altered, intercepted, or stored during the transmission of such electronic communications or Client Data across networks not owned or operated by Founders Software.

5.1 Limited Warranty of Conformity. Founders Software warrants, for the benefit only of Client, that from the Effective Date to the termination of this Agreement that the Service shall conform in all material respects to the specifications contained in any Documentation (except for modifications, if any, made by Client or by Founders Software at the request of Client).

5.2 Limitation on Service Defect Correction. For any nonconformity constituting a Service Defect in the Service for which Founders Software is responsible, Client’s sole and exclusive remedy for such Service Defect is for Founders Software to use commercially reasonable efforts to provide Service Defect Corrections with respect to such Service Defect; provided, however, Founders Software shall not be obligated to correct, cure, or otherwise remedy any Service Defect in the Service resulting from any (a) modification of the Software by Client or any third party acting on Client’s behalf, (b) misuse or damage of the Software other than by personnel of Founders Software  (c) accidents, fire, theft, neglect, abuse, acts of God or other such casualties, or any other external conditions or events which directly or indirectly result in a failure or malfunction or otherwise adversely affect the operation of the Service, or (d) failure of Client to notify Founders Software in writing of the existence and nature of such nonconformity or Service Defect promptly upon its discovery. THE REMEDY PROVIDED IN THIS SECTION 5.2 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 5.1, TO THE EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH LIMITATION CAUSES THIS WARRANTY OR ITS REMEDY TO FAIL OF THEIR ESSENTIAL PURPOSES.

5.3 Mutual Representations and Warranties. Each of Client and Founders Software represent and warrant that:

• a. it is a business duly organized, validly existing, and in good standing under the laws of its state of organization;
• b. it has all requisite power and authority to execute, deliver, and perform its obligations under this Agreement; and
• c. the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms.

5.4 Disclaimer. THE WARRANTIES IN SECTIONS 5.1 AND 5.3 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES FROM FOUNDERS SOFTWARE  EXCEPT AS EXPRESSLY STATED IN SECTIONS 5.1 AND 5.3 OF THIS AGREEMENT, FOUNDERS SOFTWARE MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO THE SERVICES, SOFTWARE, OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES (EXPRESS OR IMPLIED) ARE EXPRESSLY DISCLAIMED BY FOUNDERS SOFTWARE.  FOUNDERS SOFTWARE DOES NOT GUARANTEE THAT THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT OUNDERS SOFTWARE WILL CORRECT ALL ERRORS. CLIENT ACKNOWLEDGES THAT OUNDERS SOFTWARE WILL NOT BE LIABLE FOR ANY ERRORS IN DATA ACCESSED THROUGH THE SERVICES AND THAT CLIENT IS RESPONSIBLE FOR REVIEWING, CONFIRMING, AND VALIDATING ALL DATA, REPORTS, AND FORMS THAT MAY BE GENERATED BY THE SERVICES. FOUNDERS SOFTWARE IS NOT RESPONSIBLE FOR DATA LOSS. IF THE SERVICES ARE USED IN CONNECTION WITH ANY MEDICAL TREATMENT OR SERVICES, CLIENT AGREES TO ACCEPT ALL RESPONSIBILITY IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, RESPONSIBILITY FOR INJURY, DEATH, DAMAGE, AND/OR LOSS RELATED TO TREATMENT OR SERVICES.

5.5 Limitation on Liability.

1. NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT SHALL FOUNDERS SOFTWARE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, OR DIMINUTION OF VALUE, ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH ANY USE OR OF THE SERVICES BY CLIENT OR ANY BREACH OF THIS AGREEMENT BY FOUNDERS SOFTWARE,  REGARDLESS OF: (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT FOUNDERS SOFTWARE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. MAXIMUM LIABILITY. IN NO EVENT SHALL FOUNDERS SOFTWARE’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH THE AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PROCEEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.
3. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE SERVICES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY FOUNDERS SOFTWARE, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE SERVICES.

6.1 Indemnification of Founders Software by Client. To the fullest extent permitted by law, Client shall indemnify, defend, and hold Founders Software, its affiliates, and their respective officers, directors, employees, and agents harmless from and against any and all claims, actions, liabilities, losses, damages, expenses, and costs (including, without limitation, reasonable attorneys’ fees with interest and disbursements), directly or indirectly, arising out of, related to, resulting from, or in connection with, in whole or in part, (a) Client’s use of the Services other than in accordance with this Agreement; (b) Client’s modification of the Services if any such modifications infringe upon any third party’s intellectual property; (c) Client’s negligence or willful misconduct; (d) Client’s breach of this Agreement; or (e) Client’s violation of law. In addition, Client will be responsible for all costs and expenses, including, without limitation, reasonable attorneys’ fees with interest and disbursements, incurred by Founders Software in enforcing any term or condition of this Agreement and Client will indemnify and hold harmless and promptly reimburse Founders Software for such costs and expenses.

6.2 Defense of Client by Founders Software. Founders Software agrees to defend, at its own expense, any action against Client brought by a third party to the extent that the action is based on a claim that the Services directly infringe any U.S. intellectual property right, and Founders Software will pay any costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Founders Software’s obligations under the preceding paragraph with respect to a particular action are conditioned on (a) Client promptly notifying Founders Software of the action in writing, (b) Client giving sole control of the defense of the action to Founders Software (including any related settlement negotiations), and (c) Client cooperating with Founders Software in the defense of the action. Notwithstanding the foregoing, Founders Software will have no obligation or liability for any infringement action that is based on (i) use of the Services for an unintended purpose, (ii) use of the Services in combination with other products, or (iii) any modification of the Services made by a party other than Founders Software. This section states Founders Software’s entire liability and Client’s sole and exclusive remedy for infringement actions.

7.1 Custom Modifications. If applicable, Founders Software shall make the Custom Modifications as described in the separate Addendum, or both (“Custom Modifications”). Unless explicitly stated otherwise in writing, all Custom Modifications shall be subject to this Agreement.

7.2 Fees; Payment. The fees for all Custom Modifications shall be mutually agreed upon by the parties and shall be included on the separate Addendum, as applicable. Founders Software shall invoice Client concurrent with any Addendum for Custom Modifications. Unless otherwise agreed upon in an Addendum, fees for Custom Modification shall be due and payable as follows: 50% before the commencement of any work thereon and 50% upon completion and implementation into the Service. Client shall pay the invoiced amount upon receipt of such invoice. Any amount not paid within thirty (30) days after date of the invoice shall bear interest at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less.

8.1 Support and Maintenance Services. During the Term, Founders Software shall provide support and maintenance services, as set forth in Exhibit C, to Client in the use and operation of the Host System and Service. Support and maintenance services will be provided by appropriately experienced and trained personnel of Founders Software.Founders Software shall not be responsible for correcting Service Defects in any version of the Software other than the latest New Release of the Software. Founders Software may provide bug fixes, corrections, modifications, enhancements, upgrades, and new 9 releases to the Service to ensure the functionality of the Service, as described in the Documentation, is available to users.

8.2 Training Services. Founders Software shall provide Training Services, if any, as defined in Exhibit D and as limited by Section 1.2. The Fees shall be inclusive of the fees for Training Services, unless Client requests additional training. If Client cancels a training session with less than forty-eight (48) hours’ notice or does not attend a scheduled session, Founders Software may elect to count this missed session as one of their sessions.

8.3 Audit Rights of Founders Software. Upon notice, Founders Software shall have the right to audit Client’s use of the Services and Documentation to confirm compliance with this Agreement. Client shall fully cooperate with all such audits which shall include, without limitation, providing full access to Client’s facilities and personnel. If Founders Software determines that Client has violated this Agreement, then, in addition to any other rights and remedies available to Founders Software as a matter of law or equity, Client shall pay for all costs and expenses incurred by Founders Software in connection with the audit. No more than once annually, Founders Software shall have the right to request from Client, and Client shall promptly provide to Founders Software upon such request, written certification from Client, signed by an officer of Client, certifying Client’s compliance with this Agreement.

8.4 Additional Charges and Expenses. In the event Founders Software provides any support and maintenance services beyond those set forth in Section 8.1, Founders Software shall invoice Client for, and Client shall pay, such additional support and maintenance services in accordance with rate schedule in Exhibit C. Founders Software shall also invoice Client for, and Client shall pay, all expenses incurred as a result of additional support and maintenance services, including, without limitation, mailing expenses of any kind, telephone and facsimile calls, and reasonable travel expenses, including, without limitation, airfare, meals, lodging, rental cars, parking fees, etc. Additionally, if a mutually agreed training session for the Software is scheduled, and Client subsequently misses such session without prior notice of at least 2 hours, Founders Software reserves the right to charge a one hundred fifty dollar ($150) no-show fee for its time lost due to the no-show. Client shall pay Founders Software all such amounts upon receipt of any such invoice. Travel time to and from a Client site will be billed. Any amount not paid within thirty (30) days after date of the invoice shall bear interest at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less.

8.5 Hosting Infrastructure, Maintenance, Updates. Founders Software is committed to providing an industry-standard, secure, properly performing available hosted infrastructure. The Host System will reside on computer hardware and software systems which will be located in one or more secure, professionally managed third party data centers. The Host System is monitored with notification and alerts to our support team to ensure both availability and performance. From time to time, scheduled system maintenance may be required. If practicable, scheduled maintenance will typically take place over a weekend and last not more than 1-2 hours. If practicable, scheduled maintenance will be planned to minimize the impact to the Service. Founders Software is not responsible for other infrastructure issues that do not directly affect availability of the Service, but that prohibit users from using the Services (like an outage of Client corporate network or internet connectivity). Updates do not typically require system downtime or cause any impact to users. However, to minimize any impact to users, if practicable, updates will be scheduled to occur outside of normal peak hours. If practicable, Founders Software will endeavor to provide no less than fifteen (15) calendar day’s prior written notice to Client of all non-emergency maintenance to be performed on the Host System, such written notice including a description of all maintenance to be performed. For emergency maintenance, Founders Software shall provide as much prior notice as practicable to Client and shall provide a description of all maintenance performed either prior to or after such emergency maintenance.

9.1 Term. This Agreement shall commence upon the execution of this Agreement by both parties duly authorized representatives, with the effective date being the date on which the last of the two parties executes this Agreement 10 (the “Effective Date”) and will continue for an initial period of one (1) year (the “Initial Term”). This Agreement will automatically renew for additional successive periods of one (1) year (each, a “Renewal Term”) at the expiration of the Initial Term and at the expiration of any Renewal Term(s). Either party may prevent the automatic renewal of this Agreement by providing written notice to the other party of such non-renewal not less than thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and any and all Renewal Terms, if any, are referred to, collectively, as the “Term”.

Notwithstanding the foregoing, if Client chooses the RoutingBox Essentials Edition in Exhibit A, the Term shall be month-to-month provided Client has not upgraded their Edition. For the avoidance of doubt, if Client has requested an Edition upgrade as explained in Subsection 1.2, the Term immediately converts to a one (1) year period commencing on the date Client submitted a written request to upgrade.

9.2 Suspension. Founders Software reserves the right to suspend Client’s access to and use of the Services for Client’s breach of this Agreement, or if Founders Software determines that Client’s use of the Services is causing, or may cause, immediate harm to Founders Software or to others. Founders Software will work with Client to resolve issues that resulted in the suspension of the Services. Client acknowledges and agrees that Founders Software will not be liable to Client or to any third party for any damages or liability that arises out of, relates to, or results from, the suspension.

9.3 Termination. Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure the breach to the non-breaching party’s reasonable satisfaction within thirty (30) days after receiving notice of the breach. Notwithstanding the foregoing, Founders Software may terminate this Agreement immediately upon notice if Client breaches Section 1.3 of this Agreement, without any cure period.

9.4 Effect of Termination. Upon termination or expiration of this Agreement: (a) Client shall immediately return to Founders Software  all Documentation and Founders Software shall be permitted to immediately deactivate Client’s access to, and use of, the Services; (b) within a reasonable period of time after the date of termination or expiration of this Agreement, upon written request by Client Founders Software shall extract and deliver Client Data to Client in the format selected by Founders Software  and (c) after 90 days from the date of termination of expiration of this Agreement, Founders Software shall be permitted to remove or overwrite all Client Data from Founders Software’s systems; provided, however, that Founders Software may retain a copy of Client Data to the extent required by applicable law. All provisions of this Agreement which by their nature should survive any termination or expiration of this Agreement will so survive and may be enforced at any time after the date of termination of expiration.

9.5 Liquidated Damages. If this Agreement is terminated for any reason, other than by Client under Section 9.3 or non-renewal of the Term under Section 9.1, then Client acknowledges that such termination constitutes a material breach of this Agreement. Client further acknowledges that the actual damages likely to result from such material breach are difficult to estimate as of the Effective Date and may be difficult for Founders Software to prove. Accordingly, Client agrees that it shall pay to Founders Software, within five (5) days after the date of termination, the amount calculated as follows: monthly Service Access Fee, plus applicable taxes and fees, for the balance of the Term (the “Liquidated Damages Amount”). The parties intend that Client’s payment of the Liquidated Damages Amount would serve to compensate Founders Software for Client’s material breach and the parties do not intend for it to serve as punishment or penalty for any such material breach by Client.

10.1 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless set forth in a document that purports to amend this Agreement and that is executed by both parties hereto.

10.2 Client’s Responsibilities. Client shall be responsible for procuring, installing and maintaining all equipment and devices, telephone lines, internet connectivity, communications and data interfaces and other hardware necessary to access the Services including, without limitation, the system requirements specified in Section 1.3(g).

10.3 No Assignment. Client shall not, directly or indirectly, by operation of law or otherwise, sell, transfer, assign, sublicense or subcontract this Agreement or any right or obligation hereunder. Any assignment made in contravention of this provision is void.

10.4 Payments. All payments required under this Agreement shall be made to the Founders Software at its principal place of business in United States Dollars.

10.5 Taxes. In addition to any other fees and expenses payable under this Agreement, Client shall pay any governmentally imposed tax, levy, fee, assessment, charge or imposition of any nature assessed against or imposed with respect to or in connection with the services rendered under this Agreement. Client shall pay to Founders Software any such tax, levy, fee or imposition upon the written request of the Founders Software  if accompanied by evidence of the imposition of any such tax, levy, fee or imposition.

10.6 Force Majeure. Founders Software shall not be liable for any delay or failure in performance of any obligation under this Agreement, which are caused by, or in any manner arise from, directly or indirectly, any cause beyond Founders Software’s reasonable control.

10.7 Governing Law. The validity, construction, and performance of this Agreement shall be governed exclusively by the laws of the State of New York, United States of America, without regard to conflict of law principles.

10.8 Severability. The provisions of this Agreement will be severable, and if any clause, sentence, paragraph, provision or other part of this Agreement will be adjudged by any court of competent jurisdiction to be invalid, such judgment will not affect, impair or invalidate the remainder of this Agreement, which remainder will continue in full force and effect.

10.9 Notices. All notices sent, communicated or delivered to either of the parties hereto shall be in writing addressed to such party at its address as first set forth in this Agreement or at such other address as such party shall last have designated for such purpose by written notice to the other, and shall be deemed to have been effectively given five (5) days after having been posted by, postage-paid First Class U.S. Mail or e-mailed or, if delivered by overnight carrier, or faxed, when received.

10.10 Arbitration. All disputes, controversies or differences, which may arise between the parties out of or in relation to or in connection with this Agreement, or the breach thereof, shall be finally settled by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, by which each party hereto is bound. In the event Founders Software or Client brings a claim for arbitration, such arbitration shall occur in Buffalo, New York. Each party shall choose one arbitrator and the two arbitrators so chosen shall choose a third. All arbitrators shall be fluent in speaking and writing English. The proceedings shall be conducted in the English language and no translations of documents, testimony or argument from the English language into any other language shall be required. Representatives of the parties who are not licensed attorneys in the United States or residents therein may participate or assist in the proceedings. A stenographic record shall be made of the proceedings at the equal expense of the parties. In connection with such Arbitration, all periods of notice provided 12 for in applicable arbitral rules shall be extended by ten (10) additional days. The arbitrators shall state the reasons for their award. The obligation of the parties to submit any dispute arising under or related to this Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this Agreement.

10.11 Equitable Remedies. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under this Agreement would give rise to irreparable harm to Founders Software for which monetary damages would not be an adequate remedy and in the event of a breach or a threatened breach by Client of any such obligations, Founders Software shall, in addition to any and all other rights and remedies that may be available to Founders Software at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Client agrees that Client will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 10.11.

10.12 No Third-Party Beneficiaries. Except for indemnified parties set forth in Section 6.1, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

10.13 Attorney’s Fees and Litigation Expenses. In the event either party commences an arbitration proceeding pursuant to Section 10.10 above, the prevailing party shall be entitled to the award of its reasonable attorney’s fees, together with its arbitration expenses, expert witness fees, discovery expenses and travel expenses.

10.14 Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication which is not intended to be disclosed to third parties.

1. Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (i) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or (iii) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (w) already in the possession of the receiving party without an obligation of confidentiality; (x) developed independently by the receiving party, as demonstrated by the receiving party, without violating any obligations of confidentiality; (y) obtained from a source other than the disclosing party without an obligation of confidentiality; or (z) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Agreement, in all cases and for all matters, Client Data shall be deemed to be Confidential Information unless it is subject to one of the aforementioned exceptions.
2. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to require their respective 13 employees, agents, and subcontractors to keep all Confidential Information confidential upon terms that are no less restrictive than those contained in this Agreement.
3. Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
4. Surrender of Confidential Information upon Termination. Upon termination of this Agreement each party shall, within five (5) calendar days from the date of termination, return to the other party all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which is in such party’s possession, custody, or control. Should Founders Software or Client determine that the return of any Confidential Information is not feasible, such party shall destroy the Confidential Information and shall certify the same in writing within five (5) calendar days from the date of termination to the other party.

10.15 Third Party Audits; Investigations; Subpoenas. Founders Software may, from time to time, be required to respond to or comply with audit requests, investigations, subpoenas, and the like related to Client and Client’s business (collectively, “Information Requests”) from regulatory agencies and other third parties, including, without limitation, the state Attorneys General. Client acknowledges that Founders Software will incur costs and expenses, including, without limitation, those related to data extraction, and reasonable attorneys’ fees and disbursements, in connection with such Information Requests. Client agrees that Client shall promptly reimburse Founders Software for all reasonable costs and expenses (including, without limitation, those related to data extraction, and reasonable attorneys’ fees and disbursements) arising from Founders Software’s compliance with Information Requests. This reimbursement obligation is in addition to and does not limit any other rights or remedies available to Founders Software under this Agreement or under law.

Technical Support. Founders Software will make commercially reasonable efforts to provide to Client commercially reasonable technical support (“Technical Support”) via email or support tickets through Founders Software’s customer service web portal between the hours of 7:00 AM and 8:00 PM Eastern Standard Time, on Founders Software regular business days (Monday through Friday, excluding holidays). Additionally, RoutingBox Essentials Plus, RoutingBox Premium, and RoutingBox Ultimate Edition Clients may access Technical Support via phone, or live web chat through the software. RoutingBox Broker Clients will not have access to Founders Software Technical Support. Support services will be provided by the broker with the master agreement with Founders Software.

Founders Software is not obligated to provide assistance in connection with issues unrelated to the Service such as, without limitation, Client hardware issues, internet connectivity issues, viruses and Windows updates on Client’s computers. Any support which is provided by Founders Software to address an issue which is determined to be unrelated to the Service shall be charged at a rate of $150.00 per hour, with a one (1) hour minimum and supplemental billing increments of thirty (30) minutes.

Authorized Contacts will make Technical Support requests by contacting Founders Software’s Technical Support staff or by submitting a request via Founders Software’s customer service web portal.