Terms of Service and Software Agreement

THIS TERMS OF SERVICE AND SOFTWARE AGREEMENT (this “Agreement”) is made as of the date of the last signature, below (the “Effective Date”), between SUREWAY PA, LLC d.b.a Abodea (“Abodea”), a Utah corporation with offices located in Murray, UT 84107 (“Abodea”), and CUSTOMER NAME AS LISTED ON THE SERVICE AGREEMENT, an individual, a limited liability company or corporation, with a principal address as noted on the Service Agreement (“Customer”).

WHEREAS

  1. Abodea offers comprehensive property support solutions including maintenance coordination, maintenance vendor network services, operations and data input via Customer’s management and/or software system, occupancy support services, tenant benefit services, general answering services, and phone system support, among others (“Services”);
  2. Abodea offers an online platform for service insights, operations improvement, and monitoring and/or providing input on Abodea’s services for Customer (“Software”), accessible by Customer and its employees; and
  3. Customer wishes to secure for itself a nonexclusive, limited right to utilize its selection of Abodea’s Services and Software, pursuant to the terms and conditions more specifically set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants hereafter set forth, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged. IT IS HEREBY AGREED as follows:

  1. Definitions.
    1. “Customer Data” shall mean the data provided or input into Software by or on behalf of Customer, including personally identifiable information, for use with the Abodea Services, excluding any Confidential Information of Abodea.
    2. “Confidential Information” shall include, but not be limited to the following: (a) technical, commercial, financial or other information, including, without limitation, Customer Data, data, know-how, software, business processes, company policies, financial information, pricing, billing procedures, formulae, processes, designs, images, audio or video, specifications, samples, programs, materials, records, business plans, consumer research, analysis or experience, of a confidential nature and whether disclosed directly or indirectly, whether stored electronically or otherwise which relates to a party’s business, products, developments, services, trade secrets, know-how, personnel, supplies, vendors, suppliers, Service Provider(s), Designee(s), or customers already disclosed to or to be disclosed (i) by or on behalf of Abodea to Customer (whether or not designated as confidential or proprietary) or (ii) by or on behalf of Customer to Abodea (whether or not designated as confidential or proprietary); (b) notes, reports, analysis and reviews of and any other information derived from information referred to in paragraph (a) above; and (c) information designated as confidential, commercially sensitive or politically sensitive or which ought reasonably to be considered as such.
    3. “Designee” shall mean those authorized by Customer to utilize the Services herein.
    4. “Documentation” shall mean the Abodea documentation provided to Customer hereunder, including all forms, processes, questionnaires, and sign-up form.
    5. “Fees” shall mean the applicable Services and Software charges, detailed herein, and totaled by Customer’s selection from available Service options on the Service Agreement, which once signed by both parties shall be automatically incorporated into this Agreement.
    6. “Product Plan” shall refer to the specific combination of Software and Service products and tiers selected by the Customer from the options available in the Service Agreement, as detailed and agreed upon by both parties.
    7. “Intellectual Proprietary Rights” shall mean all copyright, patent, trademark, trade secret, unpatented inventions, patent applications, designs, business processes, business procedures, domain name rights, mask works, and other intellectual property and proprietary rights, including derivatives thereof.
    8. “Restricted Entity” shall mean any individual, partnership, limited liability company, corporation, joint venture, trust, association or other entity owned or controlled by, or acting as an agent for, any individual or entity with whom a U.S. citizen, national, or company organized under the laws of or operating in any state or territory of the U.S. is prohibited from engaging in any transactions by U.S. laws, including without limitation, an individual on the Specially Designated Nationals List published by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or any other individual or entity with whom or which transactions are prohibited by OFAC regulations.
    9. “Service Provider” shall mean a third-party service provider of Abodea’s, Customer’s, or of Customer’s Designee(s) that provides services on behalf of and for Customer or its Designee(s), if any.
    10. “Software” shall mean the object code of the application described in, and made available to Customer by Abodea hereunder, as well as all available updates, upgrades, new versions, modifications, subsequent releases of such application or different applications, platforms or editions.
    11. “User” shall mean an employee, representative, consultant, contractor or agent who are authorized to use or access the Services, or have been supplied user identifications and passwords by Customer (or by Abodea at Customer’s request), if any.
  2. Obligations of Customer. Customer shall be solely responsible for each of the following:
    1. provide on-time payment of all applicable fees to Abodea for all units enrolled in Customer’s Product Plan
    2. except as expressly permitted pursuant to this Agreement, (a) not allow any third party to transfer, merge, or transmit, electronically or otherwise, any of the Services, the content therein, or the documentation; (b) not allow any third party to access, rent, lease, copy, distribute, sublicense, sell, modify, decompile, disassemble, or otherwise reverse engineer in whole or in part, any of the Services or the Software, the content, or the documentation; and (c) not allow any third party to violate the terms of this Agreement;
    3. immediately bring to the attention of Abodea any known or suspected improper or wrongful use of Abodea’s Confidential Information or of any Abodea’s Intellectual Property Rights;
    4. not, and shall not allow any third party, to use, extract, or re-utilize the Services or Software (or any part thereof), the content, the documentation or any portion thereof or any information contained therein, for commercial purposes, including but not limited to, trading, building commercial databases, reselling or redistributing data from the Services or Software, for profit or to develop a competitive product;
    5. hold the terms of this Agreement in the strictest confidence as Confidential Information, releasing them only to its Designees, Users, employees and other authorized representatives (such as attorneys and accountants) who have a need to know such terms, and Customer shall release or disclose any such terms to any other party without Abodea’s prior written consent;
    6. comply with all requests in a timely manner from Abodea in a timely manner completely and accurately, which requests may include but not be limited to:
      1. Customer company policies (where applicable to the Services);
      2. Customer property(ies) listing with full address(es);
      3. Customer’s list of Users and their role with Customer’s company;
      4. Customer’s list of Service Providers, if any;
      5. Customer’s special instructions, if any;
      6. Customer asset and/or home warranty information, including details thereof, if any;
      7. A new, designated user account in its property management software for Abodea’s use, granting access levels necessary for Abodea to effectively deliver and improve it Services. The Customer consents to Abodea’s access and retrieval of Customer data from the property management system, which may include but is not limited to, service provider preferences, property details, tenant data, rent information, and more. This authorization enables Abodea to extract data it considers necessary for the purpose of (a) providing agreed-upon Services as well as (b) improving Abodea’s Services and Software.
      8. Any other Customer-specific information required by Abodea.
    7. prompt notice to Abodea of all changes to Customer billing information, and any other changes to Customer’s account information, including Customer contact information, including but not limited to: Customer’s legal name, credit card and billing addresses, email addresses, primary contact name and current phone number, authorized billing contact’s current contact information;
    8. safeguard the User ID’s, passwords and other security data and methods furnished to Customer in connection with the Software and prevent unauthorized access to or use of the Software;
    9. be responsible for all compliance with laws, as applicable, of Customer networks, equipment and system security required or appropriate in connection with the Software;
    10. have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. This includes, but is not limited to, regularly maintaining and reviewing a current list of enrolled unit addresses in Abodea’s platform, Company Policies, Customer’s preferred vendors, etc.
    11. all Customer, User, Service Provider activity within Customer’s account; and
    12. hold harmless and indemnify Abodea for all violations of this Section.
  3. Obligations of Abodea. Abodea shall be solely responsible for each of the following:
    1. Compliance with Company Policies. Abodea shall strictly comply with the company policies as provided by the Customer in the Customer’s account (“Company Policies”). Abodea’s obligation under this Agreement is limited to actions that are expressly required or permitted by the Company Policies. When Company Policies request that Abodea solicit additional instruction from the Customer, or if Company Policies do not clearly outline Customer’s expectations, or if Company Policies conflict with other business or legal obligations of Abodea, Abodea will attempt to make contact with Customer for additional clarification on a case-by-case basis. Customer agrees to make themselves and/or Designees available to Abodea for these purposes.
    2. Best Judgment. In the absence of explicit direction from the Company Policies, or when immediate contact with the Customer is not possible, and where Abodea elects to act based on its best judgment, Abodea shall consider the urgency of tenant requests and the necessity of immediate action. These may include, but not be limited to: situations where the Company Policies are not explicit, or in instances where immediate contact with the Customer is not feasible, Abodea may, at its sole discretion, take actions it deems necessary based on its best judgment. Such discretionary actions, however, shall not be construed as an obligation under this Agreement, and Abodea shall be deemed in full compliance with its obligations hereunder by adhering solely to the Company Policies.  Any such action taken by Abodea in good faith shall be deemed to be in compliance with this Agreement, provided that it is executed with the intent to preserve safety, property, and the interests of Customer, and is in accordance with prevailing legal requirements.
    3. Abodea will seek information from the Designee and the data provided by User to act on an informed basis, protect life and property, act in the best interests of the landlord, and not be wasteful. User agrees that in instances where best judgment is applied, there is room for disagreement and will hold harmless Abodea where such disagreements occur.
  4. Term.
    1. This Agreement shall be effective as of the date in which this document is acknowledged and agreed to by all parties. Customer has indicated a date on the Service Agreement in which they would like Service to commence (“Activation Date”). This Agreement shall remain in effect for a period of 12 months following the Activation Date (“Initial Term”), unless terminated as allowable pursuant to this Section 9. This Agreement shall continue to automatically renew in increments equal to the Initial Term (“Renewal Term(s)”). Customer acknowledges and agrees that: (1) each subsequent renewal period will be at Abodea’s then-current rates; and (2) the Service and Software available to Customer and supported by Abodea during any renewal term may be a different version or release than as available and supported during the prior term.
  5. Fees and Payments.
    1. Fees. Customer shall pay to Abodea the fees set forth as applicable and corresponding to Customer’s Service selection(s) as detailed in the Service Agreement. Customer agrees to have valid ACH payment information on file with Abodea. Customer may also have a valid credit card on file as an alternate method of payment. By signing this Agreement, Customer authorizes Abodea to automatically charge Abodea’s fees and any authorized expenses (incurred by Abodea on Customer’s behalf) to Customer. Customer acknowledges and agrees that Abodea has no control over individual, third-party vendor billing practices and authorizes Abodea to charge Customer’s credit card or checking account for Expenses up to sixty (60) days after the event, regardless of whether or not this Agreement has been terminated. Customer agrees to effectuate any other writings needed by Abodea to satisfy this provision.
      1. Regularly Recurring Fees. Fees for which a fixed rate (including fixed rates per unit) are set.  These fees are non-refundable and payable in advance by Customer on the 1st of each calendar month following the Customer’s activation date, with the amounts as established in the Service Agreement or as amended thereafter. These fees include, but are not limited to, maintenance coordination; base account administration fees; telephony fees; base Lease Assist fees; base Answering service fees; CreditCare; Identity Protection; and/or the Tenant Benefits Package. The amount and frequency of these recurring fees are determined in accordance with the Customer’s selected services and any subsequent modifications to these selections.
      2. ProNet Fees. Fees that pertain to the costs incurred for maintenance work orders completed by Abodea’s Pro Network. Abodea will use its best effort to obtain quality work at reasonable pricing from its ProNet vendors on behalf of the Customer and reserves the right to apply up to a 15% markup on the cost of services procured from its Pro Network. These fees are non-refundable and are due within thirty (30) days of the invoice issuance to the Customer. Should payment not be received within this specified period, Abodea reserves the right to automatically charge the outstanding amount to the Customer’s payment method on file. ProNet fees settled via credit card will incur an additional service charge of 3%.
      3. Usage-Based Fees. Fees based on the usage of services (such as messaging and lease assistance) that exceed the base account provisions. These will be invoiced and are payable post-service on the first day of the following month. These fees are calculated based on the actual usage in the preceding month and are also non-refundable.
      4. Set-up/Upgrade Fees. Fees that are charged on a one-time basis to establish or upgrade Customer’s account, including details collected in onboarding, service setup, company customization, etc. This fee is non-recurring and is due upon the Customer’s Activation Date or indicated on the Service Agreement.
      5. Unenrolled Units Incidental Fee. For units that the Customer or the Customer’s residents request service for but have not been formally enrolled with Abodea, a coverage fee of $50 per incident will be charged to the Customer.
      6. Miscellaneous Fees. Fees that do not fall into the aforementioned categories, including but not limited to, special services requested by Customer, which shall be billed and detailed separately. Payment terms for miscellaneous fees will be defined as per the specifics of the service rendered.
    2. Penalties for late or non-payment. In the event of any payment delinquency or non-payment of any of the fees described above, Abodea reserves the right to suspend Customer’s Service and/or access to Software until payment is made in full. For late payments, Customer will incur a late fee of 1.5% compounded monthly for any outstanding balances. The late fee is due immediately upon assessment and is in addition to the underlying obligation. The charging of late fees in no way waives Abodea’s right to also suspend the Services if payment in full has not been received.
    3. Proration. Fees to Abodea, excluding ProNet fees, are due on the 1st of each upcoming calendar month. Customer’s initial invoice for service will be prorated by the number of days between Customer’s Activation Date and the 1st calendar date of the upcoming month. For the duration of Customer’s Initial Term and subsequent Renewal Terms, Customer will be billed in full on the 1st of each calendar month. Upon cancelation, Customer’s final payment will be due on the 1st of the calendar month in which Customer’s account will be deactivated. No proration will take place for this month, and no fees are refundable.
    4. No refunds. Customer acknowledges that there will be no refunds on any prepaid amounts under this Agreement.
    5. Expenses. Customer shall promptly reimburse Abodea for all expenses expended by Abodea on behalf of Customer.
    6. Taxes. Customer agrees to pay any and all taxes related to the Services and Software.
    7. Payments. All Fees and/or Expenses under this Agreement shall be payable by Customer pursuant to and in accordance with the Payment Schedule set forth in the applicable subscription form. Any amounts not paid when presented are subject to interest at one and one-half percent (1.5%) per month and all costs, fees, and expenses incurred for collection of same.
  6. Abodea’s Software License and Restrictions.
    1. License. Subject to all the terms and conditions of this Agreement, Abodea hereby grants to Customer for only the Term Customer subscribes to the Services, and providing that Customer is not in arrears in any of its obligations under this Agreement, a non-exclusive, non-transferable, non-assignable, non-sublicensable, limited right for Customer, its Users, and its Designees (subject to Sections 5(d) and (e)) to access, display and use the Software solely for the internal business purposes of Customer and to manage information relating to Customer’s account hereunder.
    2. License Restrictions. Nothing in this Agreement shall be construed as a grant to Customer of any right to, and Customer shall not, and shall not permit any third party to: (i) reproduce any of the Software or any portion thereof; (ii) distribute, disclose or allow use of any of the Software, or any portion thereof, in any format, through any timesharing service, service bureau, network or by any other means, to or by any third party; (iii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software in any manner; (iv) create derivative works from, modify or alter any of the Software in any manner whatsoever; (v) use the Software or any component thereof (excluding Customer Data) to construct a database of any kind or to improve the quality of any data sold or contributed by Customer to any third party; (vi) store the Software; (vii) distribute any database systems containing data obtained from the Software; (viii) create Internet “links” to or from the Software or “frame” or “mirror” any of Abodea’s content which forms part of the Software (for the avoidance of doubt, creation of corporate intranet “links” to the Software is not a violation of this Section 5(b)(viii)); (ix) use or access the Software in a manner, or act otherwise in any manner, that could damage, disable, overburden, or impair any Abodea servers or the networks connected to any Abodea server; (x) interfere with any third party’s use and enjoyment of the Software; or (xi) attempt to gain unauthorized access to the Software, accounts, computer systems, or networks connected to any Abodea server through hacking, password mining, or any other means.
    3. Users. Customer acknowledges and agrees that each User shall access and use the Software through a unique and reasonably secure username/user identification and password. Except for Customer’s and its Designee’s system administrators where reasonably necessary for administrative or security purposes, no User may use the username/user identification or password of any other User.
    4. Third Party Access. Subject to Section 5(e), Customer shall also have the right for Customer and Designees to permit its Service Providers to access, display and use the Software solely for the benefit of Customer and its Designees, and in accordance with the terms and conditions of this Agreement, provided that:
      1. except as otherwise expressly agreed by Abodea in writing, no such Service Provider is engaged in, or is a Designee or subsidiary of any individual or entity engaged in the business of providing building or premises management services;
      2. Customer shall provide thirty (30) days’ advance written notice of such Service Provider to Abodea and Abodea does not object to such Service Provider within fifteen (15) days of Abodea’s receipt of such notice from Customer; and
      3. no Service Provider shall have any right to access, display or use the Software unless the Service Provider has agreed in writing in advance: (1) to be bound by at least the same restrictions with respect to the Software as Customer, and (2) to use, access and display the Software solely for the benefit of Customer or Customer’s Designees and as necessary to perform the Service Provider’s authorized duties for or on behalf of Customer or its Designees.
    5. Designees, Service Providers; Generally. Customer acknowledges and agrees that:
      1. any rights granted hereunder with respect to the Software to any of Customer’s Designees and Service Providers shall expire or terminate immediately upon the expiration or termination of the Agreement in accordance with its terms;
      2. all access and use of the Software by Customer’s Designees and Service Providers shall be subject to all of the terms and conditions of this Agreement; and
      3. Customer shall be fully responsible for (1) ensuring the compliance of all such Customer’s Designees and Service Providers with the terms and conditions of this Agreement; and (2) all violations of the terms or conditions of this Agreement by Customer’s Designees and Service Providers.
    6. Proprietary Rights. As between Customer and Abodea, Customer acknowledges that Abodea is the exclusive owner of all right, title and interest in and to all Software and all proprietary rights related thereto, regardless of any participation or collaboration by Customer in the design, development or implementation of any such Software. No title or ownership of proprietary rights in and to the Software, or any component thereof, is transferred to Customer or any third parties hereunder. Abodea represents and warrants that it owns all rights, title, and interest in and to the Software, or that in the case of any third party software that it has the right to grant a sublicense to use such third party software. Customer’s sole remedy for breach of the preceding sentence shall be limited to those set forth in Section 7(d).
    7. Notices of Infringement; Assistance. In the event Customer discovers or is notified of an actual or suspected infringement or misappropriation of the rights of Abodea or its licensors in or to the Software, or any component thereof, or any unauthorized disclosure of, access to, or use of the Software (each, an “Infringement”), Customer shall: (i) immediately notify Abodea of such known or suspected Infringement; and (ii) terminate such Infringement if and to the extent within Customer’s control.
    8. Proprietary Notices. Customer shall not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained in any of the Software, and Customer shall reproduce all such notices and legends on all copies of the Software that are permitted to be made hereunder. Customer further agrees to reasonably cooperate with and assist Abodea (at Abodea’s sole expense) in protecting, enforcing and defending Abodea’s rights in and to the Software.
    9. Customer Warranty; Customer Data. The parties acknowledge and agree that during the term of this Agreement Customer, its Users, its Designees, any Customer Service Providers or other third parties may disclose certain Customer Data, including personally identifiable data regarding employees or other individuals, to Abodea for the benefit of Customer. Customer represents and warrants to Abodea that: (i) Customer, its Users, its Designees, its Service Providers and such other third parties are authorized to disclose the Customer Data to Abodea for use pursuant to this Agreement; (ii) such disclosure does not and shall not violate applicable law or, if applicable, Customer’s agreements with or privacy notices to individuals with respect to whom the Customer Data relates; and (iii) Customer shall not request Abodea to use, disclose or otherwise process Customer Data in any manner that would not be permissible under applicable law or, if applicable, Customer’s agreements with or privacy notices to individuals with respect to whom the Customer Data relates.
    10. Non-Abodea Events. Customer acknowledges and agrees that Abodea shall not be responsible or liable for any delay or failure in its performance of any duties or obligations pursuant to this Agreement, including, without limitation, under any Exhibit hereto, if such delays or failures result or arise from any Non-Abodea Events. “Non-Abodea Events” shall mean, collectively: any (i) act or omission of Customer, its Users, its Designees or any Service Providers, including without limitation, any delays by Customer in its performance or cooperation with respect to the obligations set forth herein or the Exhibits; (ii) failures of Customer’s or third party equipment or software (other than the Software); or (iii) Force Majeure Event (as defined below).
  7. Disclaimers.
    1. Abodea SPECIFICALLY DISCLAIMS THAT THE Abodea SERVICES AND/OR SOFTWARE WILL MEET CUSTOMER’S EXPECTATIONS OR NEEDS. Abodea PROVIDES ALL SERVICES AND SOFTWARE ON AN “AS IS” BASIS, AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE EXCLUDED AND DISCLAIMED BY Abodea, WHETHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY, OR AND ANY WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER AGREES TO INDEMNIFY AND HOLD ABODEA HARMLESS FOR ANY BREACH OF PRIVACY OF CUSTOMER DATA, USER DATA, E-MAIL ADDRESSES, REGISTRATION AND IDENTIFICATION INFORMATION, COMMUNICATIONS, CONFIDENTIAL OR TRADE-SECRET INFORMATION, OR ANY OTHER CONTENT PROVIDED TO Abodea IN ANY FORM OR MANNER.
    2. The Services are subject to inherent uncertainty, and actual results may differ materially from that projected by Abodea. They are provided solely for Customer’s benefit. Abodea shall have no liability to any third party in connection with these Services or to the Customer with regard to any services performed or provided by a third party. Customer agrees and acknowledges that Abodea shall not be responsible for: (i) any acts, omissions, delays, inaccuracies, errors or any other failure caused by Customer, its Users, its Designees or its Service Provider; (ii) any inaccuracies in or failures of the Software; (iii) any data that Abodea receives from Customer or third party sources and including the data’s accuracy or completeness, or Customer’s handling decisions; and (iv) the Software to the extent it is modified by anyone other than Abodea. To the extent the Software utilizes Internet systems to transmit data or communications, Abodea disclaims any liability for interception of any such data or communications, including of encrypted data not solely due to Abodea’s breach of its obligations hereunder. Abodea is also not responsible for the security, reliability or continued availability of the telephone lines and equipment outside of Abodea’s direct control used to access the Software.
    3. Third-Party Websites. The content of third party websites, systems, products or advertisements that may be linked to the Software are not maintained or controlled by Abodea. Abodea does not have any responsibility for, nor: (i) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Software; (ii) guarantee the accuracy, completeness, usefulness or adequacy of any other websites, systems, products or advertisements that may be linked to or referenced in the Software; or (iii) make any endorsement, express or implied, of any other websites, systems, products or advertisements that may be linked to or referenced in the Software.
  8. Indemnification and Liability.
    1. Indemnity. To the fullest extent permitted by law, each of the parties shall defend, indemnify and hold harmless the other party, its designated entities, and their respective directors, officers, managers, employees, agents, and representatives (collectively, “Indemnitees”) from and against any and all claims, suits, liabilities, judgments, losses, damages, fines, costs and expenses (including, but not limited to, reasonable attorneys’ fees) of every kind and character, in each case arising out of any act, error or omission that results in its breach of this Agreement, regardless of whether the harm is to Abodea, Customer, Indemnitees, the employees, representatives or invitees of either, or any other person or entity. To the extent of the foregoing, each of the parties hereby expressly waives any insulation from liability or immunity from suit as to any claim by Indemnitees for indemnification in respect of injuries to the other party’s employees that may otherwise extend to it as a result of any payments made under any applicable workers’ compensation statute or similar law or judicial decision, except to the extent such injuries arise from Customer’s or any third party’s acts or omissions. For the purposes of this Section, neither party shall be considered an agent or representative of the other party.
    2. In connection with any claim or action for which a party seeking indemnification (an “Indemnified Party”) seeks indemnification from the other party (the “Indemnifying Party”) in accordance with this Section, the Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of any such claim or action; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure; (ii) make no admission, settlement or other communication regarding any such claim without the prior written consent of Indemnifying Party, which shall not be unreasonably withheld or delayed; (iii) at the request of the Indemnifying Party, must allow the Indemnifying Party to conduct and/or settle all disputes or litigation; provided, however, that the Indemnifying Party may not settle the claim or action on a basis that admits liability on the Indemnified Party’s behalf unless the sole relief provided therefor that impacts the Indemnified Party is monetary damages that are paid in full by the Indemnifying Party; and; (d) provide the Indemnifying Party with all reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense and settlement of the claim or action.
    3. No Consequential Damages. Neither party shall be liable for, and each party hereby waives and releases any claims against the other party for, any special, punitive, incidental or consequential damages, whether direct or indirect, compensatory or punitive, that result from the use of, or inability to use, the Services and/or the Software, including but not limited to, reliance by Customer or any of its Designees, Users, or Service Providers, including but not limited to lost revenues and lost profits, even if advised of the possibility of such damages and whether based on contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise.
    4. Limitation of Liability. Under no circumstances shall either party’s aggregate maximum liability under or in connection with this Agreement exceed the payments actually made to Abodea (or, with respect to Customer’s obligations, the payments due Abodea) hereunder during the one (1) month preceding the date on which any claim is made against a party. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Agreement shall limit a party’s liability to the other party for any negligence, intentional or willful misconduct, violation of law, or infringement of intellectual property rights, or Customer’s liability for any breach of Section 5. THE ALLOCATION OF LIABILITY SET FORTH IN THIS AGREEMENT FAIRLY REFLECTS THE ECONOMIC CIRCUMSTANCES AND RISKS THAT THE PARTIES ARE WILLING TO UNDERTAKE IN VIEW OF THE AMOUNTS PAID OR PAYABLE TO Abodea BY CUSTOMER FOR THE LICENSE SPECIFIED HEREIN.
    5. Website. The Abodea website is an internet website on commercial computer systems and, accordingly, is not expected to be available at all times. Accordingly, Abodea shall not be liable for failure to provide access to the Abodea website, regardless of the cause therefore, including, without limitation, scheduled or unscheduled maintenance, computer system failure, software errors, failure of internet or communication service providers, or otherwise, regardless of whether such cause is the fault of Abodea. Without limiting the foregoing, and except as otherwise provided herein, none of the Abodea parties shall be liable to Customer, or any of its Designees, Users, or Service Providers for any damages (whether direct or indirect, compensatory or punitive) that result from deletions or delays in transmission of any information obtained through the use of the Software or Abodea website, interruptions in telecommunications connections to the Software or Services, viruses or other failures of performance, whether caused in whole or part by negligence, acts of god, telecommunications failure, theft or destruction of, or unauthorized access to the Software and/or the Abodea website.
  9. Product Plan Changes and Termination.
    1. In-term Product Plan Changes. Customer is permitted to make changes to their service during the current term, subject to the following conditions and procedures:
      1. Service. Customer may upgrade their Product Plan at any time during the current term. This upgrade will become effective upon mutual agreement of both parties via an Amended Service Agreement and will be in effect for the remainder of the current term. Elections to downgrade must be made during the Allowed Notice Period, as detailed in Section 9.2.1, and will be effective at the beginning of the upcoming term.
      2. Units Enrolled. Customer is permitted to enroll additional units into their Product Plan at any point during the term of their contract, with each unit priced at the current contract rate. Elections to unenroll units must be made during the Allowed Notice Period, as detailed in Section 9.2.1, and will be effective at the beginning of the upcoming term.
    2. Termination. Any termination of this Agreement shall automatically terminate any and all other documents between the parties. This Agreement may be terminated by:
      1. Non-renewal Termination. The Customer may terminate its automatic renewal by submitting a Notice of Cancelation to Abodea during the Allowed Notice Period, which is hereby defined as the 30-day window commencing 60 days before and ending 30 days before the expiration of the Initial Term or any Renewal Term.
      2. Immediate Termination. Abodea reserves the right to immediately terminate Customer’s Service and access to the Software in the following events:
        1. Non-payment of fees due to Abodea;
        2. Customer breaches Section 5, above;
        3. Customer’s failure to respond to requests for information by Abodea, including emergency contact information or current payment information.
        4. Customer is in breach of any Section of this Agreement;
        5. A receiver is appointed over any of the assets of Customer;
        6. Customer becomes subject to an administration order with respect to an assignment for the benefit of creditors;
        7. Customer goes into liquidation or bankruptcy, files a voluntary application or otherwise proceeds to liquidation or bankruptcy.
      3. Cure Notice. Either party may provide written notice of a breach of this Agreement to the other party for any other items not listed above. In the event any formal notice to cure is not met within 30 days, this Agreement shall terminate.
    3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason:
      1. Customer shall promptly cease all use of the Abodea Software and Services;
      2. Customer shall within five (5) business days after termination of this Agreement, return to Abodea, or upon Abodea’s request, destroy all copies of Abodea’s Confidential Information in Customer’s, its User’s, its Designee’s or Service Providers’ possession or control; and
      3. Customer shall, upon written request by Abodea, within five (5) business days after expiration or earlier termination of this Agreement, certify in writing to Abodea that it has done all of the foregoing.
    4. Upon any expiration or termination of this Agreement, Abodea shall invoice Customer for all accrued Fees and expenses incurred by Abodea on Customer’s behalf in fulfillment of the Services, and Customer shall pay the invoiced amounts, including from previously issued invoices, within five (5) business days of Customer’s receipt of such invoice.
    5. Abodea reserves the right to permanently delete Customer data from Abodea’s records and to charge a reinstatement fee for each Customer termination.
  10. Survival. Except as otherwise set forth herein, in the event of termination of this Agreement for any reason, the provisions of Sections 2, 4, 7, 11, and 12, as well as all payment obligations, shall survive.
  11. Authority. Each party represents and warrants that it has full power and authority to enter into this Agreement and grant the rights granted herein.
  12. Confidentiality.
    1. Confidential Information. Each party acknowledges and agrees that during the term of this Agreement it may be furnished with or otherwise have access to Confidential Information of the other party. The party that has received Confidential Information (the “Receiving Party”), in fulfilling its obligations under this Section 5, shall exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed Confidential Information to the Receiving Party (the “Disclosing Party”) that it exercises with respect to its own Confidential Information, but in no event shall the Receiving Party exercise less than a reasonable standard of care. The Receiving Party shall only use, access and disclose Confidential Information as necessary to fulfill its obligations under this Agreement, including the Exhibit, or in exercise of its rights expressly granted hereunder. Receiving Party shall not directly or indirectly disclose, sell, copy, distribute, republish, create derivative works from, demonstrate or allow any third party to have access to any of Disclosing Party’s Confidential Information; provided, however, that: (i)(1) Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, subcontractors, agents and Designees (and employees, subcontractors and agents of its Designees) shall be given access to any Confidential Information received from the other party only on a “need to know” basis for the purposes of this Agreement and shall have been made aware of the requirements of confidentiality for such Confidential Information and (ii) all use of the Disclosing Party’s Confidential Information shall be subject to all the restrictions set forth in this Agreement.
    2. Exclusions. The following information shall not be considered Confidential Information subject to this Section 5: (i) information that is publicly available or later becomes available other than through a breach of this Agreement; (ii) information that is known to the Receiving Party or its employees, agents or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or (iii) information that is subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality. If the Receiving Party is required by law to disclose any portion of the Disclosing Party’s Confidential Information, including, without limitation, pursuant to the terms of a subpoena, court order or otherwise by applicable law, Receiving Party shall give prior timely notice of such disclosure to Disclosing Party to permit Disclosing Party to seek, at its own expense, a protective or similar order, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential Information as is necessary be disclosed in response to such subpoena, court order or other similar document. Such party will promptly cooperate with and assist the other party in connection with obtaining such protective order at the other party’s expense. In the event of disclosure by a Receiving Party of the Disclosing Party’s Confidential Information to a third party in violation of this Section 11, the Receiving Party shall use its best efforts in good faith to assist the Disclosing Party in recovering (and preventing such third party from using, disseminating, selling or otherwise disposing of) such Confidential Information.
    3. Survival. The obligations set forth in this Section shall survive in perpetuity regardless of termination or expiration of this Agreement for as long as such Confidential Information is retained by a party.
  13. Export. Customer acknowledges that the Software and all related technical information, documents, and materials are subject to export controls under the U.S. Export Administration Regulation. Customer will (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with the other party in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export, divert, transfer, or disclose, directly or indirectly, any Software or related technical information, document, or material or direct products thereof to any country so restricted by the U. S. Export Administration Regulations, as modified from time to time, or to any national or resident thereof, unless Customer has obtained the prior written authorization of Abodea and the U.S. Commerce Department and any relevant local governmental authority. Furthermore, Customer recognizes and agrees that concurrently with the execution of this Agreement it shall provide Abodea with a Letter of Assurance, substantially in the form provided by Abodea. Customer agrees Abodea shall have no liability for the failure to obtain a United States export license to export the Software to any other country. Should Customer choose to access the Software or Services from outside the United States, Customer is solely responsible for compliance with foreign and local laws. The Services and Software are not available through Abodea to any Restricted Entity. Customer represents and warrants that it is not a Restricted Entity and is not using the Software or Services on behalf of or for the benefit of a Restricted Entity.
  14. Notices. Any notice required or permitted to be delivered pursuant to this Agreement shall be in writing and shall be deemed delivered: (i) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; or (ii) one (1) business day after deposit with a national overnight courier, in each case addressed to the addresses detailed for that party in the signature block
  15. Non-solicitation. During the term of this Agreement and for a period of two (2) years after it terminates, Customer shall not solicit for hire nor hire individuals who were employed, contracted, or sub-contracted by Abodea, or previously employed, contracted, or sub-contracted by Abodea within the twelve (12) month period preceding this contract’s termination; provided, however, that this restriction shall not prohibit Customer from conducting general solicitations for hiring by other means in connection with its normal hiring purposes.
  16. Non-Waiver. The failure of either party to insist, in any one or more instances, upon performance of any of the terms or conditions of this Agreement shall not be construed as a waiver or a relinquishment or any right granted hereunder of the future performance of any such term, covenant or condition, and the obligations of all parties with respect thereto shall continue in full force and effect.
  17. Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
  18. Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.
  19. Relationship. It is understood and agreed that Abodea is a vendor to the Customer, and not as an agent, employee or partner of the Customer, and each party shall bear its own entire cost and expense of performing under this Agreement. Except as otherwise specifically provided in this Agreement, neither party shall have any authority to commit or bind the other party in any way. This Agreement and the transactions contemplated hereby shall not be deemed to create a joint venture, partnership or employment relationship between the parties.
  20. Change of Law. In the event either party in good faith determines that any of the transactions contemplated by this Agreement creates, or has created, a substantial risk of violating any law, statute, rule, regulation or other requirement, existing at the time of execution of this Agreement, or as adopted or amended subsequent thereto, and the parties agree that if the risk can be eliminated by restructuring the Agreement, this Agreement shall be renegotiated in good faith by the parties so as to restructure their relationship in a manner that would eliminate any such substantial risk. In the event the parties are unable to so successfully renegotiate this Agreement or determine the risk cannot be eliminated by renegotiation, then either party shall be entitled to terminate this Agreement upon the giving of ninety (90) days’ written notice to the other. During that 90-day period, both parties must continue to comply with the terms of this Agreement and the applicable Service Agreement.
  21. Injunctive Relief. Customer acknowledges that its breach of this Agreement may cause irreparable injury to Abodea that may not be adequately compensable in monetary damages, and for which Abodea shall have no adequate remedy at law. In the event of breach of Section 5 of this Agreement, Abodea shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief.
  22. Attorney Fees. If any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision hereof is brought against either party, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs and disbursements, in addition to any other relief to which the prevailing party may be entitled.
  23. Force Majeure. Neither party shall have liability for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, including without limitation, acts of God, fires, floods, earthquakes, wars, civil disturbances, terrorism, sabotage, accidents, unusually severe weather, labor disputes, governmental actions, power failures, viruses that are not preventable through generally available retail products, inability to obtain labor, material or equipment, catastrophic hardware failures, usage spikes, attacks on that party’s server, or any inability to transmit or receive information over the Internet, (each, a “Force Majeure Event”) nor shall any such failure or delay give the other party the right to terminate this Agreement.
  24. Amendment. No changes or modifications to or waivers of any provision of this Agreement shall be effective unless evidenced in a written amendment that is signed by authorized representatives of both parties.
  25. Assignment. This Agreement may not be voluntarily assigned or transferred by either party, and any attempt to do so shall be considered null and void, except as provided herein. In the event of a sale or other transfer of all or substantially all of the assets of the Customer’s business, the obligations of the Customer under this Agreement will automatically be inherited by the purchaser or transferee, who shall assume all rights and responsibilities of the Customer herein.
  26. No Third Party Beneficiaries. No provision of this Agreement, the Services, or the Software provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
  27. Governing Law and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Utah, United States of America. Exclusive venue for all litigation with regard to this Agreement shall be in, Utah and both parties agree to submit to the jurisdiction of the state courts in the County of Salt Lake City, State of Utah for any such litigation. This Agreement shall only be interpreted in the English language.
  28. Contract Ambiguities. The parties to this Agreement acknowledge that they have had the opportunity to consult with legal counsel of their own choosing. As a result, the Rule of Construction, which provides that ambiguities in the contract shall be construed against the drafter, shall not apply to this Agreement and the parties waive any such defense to the terms of this Agreement.
  29. Counterparts. This Agreement may be executed in several counterparts, each of which may be deemed an original, but all of which together shall be deemed one instrument.
  30. Entire Agreement. The terms and conditions of this Agreement take precedence over any conflicting statement or provision in any schedule, form, exhibit, or any other document furnished by Abodea. This Agreement, including all Exhibits hereto, is the complete statement of the agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior oral and written agreements with respect to the subject matter hereof.