Terms of Services — NuVerge, LLC

NuVerge Terms of Service

1. SCOPE OF AGREEMENT

Welcome to NuVerge. Please read these Terms carefully because they are a binding agreement between You (“You, Your, or Customer”) and NuVerge, LLC (“NuVerge” or “We”).

These Terms govern your use of the websites that link to these Terms. In these Terms, the word “Sites” refers to each of these websites and the services offered on those Sites. You automatically agree to these Terms and to our Privacy Statement simply by using or logging into the Sites.

Please note that we offer many services. Your use of NuVerge products or services are provided by NuVerge pursuant to a separate manually or digitally-executed agreement. Those additional terms become part of your agreement with us, if you use the services or log into the Sites.

2. DEFINITIONS

2.1 Affiliate means all entities that directly or indirectly control, are controlled by, or are under common control with, a party, where “control” means ownership of, or the right to control, greater than 50% of the voting interests of such entity. Without limiting the generality of the foregoing, Affiliates of Customer shall include all entities in which Customer holds a fifty percent (50%) or greater direct or indirect (e.g., through one or more subsidiaries or Affiliates) interest.

2.2 Contractor(s) means any third-party providing services or seeking to provide services to or on behalf of Customer and to which Customer has been provided a valid password or other means of accessing and using the Licensed Products.

2.3 Customer Affiliate means an Affiliate of Customer identified on the Licensed Product Attachment that Customer may authorize to use the Licensed Products subject to the terms and conditions of this Agreement.

2.4 Customer Data means any and all data, information, reports or other content, in any form (including without limitation personally identifiable information), that is (i) provided, made available, or submitted by or on behalf of Customer, its Affiliates, and/or Users, into the Licensed Products and/or the Customer Developed Applications and/or (ii) generated by the Licensed Products and/or the Customer Developed Applications based on such information, data, reports or other content.

2.5 Customer Developed Application User means an employee (or temporary employee), or Contractors, of Customer and/or Customer’s Affiliates who is authorized to only use and access Customer Developed Applications and Licensed Technology Products. Each user of Customer Developed Applications requires a Customer Developed Application User license.

2.6 Customer Developed Applications means any independent or new applications based on the Licensed Technology Products and any customizations to any Licensed Technology Products developed by Customer’s Development Users for use with the Licensed Technology Products under the terms of this Agreement.

2.7 Development User means an employee (or temporary employee), or independent contractor of Customer and/or Customer’s Affiliates who is permitted to develop Customer Developed Applications.

2.8 Documentation means any documents made available to the Customer by NuVerge from time to time in digital or electronic format, that describe the features, functionalities, proper use, and operation of the Licensed Products.

2.9 Feedback means ideas, feedback or suggestions of Customer related in any way to the Licensed Products, provided however, Customer’s Confidential Information (including Customer Data) or Customer Data (or any portion thereof) shall not be considered Feedback.

2.10 Fees means the subscription fees payable by the Customer to NuVerge for use of the Licensed Products, as set forth in a Licensed Product Attachment and/or any fees for Professional Services set forth in a Statement of Work.

2.11 Licensed Product Attachment means the document that describes the Licensed Products and/or other services ordered by Customer.

2.12 Licensed Products means the software-as-a-service features and functionalities detailed in any Licensed Product Attachment to this Agreement, which may include On-Premise Components and/or NuVerge Configured Applications and Licensed Technology Products.

2.13 Licensed Technology Products means the software-as-a-service components, features, and functionalities identified as Licensed Technology Products in any Licensed Product Attachment to this Agreement.

2.14 NuVerge Configured Applications means any modification to the Licensed Products performed by NuVerge at Customer’s direction in connection with the implementation, and/or configuration of the Licensed Products for Customer under this Agreement. NuVerge Configured Applications may include APIs that enable connectivity with Customer Developed Applications or Third-Party Apps.

2.15 NuVerge Full Access Business User means an employee (or temporary employee), or Contractors, of Customer and/or Customer’s Affiliates who is authorized to use the Licensed Products and NuVerge Configured Applications for production (and not for development) purposes.

2.16 NuVerge Limited Access Business User means an employee (or temporary employee), or Contractors, of Customer and/or Customer’s Affiliates who is authorized to use only a limited scope of Licensed Products and NuVerge Configured Applications for production (and not for development) purposes.

2.17 Non-Production Environment(s) means online environment(s) dedicated to use in testing the Licensed Products.

2.18 On-Premise Components means any on-premise component that can be downloaded and installed (including updates) by Customer. The System Availability SLA do not apply to these components. Customer may only use the on-premise components during the term identified on each Licensed Product Attachment.

2.19 Preview Features means features or functionalities of the Licensed Products that are not yet commercially available, but which NuVerge may allow Customer to use on a trial basis.

2.20 Professional Services means customization, implementation, configuration, training and/or other services provided by NuVerge to Customer.

2.21 Service Level Agreement(s) means the service availability and technical support services for the Licensed Products set forth in the current Service Level Agreement (“SLA”).

2.22 Statement of Work means a document executed by both parties, that describes Professional Services provided to Customer.

2.23 Third-Party Apps means any web-based, mobile, offline, or other software application, software feature, or software functionality created by a Third-Party and that Customer uses with the Licensed Products. The terms and conditions applicable to Customer’s use of and licenses to any Third-Party App (including any use limitations) shall be set forth in a license agreement entered directly between the Third-Party provider and Customer.

2.24 User(s) means NuVerge Full Access Business Users, NuVerge Limited Access Business User, Development Users, and Customer Developed Application Users.

3. LICENSE GRANT AND RESTRICTIONS

3.1 License Grant. Subject to all of the terms and conditions of this Agreement, including payment of all applicable Fees, NuVerge hereby grants to Customer a limited, non-exclusive, non-transferrable, non-assignable, non- sublicensable, right, during the term of the applicable Licensed Product Attachment, to: (i) permit its NuVerge Full Access Business and Development Users to access and use the Licensed Products identified in a Licensed Product Attachment in accordance with the Documentation; and (ii) permit its NuVerge Limited Access Business Users to access and use the limited scope of Licensed Products identified in a Licensed Product Attachment in accordance with the Documentation; (iii) permit Development Users to use and access the Licensed Products to create Customer Developed Applications; (iv) permit Customer Developed Application Users to access and use such Licensed Technology Products and/or Customer Developed Applications as such applications are integrated with the Licensed Products; (v) to use, access, download, and make a reasonable number of copies of the Documentation in connection with the rights granted in this Section 3.1; (vi) provide technical support for the Customer Developed Applications to its Users; and (vii) permit Customer Affiliates the right to (a) permit NuVerge Full Access Business Users to access and use the Licensed Products identified in a Licensed Product Attachment in accordance with the Documentation, (b) permit NuVerge Limited Access Business Users to access and use the limited scope of Licensed Products identified in a Licensed Product Attachment in accordance with the Documentation, and (c) permit Customer Developed Application Users to access and use the Customer Developed Applications. All rights granted in this Section 3 are limited to Customer’s internal business operations, (and the internal business operations of Customer’s Affiliates) and any additional limitations (e.g., limitations on number of Users) set forth in the applicable Licensed Product Attachment. Customer is responsible for all its acts and omissions, and the acts and omissions of its Affiliates, and each of their Users.

3.2 Requirement to Maintain License to Licensed Products. Customer must: (a) maintain a license to the Licensed Products to use and access the Customer Developed Applications created, and (b) maintain licenses for each Development User, NuVerge Full Access Business User, NuVerge Limited Access Business User using the Licensed Products and each or Customer Developed Application User using Customer Developed Applications.

3.3 Restrictions. Customer shall not, and shall not allow any User or Third-Party to: (i) reverse engineer the Licensed Products, or any component of them, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of software used in the Licensed Products by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to NuVerge); or (ii) distribute, sell, sublicense, rent or otherwise transfer the right to access and/or use the Licensed Products; (iii) recreate, lease or use the Licensed Products for time sharing, hosting, service provider or like purposes; or (iv) in any way use the Licensed Products and/or Documentation to provide the Licensed Products to a Third-Party; or (v) post or introduce any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, through or into the Licensed Products (including through Third-Party Apps and/or Customer Developed Applications); or (vi) remove any product identification, proprietary, copyright or other notices contained in the Licensed Products or Documentation; or (vii) modify any part of the Licensed Products, create a derivative work of any part of the Licensed Products, or incorporate the Licensed Products into or with other software, except to the extent (a) expressly authorized under this Agreement in the creation of Customer Developed Applications, or (b) expressly authorized in writing by NuVerge; or (viii) publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Licensed Products from any source; or (ix) disable or attempt to circumvent any security mechanisms contained in or provided with the Licensed Products; or (x) utilize any device or program to enable access to the Licensed Products in a manner such that the individual accessing the Licensed Products is not counted as a User.

3.4 Reservation of Rights. All rights not expressly granted to Customer under this Agreement are reserved to NuVerge.

4. CUSTOMER RESPONSIBILITIES

4.1 Customer’s Responsibility for Customer Developed Applications. Customer’s development of the Customer Developed Applications must comply with the Documentation and any other guidelines made available to Customer by NuVerge. NuVerge will provide Customer with reasonable prior notice of any changes to the Licensed Products that may impact Customer Developed Applications. Customer is solely responsible and liable for Customer Developed Applications, including all Customer Data contained therein or processed by Customer Developed Applications. Customer is solely responsible for the development, operation, and maintenance of Customer Developed Applications except as expressly set forth to the contrary herein. Except for the Licensed Technology Products and to the extent arising from the Licensed Technology Products embodied in the Customer Developed Applications, Customer shall, without limitation, be solely responsible and liable for: (a) features and functions of Customer Developed Applications; (b) the accuracy and appropriateness of any materials posted on or within the Customer Developed Applications (including, among other things, any product-related materials); (c) ensuring that any materials included within Customer Developed Applications do not violate applicable law or the Documentation, and do not promote illegal activities or violate third parties’ rights; (d) to the extent Customer Developed Applications collect personal information from individuals, ensuring that Customer Developed Applications accurately and adequately disclose, either through a privacy policy or otherwise, how Customer collects, uses, stores, and discloses data collected from Customer’s Users of the Customer Developed Applications; and (e) any of Customer’s Users’ or Customers’ claims relating to Customer Developed Applications or any of Customer’s services utilized in connection with Customer Developed Applications.

4.2 Traffic. Customer is responsible and liable for all communications, content, and other data originating from or directed by Customer during Customer’s use of the Licensed Products.

4.3 Users. Customer warrants that the maximum number of Users that Customer authorizes to access and use the Licensed Products and the Documentation will not knowingly or intentionally exceed the number of Users permitted to access and use the Licensed Products as described in the applicable Licensed Product Attachment.

4.4 Unauthorized Access. Customer shall take commercially reasonable steps designed to prevent any unauthorized access to, or use of, the Licensed Products and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify NuVerge. Customer shall protect Customer’s authentication keys and any other log-in or security credentials related to the Licensed Products (“Credentials”). Customer is responsible and liable for all actions taken with Customer’s Credentials except when a third-party gains access to Customer’s Credentials or is otherwise able to access Customer’s account due to a security flaw or other error or omission by NuVerge or its Affiliates.

5. PREVIEW FEATURES; NON-PRODUCTION ENVIRONMENTS; HOSTING

5.1 Preview Features. NuVerge may, in its sole discretion, provide Customer with access to Preview Features during the term of the applicable Licensed Product Attachment. Customer’s use of the Preview Features is subject to the terms and conditions of this Agreement and any additional terms for the Preview Features described in a Licensed Product Attachment. Preview Features are provided AS-IS, without warranty whatsoever. Service Level Agreements do not apply to the Preview Features.

5.2 Non-Production Environments. NuVerge and Customer may agree that, in certain circumstances, Customer may have the opportunity to access Non-Production Environments. When such circumstances arise, NuVerge may, but is under no obligation to, provide Customer with continued access to a single Non-Production Environment at no additional cost upon completion of any implementation or configuration services or other Professional Services. Additional Non-Production Environments may be available for a fee. Customer’s access to, and use of, the Non-Production Environment will be subject to the terms, conditions and restrictions of this Agreement and any applicable Licensed Product Attachment(s), except that (i) Customer may not access or use Non-Production Environments for its day-to-day business usage of the Licensed Products; (ii) NuVerge provides no warranty for, and specifically disclaims all warranties related to, Non-Production Environments; and (iii) Service Level Agreements do not apply to the Non-Production Environments. For the avoidance of doubt, and notwithstanding the foregoing, the obligations applicable to data protection and the safeguarding of Customer Data shall apply insofar as the Non-Product Environment stores, maintains, or otherwise processes such Customer Data.

5.3 Development of Similar Applications. Customer specifically acknowledges that NuVerge and/or its Affiliates and customers may develop and publish applications with features and functionalities that are similar to Customer Developed Applications, provided that NuVerge and/or its Affiliates do not breach its confidentiality obligations under this Agreement.

5.4 Hosting. Customer agrees that: (a) Customer Developed Applications must be hosted on the Licensed Products to operate as intended, and (b) without maintaining a subscription to the Licensed Products, the Customer Developed Applications, are inaccessible. Customer authorizes NuVerge, its Affiliates, and/or any third-party hosting providers, to host the Customer Developed Applications on servers owned or operated by NuVerge, or on the servers of third-party hosting providers. Customer understands and acknowledges that NuVerge may use Affiliates to provide some operations and functions associated with the Licensed Products. Notwithstanding any such outsourcing, NuVerge is responsible for operating, maintaining, and providing access to the Licensed Products in accordance with the provisions of this Agreement.

6. AUDIT

NuVerge, at its own expense, may electronically audit Customer’s use of the Licensed Products to verify compliance with this Agreement and all Licensed Product Attachments at any time, but limited to one time per year. Any such audit will be designed to minimize disruption to Customer’s normal business operations. The terms of the audit will be treated as NuVerge’ Confidential Information. If an audit reveals that Customer has underpaid Fees due to NuVerge based on Customer’s usage of the Licensed Products in excess of the number of Users, seats, modules, and any other restrictions authorized under any applicable Licensed Product Attachment, then NuVerge shall provide the findings of its audit to Customer, and NuVerge may invoice Customer for the Fees applicable to the usage beyond the licensing limitations authorized under any applicable Licensed Product Attachment, and at NuVerge’ then- current list prices. Customer shall have the right to dispute such invoices within thirty (30) days of receipt, at which point the parties shall meet and confer on a mutually agreeable resolution. All undisputed invoices for excess usage will be due within thirty (30) days of receipt.

7. THIRD-PARTY APPS; GENERAL DATA INDEMNIFICATION

NuVerge or third parties may make third-party products or services available through and/or with the Licensed Products (as a convenience to Customer), including, for example, Third-Party Apps. Any acquisition or use by Customer of such Third-Party Apps, and any exchange of data between Customer and any Third-Party Apps is solely between Customer and the applicable Third-Party App provider. NuVerge does not warrant or support Third-Party Apps or other products or services not created or offered by NuVerge, whether designated by NuVerge as “certified” or otherwise. NuVerge is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party App or its provider. The Licensed Products may contain features that interoperate with Third-Party Apps. NuVerge cannot guarantee the continued availability of such Third-Party Apps features and may cease providing them without notice, if for example and without limitation, the provider of a Third-Party App ceases to make such Third-Party App available for interoperation with the corresponding Licensed Product(s) feature(s) in a manner acceptable to NuVerge.

If Customer creates Customer Developed Applications or NuVerge provides a Deliverable at Customer’s request under an Engagement Document or Statement of Work to perform a call out to Third-Party Apps, database, or service (each, a “Third-Party Service”), Customer represents and warrants that Customer has the right to access or connect with such Third-Party Service and to use such Third-Party Service to retrieve, manipulate, process and modify data contained in the Third-Party Service and agrees to indemnify NuVerge for Third-Party claims arising from said access or connection.

8. PROFESSIONAL SERVICES; IMPLEMENTATION

8.1 Professional Services Generally. During the Term, Customer may request that NuVerge provides Professional Services. Any Professional Services to be provided under this Agreement will be performed in accordance with industry standards and subject to a separate Statement of Work and Business Requirements Document. NuVerge agrees to use commercially reasonable efforts to render the Professional Services by the delivery dates specified in the applicable Statement of Work and Business Requirements Document, if any such delivery dates are identified. Further, NuVerge shall designate a project manager and identify such individual in an applicable Statement of Work and Business Requirements Document related to such Statement of Work.

8.2 Access to Customer Resources. Customer agrees to provide NuVerge with reasonable access to Customer materials, resources, personnel, equipment, or facilities to the extent such access is necessary for the performance of Professional Services. To the extent that Customer does not timely provide the foregoing access required for NuVerge to perform the Professional Services or deliver the Deliverables, NuVerge shall be excused from performance until such items are provided.

8.3 NuVerge Configured Applications. Professional Services performed by NuVerge may include, or result in, the creation of NuVerge Configured Applications. NuVerge Configured Applications constitute Deliverables under a Statement of Work; as such, Customer’s use of and access to the NuVerge Configured Applications is subject to the terms of Section 3, including the terms of the applicable Licensed Product Attachment, and all other restrictions in this Agreement.

8.4 Changes to Scope of Professional Services. If Customer desires to change a Statement of Work, Customer will submit a written request to NuVerge detailing the proposed changes. If NuVerge is willing to accommodate such changes, NuVerge shall prepare an amendment to the Statement of Work detailing the changes, any fee adjustments required because of such changes, any adjustments to the delivery schedule required because of such changes, and any other necessary adjustments. If the Statement of Work amendment is agreeable to Customer, both parties will execute the amendment. Unless and until Customer and NuVerge agree to such an adjustment to the Statement of Work, it will remain unchanged.

8.5 Deliverables. Except as set forth in an applicable Statement of Work, NuVerge owns and will retain ownership of all the results and output of the Professional Services (the “Deliverables”) and all intellectual property rights thereto, and any modifications, improvements, and derivative works thereof (including any such materials to the extent incorporating any Feedback). Any portion of the Deliverables that is created specifically for Customer as identified in the applicable Statement of Work (the “Custom Deliverables”), shall belong to Customer, and NuVerge assigns all rights, title, and interest, in and to the Custom Deliverables, including all intellectual property rights thereto to Customer. Notwithstanding the foregoing, the Parties agree that this Section 8.5 does not transfer any right, title or ownership in Customer’s Confidential Information and NuVerge agrees that it shall not incorporate NuVerge Configured Applications containing Customer’s Confidential Information into the Licensed Products.

8.6 General Skills and Know-How. NuVerge and its personnel shall be free to use and employ their general skills, know-how, expertise, methods, or skills gained or learned during the course of this Agreement provided that such use does not disclose, use or incorporate Customer’s Confidential Information (including Customer Data). To the extent that the Professional Services require the incorporation of third-party software provided by Customer, or Third-Party Apps, Customer shall be responsible to procure the appropriate licenses for such software.

9. TRAINING

NuVerge’ online Documentation contains information that instructs Users on the proper operation of the Licensed Products. If Customer desires additional training services for its Users, Customer may purchase such additional training services from NuVerge at the then-current rates for such training.

10. CONFIDENTIALITY

10.1 Confidential Information. “Confidential Information” means any and all information provided by a party or its Affiliates (“Discloser”) to the other party or its Affiliates (“Recipient”) during the Term of this Agreement, in tangible or digital form, orally or through visual inspection, or observed by Recipient at Discloser’s premises, including, without limitation, business and technical information, and information related to: inventions; ideas; processes; apparatuses; structures; software; data; works of authorship; know-how; trade secrets; improvements; discoveries; developments; designs; techniques; products; technology; operations; facilities; operations; marketing; business plans; budgets; finances; contracts; pricing; costs; suppliers; customers; and the existence of any business discussions, negotiations, or agreements between Discloser and Recipient or any Third-Party.

10.2 Non-Disclosure. Except as expressly permitted herein, Recipient shall not disclose Discloser’s Confidential Information to any Third-Party. Recipient may disclose Discloser’s Confidential Information solely to its subsidiaries, and its and their employees, officers, directors, attorneys, financial advisors, and lenders (“Representatives”) who have a need-to-know Discloser’s Confidential Information to perform its obligations and exercise its rights under this Agreement, and who are bound by a written agreement having terms at least as restrictive as the terms herein. Each party shall be responsible and liable for any breach of this Agreement by it, its Affiliates, and its and their Representatives.

10.3 Protection. Recipient shall prevent the unauthorized use and disclosure of Discloser’s Confidential Information using at least the same degree of care, but no less than reasonable care, it uses to prevent the unauthorized use and disclosure of its own confidential information of a similar nature. Recipient shall not remove any proprietary or confidential notice from any form of Discloser’s Confidential Information.

10.4 Exceptions. The obligations in this Section 10 will not apply to any information that the Recipient can demonstrate through written evidence was: (i) publicly available without breach of an obligation to maintain the confidentiality of such information; (ii) rightfully known by Recipient prior to the receipt of such information from Discloser without any obligation of confidentiality; (iii) rightfully obtained by Recipient on a non- confidential basis from a Third-Party who is not under any obligation to maintain the confidentiality of such information; or (iv) developed by Recipient independently of and without reference to Discloser’s Confidential Information. If Recipient is required by, or receives an order, subpoena, or demand from, a court or government agency to disclose any of Discloser’s Confidential Information to a Third-Party, then Recipient shall promptly notify Discloser in writing of any such requirement, order, subpoena, or demand prior to disclosure of Discloser’s Confidential Information and reasonably assist Discloser in its efforts, if any, to obtain a protective order or other protection to prohibit public disclosure.

10.5 Return of Confidential Information. Upon expiration or termination of this Agreement, or at Discloser’s request, Recipient will return all Confidential Information of the Discloser in the Recipient’s possession or confirm destruction. Notwithstanding the foregoing, Recipient may retain copies of the Discloser’s Confidential Information that are: (i) required to be maintained by applicable law, but only for the period of time required by such applicable law; and/or (ii) stored electronically pursuant to Recipient’s routine electronic back up policies until such time as the electronic copies are destroyed pursuant to such policies, provided that the Discloser’s Confidential Information is not accessible in the ordinary course of business.

11. SERVICE LEVEL AGREEMENT; PRIVACY AND SECURITY

11.1 Service Levels. During the term of the applicable Licensed Product Attachment, NuVerge will make the Licensed Products available to Customer in accordance with the terms of its current Service Level Agreement. Customer’s sole and exclusive remedies for any failure to meet the obligations set forth in the Service Level Agreement are described therein.

11.2 Support by Affiliates. Customer understands and acknowledges that NuVerge may outsource or use Affiliates to provide some operations and functions associated with the Licensed Products, including those described in a Service Level Agreement. Customer hereby grants NuVerge and its Affiliates the right to use, access, and provide technical support and maintenance services for the Customer Developed Applications, as applicable.

11.3 Customer Data. Except as set forth elsewhere in this Agreement, NuVerge will handle Customer Data in accordance with its current data processing agreement (“DPA”) and privacy policies. Unless otherwise agreed in writing by the Parties, Customer Data may only be hosted in, stored, and transmitted to, locations within the United States of America. Customer represents and warrants that it will obtain all applicable consents to the processing and storage of Customer Data by NuVerge and its Affiliates. Customer will indemnify NuVerge for all damages resulting from Customer’s failure to obtain the applicable consents in this Section 11.3.

11.4 NuVerge shall implement and maintain processes for detecting, analyzing, containing, investigating, gathering and preserving evidence, reporting, resolving and recovering from any suspected or actual occurrence by or involving NuVerge or NuVerge’ personnel that compromises the confidentiality, integrity or availability of Customer’s Confidential Information (including Customer Data) or NuVerge’ systems hardware, equipment, devices or premises computers including, but not limited to, distributed denial-of-service (DDoS) and other system and network attacks, the loss, misuse, unauthorized access, disclosure, alteration, destruction, exfiltration, or transfer of Customer’s Confidential Information (including Customer Data), or any other circumstance pursuant to which applicable laws and regulations require notification of such event to be given to affected parties and/or regulatory bodies (collectively, an “Security Incident”). NuVerge shall immediately notify Customer upon discovery of a Security Incident.

11.5 Customer shall have the sole right to determine (i) whether notice of any Security Incident will be provided to any individuals, regulators, law enforcement agencies or consumer reporting agencies and (ii) the contents of such notice, whether any type of remediation may be offered to affected individuals, and the nature and extent of any such remediation. Notwithstanding anything in the Agreement to the contrary, Customer reserves the right to use NuVerge’ name in the notification of any such Security Incident. NuVerge agrees to pay actual costs for notification and any associated mitigation incurred by Customer including, but not limited to, costs associated with providing notice, printing, mailing, credit monitoring, identity theft protection, call center services, etc., if Customer determines in its sole discretion that a Security Incident by NuVerge is significant enough to warrant such measures. NuVerge shall also reimburse Customer for all reasonable costs, expenses, damages, and other losses resulting from any Security Incident involving Customer’s Confidential Information (including Customer Data) maintained, stored, collected, or otherwise processed by NuVerge or NuVerge’ agents, contractors, service providers or personnel. The obligations of this Section shall survive the expiration or earlier termination of this Agreement.

12. LIMITED WARRANTIES; DISCLAIMERS

12.1 Licensed Products Warranty. During the term of the applicable Licensed Product Attachment, NuVerge warrants that the Licensed Products, will materially conform to the Documentation or the applicable Statement of Work. If the Licensed Products do not materially conform to the Documentation or the applicable Statement of Work, then NuVerge will, within thirty (30) days of Customer’s notification to NuVerge of a material non-conformity, either: (i) modify the Licensed Products such that they materially conform to the Documentation or the applicable Statement of Work; or (ii) have a correction plan in place to correct the non-conformity. If NuVerge is unable to meet the foregoing obligations, Customer will have the right to terminate the Agreement or the applicable Licensed Product Attachment and receive a refund of any fees Customer has paid for use of the Licensed Products from the date of the warranty claim forward. NuVerge is not responsible for, and the provisions of this Section 12.1 do not apply to, non-conformances that are caused by, (i) integration and/or interoperability with Customer Developed Applications, Third-Party Applications or other materials not provided by NuVerge; or (ii) Customer’s modification of the Licensed Products; or (iii) Customer’s use of the Licensed Products in breach of this Agreement (including breach of Section 3); or (iv) Customer’s use of the Licensed Products in a manner not set forth in the Documentation or the applicable Statement of Work; or (v) any non-conformances that NuVerge is unable to verify, except for those that Customer has reasonably demonstrated as a non-conformance.

12.2 Professional Services Warranty. NuVerge will perform all Professional Services in a professional and workmanlike manner and any Deliverables, and Custom Deliverables provided, including NuVerge Configured Applications, will materially conform to the Documentation, or the applicable Statement of Work, and any other specifications and requirements agreed upon in writing by the Parties. NuVerge will use commercially reasonable efforts to correct any material non-conformance in the defective Services or Deliverables at no charge to Customer provided such non-conformance is solely attributable to NuVerge and/or its personnel. If NuVerge cannot resolve a material non-conformance in the Services or Deliverables or provide a plan for correction with a mutually agreed upon schedule for correction within a reasonable period of time, not to exceed thirty (30) days, Customer will have the right to terminate the applicable Statement of Work and receive a full refund of any fees Customer has paid for the non-conforming Services or Deliverables. Customer must notify NuVerge of the non-conformity within thirty (30) days of completion of the applicable Professional Service or delivery of the applicable Deliverable. THE FOREGOING STATES NUVERGE’ SOLE AND EXCLUSIVE OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR BREACH OF THIS SECTION 12.2.

12.3 Communications Networks. Customer's use of the Licensed Products is dependent on the availability and coverage of communications infrastructure systems such as wireless networks, telecommunications networks, and the Internet, which involve facilities owned and operated by third parties. NUVERGE IS NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY, OR FAILURE OF ANY COMMUNICATIONS INFRASTRUCTURE SYSTEMS OR FACILITIES, INCLUDING WITHOUT LIMITATION, THOSE REQUIRED TO USE AND ACCESS THE LICENSED PRODUCTS.

12.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DOCUMENTATION, OR THE APPLICABLE STATEMENT OF WORK, THE LICENSED PRODUCTS (INCLUDING ALL PREVIEW FEATURES AND PRE-PRODUCTION ENVIRONMENTS) AND ALL PROFESSIONAL SERVICES ARE PROVIDED “AS- IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DOCUMENTATION, OR THE APPLICABLE STATEMENT OF WORK, TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER NUVERGE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DOCUMENTATION, OR THE APPLICABLE STATEMENT OF WORK, THIRD-PARTY APPS ARE PROVIDED AS-IS, WITHOUT WARRANTY WHATSOEVER.

12.5 Customer Warranties. Customer represents and warrants that Customer owns or has obtained all rights, consents, permissions, and licenses necessary to allow NuVerge and the Licensed Products access to, or possession, manipulation, processing, or use of, the Customer Data, in accordance with the terms of this Agreement.

12.6 Customer Responsibility for Customer’s Technical Requirements. Customer is solely responsible for selection of licensed products, any third-party apps, and the features and functionality of customer developed applications to achieve customer’s intended results. Unless otherwise agreed to by the parties, customer is responsible for identifying the minimum technical requirements for its hardware and software for use with the licensed products, third-party apps and customer developed applications. NuVerge makes no warranty as to the adequacy or capacity of any customer hardware, customer developed applications or third-party apps (except those provided by NuVerge’ subcontractors) to attain any of the performance objectives of customer.

13. INTELLECTUAL PROPERTY RIGHTS

NuVerge and its suppliers retain all right, title and interest in and to the Licensed Products, NuVerge Configured Applications, and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights), all Feedback, and all copies, modifications, and derivative works of all the foregoing, (including any such materials to the extent incorporating any Feedback). Customer acknowledges that it is obtaining only a limited right to use and access the Licensed Products, NuVerge Configured Applications, and Documentation, and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement or elsewhere no ownership rights are being conveyed to Customer under this Agreement or otherwise. Customer acknowledges that NuVerge is free to exploit, use, license and distribute any Feedback provided to NuVerge as it sees fit, without obligation of compensation or attribution.

13.1 Customer Data and Customer's Confidential Information. As between Customer and NuVerge, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data and Customer's Confidential Information, including all Intellectual Property Rights relating thereto.

14. LIMITATION OF LIABILITY

14.1 Limitation of liability. Except for either Party’s indemnification obligations, or for a breach of Section 10 (Confidentiality), or for a damages arising from a breach of NuVerge’ DPA, A SECURITY INCIDENT, or data security provisions, in no event shall either Party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages or any type of kind, (Including but not limited to lost profits, loss of data, revenue, use or other economic advantage) regardless of the form of action, whether in contract or tort, arising out of, caused by, or in any way connected to this Agreement, even if the Party from which the damages are being sought or such Party’s licensors have been previously advised of the possibility of such damages. The foregoing limitations do not apply to either Party’s gross negligence or willful misconduct.

14.2 Damages Cap. Except for either Party’s indemnification obligations, or for a breach of Section 10 (Confidentiality), or for a damages arising from a breach of NuVerge’ DPA, A SECURITY INCIDENT, or data security provisions, neither Party will be liable to the other Party for damages that exceed two (2) times amounts paid or payable by Customer for the relevant Licensed Product(s), or Professional Services giving rise to the liability in the TWELVE-MONTH (12)period prior to the date the claim arose.

14.3 The limitations set forth in this Section shall apply even if any exclusive remedy in this Agreement fails of its essential purpose.

14.4 Except for actions to enforce indemnity obligations, or for actions for nonpayment of fees, NuVerge and Customer agree that no action arising out of or related to this Agreement may be brought more than two (2) years after the cause of action arose.

15. INDEMNITIES

15.1 Indemnification by NuVerge. NuVerge will defend or settle, at its option, any claims or suits brought by a Third-Party against Customer, Customer’s Affiliates, directors and officers (“Customer Indemnitees”), alleging that the Licensed Products misappropriate or infringe any valid Third-Party intellectual property right (“Third-Party Claim”) and will indemnify the Customer Indemnities from and against any and all liabilities, damages, claims, costs and expenses, including attorneys’ fees, and pay damages and costs that are finally awarded by a court for a Third-Party Claim (“Losses”). If the Licensed Products become, or are likely to become, subject to a Third-Party Claim, then NuVerge, at NuVerge’ sole option and expense, may do any of the following: (a) modify the Licensed Products such that they no longer infringe; (b) procure for Customer the right to continue to use the Licensed Products (as applicable) while retaining substantially similar functionality; or (c) terminate this Agreement and all outstanding Licensed Product Addendums upon notice to Customer.

15.2 Conditions for NuVerge’ Indemnification. NuVerge’ obligations for a Third-Party Claim (including any related Losses) under Section 15.1 are conditioned on all of the following: (a) Customer promptly notifies NuVerge in writing of the Third-Party Claim or provided that any delay hereunder does not adversely prejudice NuVerge’ defense of such claims; (b) Customer allows NuVerge sole control of the defense and settlement of such Third-Party Claim; and (c) Customer fully cooperates with the defense and settlement of the Third-Party Claim.

15.3 Exclusions. The foregoing obligations do not extend to any Third-Party Claim (including any related Losses) related to: (a) NuVerge compliance with Customer’s (or its Affiliates’) instructions, requirements, or specifications; (b) any alteration, modification or servicing of the Licensed Products by anyone other than NuVerge or NuVerge’ subcontractors; (c) the combination of the Licensed Products with any other product, devices, equipment, component, part, item, hardware, software, service, or process not provided by NuVerge; (d) Third-Party Apps; (e) Customer Developed Applications; and (f) unauthorized use of the Licensed Products.

15.4 Entire Obligation. Sections 7, 15.1, 15.2 and 15.3 state NuVerge’ entire obligation, and Customer’s sole and exclusive remedy for all claims that the Licensed Products infringe or misappropriate a THIRD-PARTY intellectual property right.

15.5 Customer Indemnification. Upon NuVerge’ request, Customer will indemnify and defend NuVerge and its Affiliates, and each of their officers and directors, from and against any and all claims, lawsuits, demands, actions or other proceedings brought against it by any Third-Party due to, arising out of, or related to (a) Customer’s or its Users’, and/or Affiliates’ Users’ misuse of the Licensed Products; and (b) Customer’s or its Users’ and/or its Affiliates’ Users’, violation of any law, regulation or Third-Party rights; and (c) Customer Developed Applications; (d) Customer Data and Customer Confidential Information; and Customer’s obligations under Section 7 Third-Party Apps; General Data Indemnification. Customer shall pay all costs, damages, and expenses, including, without limitation, attorneys’ fees and costs awarded against or otherwise incurred by NuVerge in connection with or arising from any such claim, lawsuit, action, demand or other proceeding. NuVerge will provide Customer with prompt written notice of such claim and cooperate with Customer’s defense and settlement of such claim. If the Customer Developed Applications, Customer Data or Customer Confidential Information become, or are likely to become, subject to a Third-Party Claim, then NuVerge may terminate this Agreement and all outstanding Licensed Product Attachments upon thirty (30) days’ notice to Customer.

15.6 NuVerge’ Indemnification for Breach of DPA. NuVerge will indemnify Customer and its Affiliates, from and against Losses (i) caused by NuVerge’ breach of Section 5.1 of the DPA; and (ii) NuVerge’ failure to provide timely assistance to Customer in the event of a Security Incident (as that term is defined in this Agreement). NuVerge’ obligation to indemnify Customer for Losses under this Section 15.6 (ii) does not apply to Losses relating to Customer’s obligations to notify Users and/or Customer’s customers that is caused by Security Incidents relating to Customer Developed Apps, Customer Data or Customer Confidential Information, provided that such Losses do not arise from NuVerge’ breach of its obligations under this Agreement. Customer and NuVerge will cooperate in the investigation of Security Incidents.

16. GENERAL

16.1 Governing Law. This Agreement shall be governed by Colorado law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.

16.2 Dispute Resolution. Before initiating any legal claim or action (except with respect to equitable relief or non- payment of fees due under this Agreement), the parties agree to refer any dispute, controversy or claim arising out of or related to this Agreement (collectively, a “Claim”) to members of the parties’ executive management (each such member a “Representative”) for resolution, which referral shall be evidenced by a written notice from either party to the other (the “Referral”). The parties’ representatives shall meet in person or via conference call within ten (10) business days of such Referral. If the parties have not reached a mutually agreeable resolution of the Claim within ten (10) business days after their initial meeting, or within an additional time period mutually agreed upon, then either party may request that such claim be submitted to a mediator agreed upon by the parties. The mediator shall assist in attempting to negotiate a resolution of the Claim. The mediation shall be non-binding unless the parties otherwise agree. Unless otherwise agreed by the mediator and parties, the mediation shall be held within 21 days of the request for mediation. The parties must attend the mediation and act in good faith to genuinely attempt to resolve the Claim. Any information or documents disclosed by a party under this clause: (a) must be kept confidential; and (b) may only be used to attempt to resolve the Claim. Each party shall pay its own costs for complying with this Section 18.2 and shall equally share the cost of the mediator.

16.3 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement (or any part thereof) without the advance written consent of the other party (not to be unreasonably withheld or delayed), except that NuVerge may assign this Agreement (i) in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of NuVerge’ assets or voting securities, or (ii) to an Affiliate of NuVerge provided that such Affiliate assumes all the obligations and duties hereunder. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 18.3 will be null and void.

16.4 Severability. If any provision of this Agreement is adjudged by any court or arbitral body of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. The parties shall attempt in good faith to replace any such invalid or unenforceable provision with a valid and enforceable provision designed to achieve the same purpose and intent to the extent possible under applicable law.

16.5 Injunctive/Interim Relief. Your breach of this Agreement may result in irreparable harm to NuVerge for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law and/or provided for in this Agreement, NuVerge shall have the right to seek an injunction, specific performance, or other interim, interlocutory or equitable relief in any court of competent jurisdiction to prevent violation of these terms and without the requirement of posting a bond or undertaking or proving injury as a condition for such relief.

16.6 Notices and Reports. Any notice or report hereunder must be in writing to the notice address set forth above and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.

16.7 Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement is for administrative purposes only and has no legal effect.

16.8 Headings and Construction. The section headings herein are for purposes of convenient reference only and may not be used to construe or modify the terms written in the text of this Agreement. Unless expressly indicated to the contrary, the term “including” (and variations thereof) means “including, without limitation”.

16.9 Entire Agreement; Interpretation. This Agreement, which includes all associated attachments and exhibits, is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any terms and conditions contained in, or provided with, either party’s purchase orders, quotes, order confirmations or like documents will have no force or effect. In the event the terms of an exhibit, Licensed Product Attachment, Statement of Work, or policy, either attached hereto or referenced herein, conflicts with the terms of this Agreement, the conflicting terms of the Licensed Product Attachment, or Statement of Work, or policy, shall prevail.

16.10 Remedies Cumulative. The remedies provided in this Agreement are cumulative and, except as expressly provided in this Agreement, will not preclude the assertion or exercise of any other rights or remedies available under law, in equity, or otherwise.

16.11 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

16.12 No Third-Party Beneficiaries. This Agreement does not confer any rights or remedies upon any Third-Party.

16.13 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including any strike, blockade, war, act of terrorism as designated by the United States government, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, provided that such data networks or services are not controlled, operated, or maintained by of NuVerge, or NuVerge’ subcontractors , or refusal of approval or a license by a government agency.

16.14 Export. Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any software or other materials received from NuVerge under this Agreement except in full compliance with all United States and other applicable acts, laws, and regulations.

16.15 Further Actions and Assurances. The parties shall execute and deliver any and all documents, and cause all other reasonable action to be taken, that may be necessary or proper to effect the intent and carry out the transactions contemplated by this Agreement.

16.16 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be considered an original and all of which when taken together will constitute a single fully signed original. Facsimile and other electronic means of signatures on this Agreement are binding.

16.17 Official Language. The official language of this Agreement is English. For purposes of interpretation, or in the event of a conflict between English and versions of this Agreement in any other language, the English language version shall be controlling.

16.18 Government End Users. If Customer is an entity of the United States Government, the Licensed Products and Documentation are provided to Customer as a commercial item strictly under the terms and conditions of this Agreement and include only those rights customarily available to the public. The Customer is not authorized to permit disclosure by any agency or other part of the Federal Government that exceeds in any way the use and disclosure rights (i) conveyed to Customer in this Agreement; or (ii) provided in FAR 12.212 (Computer Software) and (for Department of Defense use or disclosure) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (i) or (ii) are the more restrictive. If an agency or other part of the Federal Government has a need for rights not conveyed under this Agreement, it must negotiate with NuVerge for such rights.

16.19 Non-Solicitation. Neither party, including its Affiliates, shall recruit or solicit, employ, or otherwise engage an employee of other party who has had direct involvement in the provision of Licensed Products and/or Customer Developed Applications under this Agreement during, and for a period of six (6) months following any termination of, the employee’s employment with the other party. Should a party violate this provision, the violating party shall pay the other party one hundred percent (100%) of the former employee’s annual base salary with the non-violating party as liquidated damages for the violation. Such payment shall be the non- violating party’s sole remedy with respect to the violating party. The foregoing shall not restrict either party from hiring a person responding to a general advertisement for employment or whose employment was terminated by the other party prior to any solicitation by such party.

16.20 Publicity. During the Term and at all times after the termination or expiration of this Agreement, NuVerge shall not make any media release or other public announcement relating to or referring to this Agreement without Customer’s prior written consent which consent shall be at Customer’s sole and absolute discretion. NuVerge shall acquire no right to use, and shall not use, without Customer’s prior written consent, the terms or existence of this Agreement or any SOW, the names, trade names, trademarks, service marks, artwork, designs, or copyrighted materials, of Customer, its related or subsidiary companies, parent, employees, directors, shareholders, assigns, successors, franchisees, or licensees: (a) in any advertising, publicity, press release, Customer list, presentation or promotion; (b) to express or to imply any endorsement of NuVerge or NuVerge’ services; or (c) in any manner other than expressly directed by Customer.

16.21 18.22 NuVerge Business Partners. Customer agrees NuVerge’ business partners are independent third-party entities and, except to the extent they are acting as subcontractors pursuant to of this Agreement, NuVerge is not liable for nor bound by any acts of such business partner.