By PlanStreet.

PlanStreet warrants that during the applicable Subscription Term (a) the Service shall perform materially in accordance with the applicable Documentation; and (b) PlanStreet shall not decrease the functionality of the Service. PlanStreet warrants that (c) this Agreement is legally binding upon it and enforceable in accordance with its terms.

By Customer.

Customer warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; (b) it has obtained all legally required consents and permissions from End Users for the submission and processing of personal data through the Service, and (c) the transfer and processing of Customer Data under the Agreement is lawful

Calculation.

Subscription fees are based on an annual period (or pro-rata portions thereof, calculated on a daily basis) that begins on the subscription start date and each annual anniversary thereof. Subscriptions to the Service are sold on a tiered basis. Additional users will be charged at the initial PlanStreet Subscription plan.

Taxes.

Any fees charged to customers are exclusive of taxes. Except for those taxes based on PlanStreet’s net income, the Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service be subject to withholding tax by any government, the Customer shall reimburse PlanStreet for such withholding tax.

Definition of Confidential Information.

During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as or should reasonably be understood by the receiving party to be proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the Service, any Order Form(s) entered into by the parties, Customer Data, Results, business plans, product plans and roadmaps, strategies, forecasts, projects and analyses, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party, or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.

Protection of Confidential Information.

Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.

Equitable Relief.

The receiving party acknowledges that the remedy at law for breach of this Section 5 may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 5 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 5 in addition to any other remedy to which the disclosing party is entitled at law or in equity.

Compelled Disclosure.

The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.

By Customer.

Customer owns all right, title, and interest in and to Customer Confidential Information and Customer Data, including all related Intellectual Property Rights. Customer grants PlanStreet and it’s authorized third-party service providers a worldwide, non-exclusive and non-sublicensable license to host, copy, access, process, transmit, and display Customer Data: (a) to maintain, provide, and improve the Service and perform under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) to investigate in good faith an allegation that an End User is in violation of this Agreement or the PlanStreet User Terms of Use; or (d) at Customer’s direction or request or as permitted in writing by Customer.

By PlanStreet.

PlanStreet owns and will continue to own all rights, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information, Results, and the Service, including any enhancements, customizations, or modifications thereto. Where Customer purchases Professional Services hereunder, PlanStreet grants to Customer a non-sublicensable, non-exclusive license to use any reports and other materials developed by PlanStreet as a result of the Professional Services (“Results”) solely in conjunction with Customer’s authorized use of the Service and in accordance with this Agreement.

By Customer.

Customer shall defend PlanStreet, its Affiliates, and their employees, officers, and directors (together, the “PlanStreet Indemnified Parties”) from and against third party claims, actions, and demands arising from allegations that Customer Data, unauthorized use of the Service by Customer or its End Users, or PlanStreet’s processing of data pursuant to Customer’s instructions infringes a third party’s Intellectual Property Right or privacy right (each, a “Claim Against PlanStreet”), and Customer shall indemnify and hold the PlanStreet Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against PlanStreet Indemnified Parties as a result of, or for any amounts paid by the PlanStreet Indemnified Parties under a Customer-approved settlement of, a Claim Against PlanStreet.

By PlanStreet.

PlanStreet shall defend Customer, its Affiliates, and their employees, officers, and directors (together the “Customer Indemnified Parties”) from and against third party claims, actions, and demands alleging that Customer’s authorized use of the Service infringes or misappropriate any copyright, trade secret, U.S. patent, or trademark right of that third party (each, a “Claim Against Customer”), and PlanStreet shall indemnify and hold the Customer Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Customer Indemnified Parties as a result of, or for any amounts paid by the Customer Indemnified Parties under a PlanStreet-approved settlement of, a Claim Against Customer; provided, however, in no event will PlanStreet have any obligations or liability under this Section 7.2 to the extent a Claim Against Customer arises from (a) Customer or any End User’s use of the Service other than as permitted under this Agreement; or (b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Customer by PlanStreet.

Potential Infringement.

If the Service becomes, or in PlanStreet’s reasonable judgment is likely to become, the subject of a claim of infringement, then PlanStreet may in its sole discretion: (a) obtain the right, at PlanStreet’s expense, for the Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement, or (c) modify the Service so that it is no longer infringing. If PlanStreet, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then PlanStreet may suspend or terminate the Customer’s use of the Service, in which case PlanStreet’s sole liability (in addition to its obligations under Section 7.2) shall be to provide Customer with a prorated refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term. Sections 7.2 and 7.3 state PlanStreet’s sole liability and the Customer Indemnified Parties’ exclusive remedy for infringement claims.

Indemnification Process.

The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.

Limitation of Liability.

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (“INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING OR, IF OCCURRING WITHIN THE FIRST 12 MONTHS OF THE TERM, PRECEDING AND FOLLOWING THE FIRST EVENT GIVING RISE TO LIABILITY.

Exclusion of Consequential and Related Damages.

IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Entire Agreement.

This Agreement, including all attachments, exhibits, addendums, and any Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings, and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Order Form, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process, web portal, or any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

Governing Law.

Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Kentucky without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Lexington, Kentucky. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

Notice.

PlanStreet may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the PlanStreet website or through the Service and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. Other notices must be sent via email, first-class, airmail, or overnight courier to the addresses of the parties provided herein or via an Order Form and are deemed given when received. Notices to PlanStreet must be sent to PlanStreetInc., 348 East Main Street, Lexington KY 40507, Attn: Legal Dept.

Publicity.

PlanStreet will seek prior permission to include Customer’s name and logo in PlanStreet’s online customer list and in print and electronic marketing materials.

Beta Access.

Customers may be invited to participate in the review and testing of pre-release versions of new and beneficial tools and Service enhancements which may be identified to Customers as “alpha,” “beta,” “preview,” “pre-release,” “early access,” or “evaluation” product or services (collectively, the “Beta Tests” and such pre-release functionality, the “Beta Product”). The customer acknowledges and understands that its participation in Beta Tests is not required and is at the Customer’s own risk and that Beta Products are made available on an “as is” basis without warranties (express or implied) of any kind, and may be discontinued or modified at any time. Beta Products are for evaluation and testing purposes, not for production use, not supported, not subject to availability or security obligations, and may be subject to additional terms. PlanStreet shall have no liability for any harm or damage arising out of or in connection with Beta Products. The Beta Products, including without limitation Customer’s assessment of any Beta Product, are Confidential Information of PlanStreet.

Relationship of the Parties.

The parties are and shall be independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries of this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries of the Customer’s rights under this Agreement.

Force Majeure.

PlanStreet shall not be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond PlanStreet’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). PlanStreet shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). PlanStreet shall promptly notify Customers and make reasonable efforts to mitigate the effects of the Force Majeure Event.

Severability.

No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, 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 remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

Assignment.

Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the other party’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement and all Order Forms under this Agreement upon written notice without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and insure to the benefit of the parties, their respective successors, and permitted assigns.

Modifications.

PlanStreet may revise this Agreement from time to time by posting the modified version on its website. If in PlanStreet’s sole discretion, the modifications proposed are material, PlanStreet shall provide Customer with notice at least twenty (20) days prior to the effective date of the modifications being made. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, the Customer agrees to be bound by the revised version of the Agreement.

"Affiliate" means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.

"Customer Data" means information submitted by an End User through the Service, including all associated messages, attachments, files, tasks, project names, team names, channels, conversations, and other similar content.

"Documentation" means means PlanStreet’s then-current online user guides, as updated from time to time, and made accessible from within the “Help” feature of the Service.

"End User" means an individual who is authorized by the Customer to use the Service under the Customer’s account. End Users may include, without limitation, Customers or its Affiliates’ employees, consultants, contractors, and agents.

"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

"Improvements" means new features, functionality, enhancements, upgrades, error corrections and bug fixes to the Service made generally available by PlanStreet at no additional charge.

"Order Form" means an ordering document or an online order set forth in the Service interface entered into between Customer and PlanStreet (or Affiliates of either party) specifying the Service or Professional Services (if any) to be provided under this Agreement.

"Professional Services" means the customer success services provided by PlanStreet, as specified in the applicable Order Form.

"Service" means PlanStreet’s collaboration work management software as a service platform, including any Improvements, as described in the applicable Order Form.

"Subscription" means access to the Service purchased by the Customer on a per End User basis.

"Subscription Term" means the period identified in the Order Form during which Customer’s End Users are permitted to use or access the Service pursuant to the terms set forth in this Agreement.