FINANCIAL MANAGEMENT SOFTWARE, INC. — SOFTWARE AS A SERVICE TERMS AND CONDITIONS

These Software as a Service Terms and Conditions (the “Terms”) are published by Financial Management Software, Inc. (“FMSI”) and govern the use of FMSI’s Services by the entity identified as “Customer” in the applicable ordering document (“Order Form”) that incorporates these Terms by reference. By executing an Order Form, or by accessing or using the Services, Customer agrees to be bound by these Terms. These Terms, together with the Order Form, constitute the parties’ “Agreement.” FMSI may update these Terms from time to time by posting a revised version at the URL specified in the applicable Order Form. FMSI will provide Customer with at least thirty (30) days’ prior written notice of any material changes. Customer’s continued use of the Services after the effective date of any update constitutes acceptance of the updated Terms. Customer should access these Terms from time to time to review updates or changes that may impact Customer. If at any time Customer does not accept the current version of the Terms, Customer must immediately stop using the Services.

“Application(s)” as used herein means those FMSI software application programs set forth on an Order Form which are made accessible for Customer to use under the terms of this Agreement. “Services” used herein, means accessibility to the commercially available version of the Applications, and all such services, items, and offerings accessed by Customer therein.

1. TERM

1.1 Unless otherwise terminated or canceled as provided for herein, this Agreement shall commence on the date of signature by the last party (the “Effective Date”) and continue for the initial term of the Services set forth on the Order Form (“Initial Term”). This Agreement shall automatically renew at the end of the Initial Term for successive renewal terms of the Services as indicated on the Order Form (each a “Renewal Term”), unless either party notifies the other in writing of its decision not to renew at least ninety (90) days prior to the end of the Initial Term or any subsequent Renewal Term.

1.2 Termination or cancellation of one Application shall not terminate this Agreement, and the parties shall remain free to enter into future Order Forms pursuant to this Agreement and during the term of this Agreement. In addition, termination or cancellation shall not relieve either party of any previously accrued obligations or of any obligations which by their nature are reasonably intended to survive termination or cancellation. Notwithstanding the foregoing, if for any reason FMSI Analytics is terminated, FMSI Staff Scheduler forecasts and Web access will automatically terminate.

1.3 FMSI may terminate this Agreement for convenience at any time upon written notice to Customer. In the event of such termination, FMSI shall refund to Customer any portion of the prepaid Service Fees that corresponds to Services not yet performed as of the effective date of termination, based on the relative value of Services actually delivered prior to termination compared to the total Services contracted for during the applicable Term. The calculation of such refund shall account for any front-loaded or uneven delivery of Services during the Term. Termination under this Section shall not relieve either party of any obligation accrued prior to the effective date of termination.

1.4 Either party may terminate the Services, the Agreement, or an Order Form, in whole or in part, upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice of such breach; provided that (a) a breach of Customer’s payment obligations shall have a cure period of ten (10) days, and (b) a breach incapable of cure shall entitle the non-breaching party to terminate immediately. Notwithstanding the foregoing, FMSI may suspend the Services immediately upon notice in the event of any Customer breach of Sections 3 (Rights to Use), 4 (Acceptable Use), or 12 (Confidential Information), and Customer’s fee obligations shall continue during any period of suspension.

1.5 Either party may terminate the Agreement or any Order Form, in whole or in part, upon written notice, if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) makes a general assignment for the benefit of creditors; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign insolvency or bankruptcy laws; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

1.6 Upon termination of the Agreement by a respective party for any reason: (i) Customer shall pay FMSI within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination; (ii) Customer’s right to access and use the Applications shall be revoked and be of no further force or effect; (iii) Customer agrees to timely return all FMSI Confidential Information and FMSI-provided materials related to the Services to FMSI at Customer’s expense or, alternatively, destroy such materials and provide FMSI with an officer’s certification of the destruction thereof; and (iv) all provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.

1.7 At any time and at no additional charge throughout the Term and for no more than fifteen (15) days after expiration or termination of the Agreement for any reason, FMSI shall make available to Customer a mechanism to retrieve all Customer Content (as defined in Subsection 6.1 below) in a standard, machine-readable format. After such period, FMSI shall have no further obligation to store or make available the Customer Content and will securely delete all Customer Content without liability of any kind.

2. FEES AND PAYMENT

2.1 All fees, charges, pricing models, and units of measure (including any recurring and one-time fees) are as set forth on the applicable Order Form.

2.2 Unless otherwise provided, price rates shall be valid for the Initial Term. At the expiration of the Initial Term, and at each annual anniversary of that date thereafter, FMSI may alter the price rates to reflect its then-current pricing, by providing Customer written notice of such adjustment at least sixty (60) days before the start of the Renewal Term. Continued use of the Services after the commencement of the Renewal Term shall be deemed acceptance of the adjusted pricing. If Customer does not agree to the adjusted pricing, Customer may elect to terminate this Agreement effective at the end of the then-current Term by providing written notice to FMSI within thirty (30) days of receipt of the price adjustment notice. Absent timely notice of termination, continued use of the Services after the commencement of the Renewal Term shall be deemed acceptance of the adjusted pricing. For clarity, FMSI may also adjust pricing mid-Term for any Authorized User additions or additional Services ordered by Customer under a new Order Form.

2.3 Past due invoices will accrue interest at the rate of 1.5% per month (or the maximum rate permitted by Applicable Law, whichever is lower) beginning thirty (30) days from the date due and continuing until paid. Purchase orders or similar documents issued by Customer relating to this Agreement or an Order Form are for Customer’s internal use only and shall not affect this Agreement. If payments are not made within thirty (30) days from the date due, FMSI may, at its option, upon written notice of not less than ten (10) days to Customer, suspend providing Services to Customer until such time as Customer’s account is current; Customer’s obligation to pay all fees shall continue during any such suspension period. Customer shall reimburse on demand for any reasonable collection costs, including reasonable attorneys’ fees and costs, incurred by FMSI in connection with its enforcement of this Section 2.

2.4 Taxes: Subject to Customer’s tax exemption status (sales tax or otherwise), if any, the Customer shall be responsible for all sales, use, value added, excise and similar taxes imposed by any government or governmental agency with respect to the fees provided for in this Agreement or with respect to Customer’s use of the products or services or otherwise relating to this Agreement, except for any such taxes based upon the income of FMSI.

3. RIGHTS TO USE

3.1 Subject to the terms and conditions of the Agreement, FMSI hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable right to use during the Term and for internal business purposes only: a) the Applications and related services, including the user manuals published by FMSI relating to the features and functionality of the Applications (“Documentation”) and training materials; and, b) any embedded third-party software, libraries, or other components, which form a part of the Services. The Services contain proprietary trade secret technology of FMSI and its Suppliers. Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law. Customer shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Customer acknowledges and agrees that the right to use the Services is limited based upon the amount of the Service Fees to be paid by Customer. Customer agrees to use only the modules and/or features described on the Order Form. Customer agrees not to use any other modules or features unless Customer has licensed such additional modules or features. Customer may not relicense or sublicense the Services or otherwise permit use of the Services (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of FMSI. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with Applicable Laws. “Applicable Laws” means all local, state, national, and international laws, codes, legislative acts, ordinances, treaties, rules, rules of court, and orders applicable to: (a) the party’s respective business, and (b) Customer’s operation and use of the Services including, without limitation, all consumer protection, unfair and deceptive trade practice, and privacy and consumer credit laws; and all regulations promulgated under any of the foregoing.

3.2 Customer may authorize its third-party contractors and consultants to access the Services through Customer’s administrative access privileges on an as-needed basis, provided Customer: a) abides by its obligations to protect Confidential Information as set forth in this Agreement; b) remains responsible for all such third-party usage and compliance with the Agreement; and c) does not provide such access to a competitor of FMSI who provides workforce management services.

3.3 Customer acknowledges and agrees that, as between Customer and FMSI, FMSI retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing. Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.

3.4 FMSI will make updates and upgrades to the Services (tools, utilities, improvements, third-party applications, general enhancements) available to Customer at no charge as they are released generally to its customers as part of the Services. Customer agrees to receive those updates automatically as part of the Services.

3.5 FMSI reserves the right to change the Services, in whole or in part, including but not limited to, the Internet-based services, technical support options, and other Services-related policies. Customer’s continued use of the Services after FMSI posts or otherwise notifies Customer of any changes indicates Customer’s agreement to those changes.

3.6 If Customer or its Authorized Users provide suggestions, ideas, enhancement requests, recommendations, or other feedback relating to the Services (“Feedback”), FMSI may use, disclose, reproduce, sublicense, and otherwise exploit such Feedback without restriction or compensation, and without any obligation of confidentiality; provided, FMSI shall not publicly attribute such Feedback to Customer without Customer’s consent.

4. ACCEPTABLE USE

4.1 Customer will not use, or allow the use of, the Services in contravention of the Acceptable Use Policy further described in Exhibit A hereto (and, for URL-based deployments, as may be posted and updated by FMSI at the Terms URL as defined in Section 13.16) (the “Acceptable Use Policy”).

4.2 Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that all individuals or entities that directly (or through another Authorized User) accesses or uses the Services with any login credentials or passwords Customer uses to access the Services (“Authorized User(s)”) comply with Customer’s obligations under this Agreement.

4.3 Customer represents and warrants to FMSI that Customer has the right to publish and disclose the Customer Content in connection with the Services. Customer represents and warrants to FMSI that the Customer Content will comply with the Acceptable Use Policy.

4.4 FMSI may suspend the Services immediately upon written notice in the event of any security risk, negative impact on infrastructure or Acceptable Use Policy violation.

4.5 Customer shall not publish or disclose to any third party, or for any public purposes, any benchmarking or performance data or analyses relating to the Services (including uptime, response times, or feature comparisons) without FMSI’s prior written consent; provided, this does not restrict Customer’s internal evaluation or disclosures required by Applicable Laws.

5. CONNECTIVITY AND ACCESS

Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, networking, internet access, third-party services and related equipment and components); and (b) provide FMSI and FMSI’s representatives with such physical or remote access to Customer’s computer and network environment as FMSI deems reasonably necessary in order for FMSI to perform its obligations under the Agreement. Customer will make all necessary arrangements as may be required to provide access to Customer’s computer and network environment if necessary for FMSI to perform its obligations under the Agreement.

6. CUSTOMER CONTENT; AGGREGATED DATA

6.1 Customer grants to FMSI a limited, non-exclusive, non-assignable, revocable, royalty-free, non-sublicensable and non-transferable license to use Customer Content for the purposes of (a) FMSI’s performance under this Agreement; and (b) FMSI’s aggregation and irreversible anonymization of Customer Data to create Aggregated Data (as defined below). “Customer Content” means all data, in whatever form (i) Customer, its Affiliates, or their agents, including end users, or third parties acting on Customer’s behalf, enter into the Services or provide to FMSI; (ii) FMSI generates for Customer, its Affiliates or end users as a consequence of performing the Services; and (iii) any Personally Identifiable Data (as defined in Subsection 9.2 below) contained in any data described in (i) or (ii).

6.2 Customer shall own all Customer Content. FMSI acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Customer will ensure that all Customer Content conforms with the terms of this Agreement and Applicable Law. FMSI and its suppliers may, but shall have no obligation to, access and monitor Customer Content from time to time to provide the Services and to ensure compliance with this Agreement and Applicable Law. Customer is solely responsible for any claims related to Customer Content and for properly handling and processing notices that are sent to Customer regarding Customer Content.

6.3 FMSI owns all rights, title, and interest in and to any data that is derived from Customer’s and its Authorized Users’ use of the Services, provided such data is (a) aggregated with data from other customers, and (b) anonymized so that it does not identify Customer or any individual (“Aggregated Data”). FMSI may use Aggregated Data for purposes including, but not limited to, analytics, benchmarking, product improvement, and other business purposes.

7. IMPLEMENTATION, TRAINING, AND SUPPORT

7.1 Implementation. Unless otherwise indicated on an Order Form, FMSI will configure the Applications utilizing scheduled remote resources on a fixed fee, fixed scope basis. Application configuration will be based on information and workflows obtained from Customer during the discovery portion of the implementation. Customer shall provide FMSI with necessary configuration-related information in a timely manner to ensure that mutually agreed implementation schedules are met. FMSI and Customer’s implementation responsibilities are described more specifically in the Implementation Guidelines for each product, provided under separate cover.

7.2 Training. Basic training for the applications is included in the Customer’s Setup Fees as further described in the Implementation Guidelines.

7.3 Support. FMSI will provide telephone and email support 8:00 a.m. to 5:00 p.m., Eastern Standard time, Monday – Friday, excluding FMSI Holidays.

8. WARRANTIES; DISCLAIMER

8.1 Mutual Warranties. Customer and FMSI represent and warrant to each other that:

8.1.1 they have the full right and authority to enter into, execute, and perform their obligations under this Agreement and that no pending or threatened claim or litigation known to them would have a material adverse impact on their ability to perform under this Agreement; and

8.1.2 they (a) are duly organized, validly existing and in good standing under the laws of the jurisdiction of their incorporation or formation; (b) are duly licensed, registered, and qualified and in good standing in each jurisdiction in which the ownership of property or the conduct of their respective business requires such qualification, registration or licensing; and (c) have the power, authority and legal right to enter into and fully perform this Agreement and to perform the obligations required of them under this Agreement.

8.2 Customer Warranty. Customer represents and warrants to FMSI that Customer has obtained all consents necessary for the collection, processing and storing of Customer Content, and, to the best of Customer’s knowledge, such collection, processing and storage by Company will not violate the rights of any third party.

8.3 FMSI Warranty. FMSI represents and warrants to Customer that the Applications, under normal operation as specified in the Documentation and when used as authorized herein, will perform substantially in accordance with such Documentation during the Term. FMSI’s sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty contained in this Subsection 8.3 is limited to FMSI’s reasonable commercial efforts to correct the non-conforming Services at no additional charge to Customer. In the event that FMSI is unable to correct material deficiencies in the Services arising during the Term, after using FMSI’s commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer’s sole and exclusive remedy. FMSI’s obligations under this Subsection 8.3 are conditioned upon Customer notifying FMSI of the material breach in writing and providing FMSI with sufficient evidence of such non-conformity to enable FMSI to reproduce or verify the same.

8.4 EXCEPT AS PROVIDED FOR IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND FMSI HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT MAY OTHERWISE ARISE PURSUANT TO ANY STATUTE, CODE, COMMON LAW OR JUDICIAL DECISION. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, FMSI MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES, THE APPLICATIONS, NOR ANY RESULTS TO BE ACHIEVED THEREFROM.

9. DATA SECURITY

9.1 As part of the Services, FMSI shall provide those administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer data as described in Attachment B. Customer acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Customer should consider any particular FMSI supplied security-related safeguard as just one tool to be used as part of Customer’s overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.

9.2 FMSI will notify Customer promptly, without undue delay once FMSI becomes aware of unauthorized use, access, disclosure, modification, loss or destruction of Customer’s Personally Identifiable Data (“Security Breach”). “Personally Identifiable Data” as used herein means information concerning individually identifiable employees of Customer that is protected against disclosure under Applicable Law or regulation. FMSI does not classify the following events as a Security Breach: (a) unsuccessful attempts to penetrate FMSI’s computer networks or servers, (b) immaterial incidents that occur on a routine basis, such as general “pinging” or “denial of service” attacks, that do not result in unauthorized access to Customer’s Personal Data, or (c) any other activity unlikely to result in a risk to the rights and freedoms for individuals.

9.3 Customer represents that to the best of Customer’s knowledge such Personally Identifiable Data supplied to FMSI is accurate. Customer hereby consents to the use, processing or disclosure of Personally Identifiable Data by FMSI and FMSI’s Suppliers wherever located only for the purposes described herein and only to the extent such use or processing is necessary for FMSI to carry out FMSI’s duties and responsibilities under the Agreement or as required by law.

9.4 Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Customer agrees to provide notice to FMSI of any extraordinary privacy or data protection statutes, rules, or regulations which are or become applicable to Customer’s industry and which could be imposed on FMSI as a result of provision of the Services. Customer will ensure that: (a) the transfer to FMSI and storage of any Personally Identifiable Data by FMSI or FMSI’s Supplier’s data center is permitted under applicable data protection laws and regulations; and, (b) Customer will obtain consents from individuals for such transfer and storage to the extent required under Applicable Laws and regulations.

10. INDEMNIFICATION

10.1 FMSI shall defend Customer and its respective directors, officers, and employees (collectively, the “Customer Indemnified Parties”), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a “Claim”) alleging that the permitted uses of the Services infringe or misappropriate any United States or Canadian copyright or patent, and FMSI will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of FMSI’s settlement of such a Claim. In the event that a final injunction is obtained against Customer’s use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in FMSI’s opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, FMSI, at FMSI’s option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue using the Services as provided in the Agreement; or (b) replace or modify the Services so that the Services become non-infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Customer of the Service Fees paid by Customer for the infringing elements of the Services covering the period of their unavailability.

10.2 FMSI shall have no liability to indemnify or defend Customer to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than FMSI; (b) use of the Applications other than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service or software not provided by FMSI, where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Customer other than in accordance with the terms of the Agreement. Notwithstanding the foregoing, with regard to infringement claims based upon software created or provided by a licensor to FMSI or Suppliers, FMSI’s maximum liability will be to assign to Customer FMSI’s or Supplier’s recovery rights with respect to such infringement claims, provided that FMSI or FMSI’s Supplier shall use commercially reasonable efforts at Customer’s cost to assist Customer in seeking such recovery from such licensor.

10.3 Customer shall defend FMSI, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “FMSI Indemnified Parties”) from and against any and all Claims, and will indemnify and hold harmless the FMSI Indemnified Parties against liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees), arising out of: (a) employment-related claims arising out of Customer’s configuration of the Services; (b) Customer’s modification or combination of the Services with other services, software or equipment not furnished by FMSI, provided that such Customer modification or combination is the cause of such infringement and was not authorized by FMSI; (c) a claim that the Customer Content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person; (d) Customer’s breach or alleged breach of Applicable Law in connection with its use of the Services, including without limitation any data privacy, consumer protection, or financial services laws applicable to Customer’s business; or (e) Customer’s use of the Services in a manner that exceeds the scope of the license granted herein, including use by unauthorized third parties. FMSI shall have the right (but not the obligation) to participate in any such defense with counsel of its own choosing, at FMSI’s own expense. Customer will have primary control of the defense of any such action and all negotiations for its settlement or compromise, provided Customer shall not enter into any settlement that imposes obligations or restrictions on any FMSI Indemnified Party without FMSI’s prior written consent. FMSI will cooperate fully at Customer’s expense with Customer in the defense, settlement or compromise of any such action.

10.4 The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay’s impact on the defense. The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall cooperate fully, at the indemnifying party’s request and expense, with the indemnifying party in the defense, settlement or compromise of any such action. The Indemnified Party may retain its own counsel at its own expense, subject to the indemnifying party’s rights above.

11. LIMITATION OF LIABILITY

11.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, FMSI AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES.

11.2 EXCEPT FOR FMSI’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 ABOVE, THE TOTAL AGGREGATE LIABILITY OF FMSI OR FMSI’S SUPPLIERS TO CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, ARISING UNDER ALL CLAIMS IN THE AGGREGATE, SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY FMSI FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.

11.3 EXCEPT FOR FMSI’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 ABOVE, IN NO EVENT SHALL FMSI OR FMSI’S SUPPLIERS, THEIR RESPECTIVE AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER FMSI OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.

11.4 EXCEPT WITH RESPECT TO LIABILITY ARISING FROM FMSI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FMSI DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), CUSTOMER’S CONTENT OR APPLICATIONS, A THIRD PARTY’S UNAUTHORIZED ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.

12. CONFIDENTIAL INFORMATION

12.1 “Confidential Information” means all information disclosed or transmitted by the disclosing Party (the “Discloser”) to the receiving Party (the “Recipient”), or revealed to Recipient during performance of the Agreement, regardless of the manner in which such information is furnished, regardless of whether disclosed, transmitted or revealed before or after the Effective Date, which the Discloser considers to be its confidential, proprietary or non-public business information and/or trade secrets. Confidential Information includes, but is not limited to: (a) any data, information, or presentations that are marked as proprietary, confidential or with words of similar meaning; (b) other data, information and presentations that, due to its content or the manner or method of its disclosure, would lead a reasonable person to the conclusion that it is proprietary or confidential to the Discloser; (c) any data generated by the Recipient or any of the Recipient’s systems for the Discloser during the Agreement; or (d) any Personally Identifiable Data, disclosed, revealed or transmitted to the Recipient during the performance of the Agreement including PII about the customers, employees, job applicants, contractors, vendors, or other personnel of Discloser.

12.2 Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Unless otherwise agreed to in writing by the Discloser, the Recipient agrees: (a) except as expressly permitted in this Agreement, to keep the Discloser’s Confidential Information confidential and not disclose or reveal any such Confidential Information to any person or entity other than those employed or contracted by the Recipient who (i) are actively and directly participating in performing the Agreement, (ii) the Recipient determines has a need to know the Confidential Information for the purposes of the Agreement; and (b) not to use or reproduce Confidential Information of the Discloser for any purpose other than in the performance of the Agreement. The obligation of confidentiality shall survive for five (5) years after the return of such Confidential Information to the Discloser or five (5) years after the expiration or termination of the Agreement, whichever is later, as applicable. Notwithstanding anything herein to the contrary, each party acknowledges and agrees that all trade secrets shall be safeguarded by the Recipient as required by this Agreement for so long as such information remains a trade secret pursuant to Applicable Law.

12.3 Notwithstanding the foregoing, the Recipient may disclose Confidential Information to the extent required by Applicable Laws, including any governmental, judicial or administrative order; subpoena or discovery request; governmental investigation or audit; or similar request or demand; provided, the Recipient shall, unless legally prohibited, provide the Discloser with reasonable prior written notice sufficient to permit the Discloser an opportunity to seek a protective order or other measure to preserve the Confidential Information’s confidentiality. The Recipient agrees that it shall, to the extent requested by the Discloser, at the Discloser’s sole expense, cooperate with efforts by the Discloser to obtain such a protective order or other relief. Nevertheless, if the Discloser is unable to obtain, or does not seek a protective order or other measure to protect the confidentiality of the Confidential Information, and the Recipient is legally required or requested to disclose such Confidential Information, disclosure of that portion (and only that portion) of such Confidential Information may be made without liability under this Agreement.

12.4 Upon this Agreement’s termination or expiration, the Recipient will destroy all, or the requested portion, of the Discloser’s Confidential Information, including all copies, reproductions, summaries or extracts thereof; provided, however, that the Recipient: (a) may retain one copy of the Confidential Information with its legal counsel for use in connection with the Recipient’s obligations under this Agreement; (b) shall not be required to destroy or return any system back-up media such as copies of any computer records or files containing the Discloser’s Confidential Information that have been created pursuant to automatic archiving or back-up procedures on secured central storage servers, which cannot reasonably be deleted or returned; and (c) may retain copies as necessary for compliance with Applicable Laws. In lieu of destruction of the Confidential Information as required above, the Recipient may retain Confidential Information, after a request for destruction, if the Confidential Information is: (i) maintained in archive or back-up servers; and (ii) will not be accessed prior to its destruction in the ordinary course of business. The obligations of this Section 12 shall continue to be applicable and govern any Confidential Information of a Discloser retained by a Recipient under this Section.

12.5 If a party commits, or threatens to commit, a breach of this Section 12, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction.

12.6 This Agreement imposes no obligation upon either party with respect to the other party’s Confidential Information which the Recipient can establish: (a) is or becomes generally available to the public through no breach of the Agreement by the Recipient, (b) is already known or is independently developed by the Recipient without use of or reference to the Confidential Information, (c) was lawfully available to the Recipient before its disclosure by the Discloser without an obligation of confidentiality, (d) is disclosed to a third party without substantially the same restrictions set forth in this Section 12; or (e) is disclosed by the Recipient with the Discloser’s written consent; provided however, that the foregoing exclusions shall not apply to any Personally Identifiable Data.

12.7 Recipient’s incorporation of the Discloser’s Confidential Information into any of its own materials shall not render Confidential Information non-confidential.

12.8 All confidentiality obligations under this Agreement shall continue for five (5) years from the later of (a) the return or destruction of Confidential Information under Section 12.4, or (b) the Agreement’s termination or expiration; provided, however, that the foregoing termination provision shall not apply, to the extent Confidential Information includes any: (a) Personally Identifiable Data, which information shall be subject to, and protected under this Section 12 so long as such information is retained by Recipient; or (b) trade secrets, which information shall be subject to, and protected under this Section 12 as Confidential Information for so long as such information is a “trade secret” under Applicable Laws.

13. GENERAL

13.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflict of law rules. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the Agreement and waive and “opt out” of the Uniform Computer Information Transactions Act (UCITA), or such other similar law. The parties agree to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York for any dispute arising out of or relating to the Agreement. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE PARTIES AGREE THAT ANY CLAIMS WILL BE BROUGHT IN THEIR INDIVIDUAL CAPACITIES ONLY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.

13.2 The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.

13.3 Customer shall not assign the Agreement or the rights to use the Services without the prior written consent of FMSI and any purported assignment, without such consent, shall be void. For the avoidance of doubt, any Change of Control of Customer (as defined below) shall constitute an assignment requiring FMSI’s prior written consent. “Change of Control” means any transaction or series of related transactions resulting in (i) any person or entity acquiring beneficial ownership of more than fifty percent (50%) of the outstanding voting securities of Customer, or (ii) the sale of all or substantially all of the assets of Customer. FMSI may assign or transfer this Agreement, in whole or in part, without Customer’s consent, to (a) any affiliate of FMSI, (b) any successor entity in connection with a merger, acquisition, or sale of all or substantially all of FMSI’s assets, or (c) any purchaser of the business line to which this Agreement relates. FMSI will provide Customer with written notice of any such assignment.

13.4 Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefor, or lack of or delay in transportation (each a “Force Majeure Event”).

13.5 All notices given under the Agreement shall be in writing and sent postage pre-paid, if to FMSI, to the FMSI address on the Order Form, or if to Customer, to the billing address on the Order Form.

13.6 If there is a conflict among the documents comprising the Agreement, the following order of precedence applies: (1) the Order Form (including any schedules expressly attached thereto), (2) these Terms (including Attachments), and (3) any Documentation referenced for descriptive purposes only. Any preprinted terms on, or terms referenced solely by, Customer purchase orders or similar documents are for administrative convenience and have no legal effect and shall not modify the Agreement.

13.7 FMSI may identify Customer as a customer and use Customer’s name and logo in its customer lists, websites, and marketing materials in a manner consistent with Customer’s brand guidelines provided to FMSI, without disclosing pricing or confidential terms. Any press release requires the other party’s prior written consent. Customer will not use or refer to FMSI’s name, logos, or other trademarks in any publication, press release, advertisement, or public announcement except with FMSI’s prior written consent.

13.8 In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that this Agreement has been breached by the other party or by its Representatives, then such party will reimburse the non-breaching party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with all such litigation.

13.9 FMSI shall have the right to audit Customer’s records, systems, and use of the Services to verify compliance with this Agreement. Such audit shall be conducted during Customer’s normal business hours and in a manner that does not unreasonably interfere with Customer’s operations. Customer shall provide reasonable access to relevant personnel, systems, and documentation as necessary to complete the audit. If any audit reveals that Customer is not in compliance with the terms of this Agreement, including any unauthorized use of the Services or underpayment of fees, Customer shall promptly cure the noncompliance and pay any applicable fees, plus interest where permitted by Applicable Law. If the audit reveals material noncompliance, Customer shall also reimburse FMSI for the reasonable costs of the audit. All information obtained in the course of any audit shall be treated as Confidential Information.

13.10 No action, regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen.

13.11 Customer irrevocably covenants to refrain from, directly or indirectly, asserting, commencing, or causing to be commenced any claim, suit, action or demand of any kind against FMSI’s parent, based upon any matter arising under this Agreement.

13.12 The section headings herein are provided for convenience only and have no substantive effect on the construction of the Agreement.

13.13 The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement.

13.14 Any online terms, click-throughs, browse-wrap, or URLs referenced within the Services or Documentation are for convenience only and shall not apply or modify the Agreement unless expressly incorporated by specific reference in the Order Form signed by both parties.

13.15 Each party represents it will comply with Applicable Laws relating to export controls, economic sanctions, anti-boycott, and anti-corruption in connection with the Agreement. Customer will not use, export, re-export, or transfer the Services in violation of such laws or to any prohibited jurisdiction or party. Customer shall not offer, pay, solicit, or accept any bribe or unlawful payment in connection with the Agreement.

13.16 These Terms, together with the applicable Order Form (and any attachments expressly referenced therein), constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, proposals, representations, and understandings of any kind, whether written or oral, between the parties relating to the subject matter hereof. Each Order Form, upon execution or electronic acceptance, incorporates these Terms by reference. These Terms are available for review at the URL designated by FMSI (the “Terms URL”), which shall be identified in each Order Form. FMSI reserves the right to update or modify these Terms at any time. Customer’s continued use of the Services after the effective date of the update shall constitute acceptance of the updated Terms.

EXHIBIT A — ACCEPTABLE USE TERMS

Customer and its Authorized Users shall:

Not use the Applications in any manner which could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Applications.
Not obtain or attempt to obtain any materials or information on or through the Applications through circumventing any access or use restrictions or by any other unauthorized methods, such as hacking or password mining.
Not attempt to gain unauthorized access to the Services or use any bots, spiders, page-scraping or other automated or manual processes or methods to copy or monitor the Applications or any of its contents.
Not use the Applications to store or transmit any infringing, libelous, tortious, or unlawful content or any materials that may cause harm or injury, or that violate any person’s right of privacy or any copyright, trademark, or other intellectual property rights.
Not permit unauthorized access to, or use of, the Applications (and shall notify Company promptly upon any such threatened or actual unauthorized access or use).
Not make the Services available to anyone other than Customer’s employees, representatives, consultants, agents, partners, customers, or other persons permitted by Customer to access or use the Services.
Not use the Services to store or transmit code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
Not create derivative works based on the Services.
Not copy, frame or mirror any part or content of the Services (other than for Customer’s own internal business purposes).
Not violate any law, statute, ordinance, regulation, directive or policy, including without limitation, the obligation to obtain all necessary consents from each user related to data collection/processing, or use any data derived from Customer’s use of the Services in violation of Applicable Law.

EXHIBIT B — GUIDELINES & ASSUMPTIONS

The following guidelines and services apply to FMSI solutions.

Cloud Services
Connectivity to Service Customer’s users connect to application via secure SSL/TLS connection over the internet. Cooperative efforts with customer IT staff may be required to enable access. FMSI will assist with validating site connectivity but assumes no responsibility for customer internet connection or ISP relationships. FMSI related Internet traffic cannot be filtered by proxy or caching devices on the client network. Exclusions must be added for the fully qualified domain names and public IP addresses assigned to the environment in the FMSI Cloud.	Included
SFTP Accounts SFTP accounts are provided to customers to upload files to the FMSI Cloud and to download files from the FMSI Cloud for designated integration points. The FMSI SFTP folder location is not designed for long-term storage and files stored longer than 30 days will be deleted. FMSI Cloud SFTP does not initiate connections, thus SFTP file transfers must be a customer-initiated process.	Included (2 logins)
Operating System and Database Management Software Includes the required O/S and SQL Server licenses, as well as services for FMSI to apply critical security patches, service packs and hotfixes for the software running in FMSI Cloud.	Included
Server Maintenance Continuous monitoring and management of security protocols to protect against unauthorized access and data breaches. Regular updates and patches to ensure the latest security measures are in place.	Included
FMSI Application Updates Services to perform technical tasks required to apply application service packs, point releases and version upgrades.	Included
Backup Customer data is backed up daily, with each backup retained for 15 days. Additionally, the two most recent instant recovery snapshots are kept on a rotating basis for advanced recovery options.	Included
Disaster Recovery Services Basic Disaster Recovery services are provided to all hosted customers at no additional fee. These services include the replication of customer environments and all customer data in the FMSI Cloud to a secondary FMSI Cloud data center. The Disaster Recovery Services offer a Recovery Point Objective (RPO) of 24 hours, and FMSI endeavors to restore application availability within a commercially reasonable timeframe. In the event of a disaster, customers may experience downtime until the production environment is restored in either the primary or secondary data center. An application environment may not be immediately available at the alternate site to process data. Customers are required to use fully qualified domain names (FQDNs) to access the service, as the IP address of the service may change. Any issues arising from the disaster recovery event due to customer configuration/customization or third-party software outside of the FMSI Cloud are the responsibility of the customer to resolve.	Included
Data Confidentiality – Encryption at rest of Customer Content at storage level Encryption at rest ensures that customer data is unreadable to unauthorized users. Even if an attacker gains physical access to the storage hardware, they cannot read the data without the encryption keys. By encrypting data at rest, FMSI mitigates the risk of data breaches and unauthorized access, providing an additional layer of security for sensitive information.	Included

Assumptions:

Estimated availability of production application logins is approximately 30 days after the Order Form is processed.
Customer agrees to receive automatic updates to the applications.
Customer will be required to sign a go live milestone document confirming customer has completed their testing and is ready to go live with the application(s).
Customer agrees not to upload payment card information, as the service is not certified for PCI DSS.
Customer agrees not to upload health information that falls under the United States HIPAA law.