Master Software as a Service Agreement

1. DEFINITIONS

“Account” means Customer’s password protected account to access the Lumavate Services.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Services” means Lumavate software that is accessed by Customer via the Internet.

“Customer Data” means all data supplied by Customer to Lumavate through the Lumavate Services.

“Confidential Information” means all financial, technical, business and other information regarding either party or its products or services which is marked as confidential, or if disclosed orally, is followed by a writing identifying it as confidential, and, includes, but is not limited to (a) oral and written information regarding any inventions, software, discoveries, developments, formulas, processes, methods, trade secrets, know-how, databases, or innovations developed by or for the disclosing party, and (b) oral and written information which is used in the disclosing party’s business and is proprietary to, about, or created by the disclosing party, including but not limited to financial information, market information, sales information, customer information, personnel information, and marketing strategies designated as confidential by the disclosing party, and not generally known by those not employed by the disclosing party.

“Lumavate Services” means Lumavate software that is accessed by Customer via the Internet.

“Order Form” means an order form executed by the parties that identifies the Services and/or Professional Services licensed or purchased by Customer.

“Professional Services” means services other than the Lumavate Services that may be offered and purchased in an Order Form.

“User’s Guide” means Lumavate’s online user documentation for Lumavate Services, as updated by Lumavate.

2. PROVISION OF SERVICES/RIGHTS OF USE

Lumavate grants to Customer a nonexclusive, nontransferable right to access to the Lumavate Services to Customer and its Affiliates, through Customer’s Account in consideration for the fees set forth on one or more Order Forms. Other than as expressly set forth in this Agreement, no license or other rights in or to Lumavate Services or Lumavate intellectual property rights are granted to Customer, and all such licenses and rights are hereby expressly reserved. The parties agree to comply with all applicable United States and foreign laws and regulations, including without limitation export and re-export control laws and regulations.

3. CUSTOMER RESPONSIBILITIES AND USE GUIDELINES

1. Customer will retain responsibility for administering security of Customer’s Account (e.g., the granting of rights to a user in the application). Customer is also responsible for ensuring that its users comply with this Agreement with respect to use of Lumavate Services. Lumavate shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Customer in accessing the Internet to access Lumavate Services. In addition, Customer shall: (a) provide industry “best practice” standards to ensure reasonable security for integration between applications at the Customer site and Lumavate Services; (b) configure necessary user accounts; and (c) comply with all applicable local, state, federal, and foreign laws in using Lumavate Services and, if using Lumavate Services outside of the United States, not use Lumavate Services in a manner that would violate any federal or state laws of the United States if conducted therein.
2. Customer shall use Lumavate Services solely for its internal business purposes as contemplated by this Agreement. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make Lumavate Services available to any third party; (ii) introduce software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs to the Lumavate Services; (iii) interfere with or disrupt the integrity or performance of Lumavate Services; (iv) attempt to gain unauthorized access to Lumavate Services or its related systems or networks; (v) modify, copy or create derivative works based on Lumavate Services; or (vi) disassemble, reverse engineer, or decompile the Lumavate Services, or access the Lumavate Services with the intent to build a competitive product or service, or copy or substantially copy any ideas, features, functions or graphics of the Lumavate Services.

4. TECHNICAL SUPPORT

Lumavate shall provide standard technical support for the Lumavate Services at no additional charge, as described in Exhibit A to this Agreement, which may be updated from time to time.

5. FEES AND PAYMENT

1. Lumavate shall invoice Customer for the fees as specified in an Order Form, via a physical invoice or an electronic invoice. All invoices are due as stated on the invoice, but if not stated, physical invoices shall be due within thirty (30) days of the invoice date, without any right of set- off or deduction. Electronic invoices shall be paid immediately via an online payment method. Except as otherwise provided herein, fees are non-refundable, and the number of licenses purchased cannot be decreased during the paid term. Lumavate may charge interest at the lesser of the maximum amount allowed by law or one and one-half percent (1.5%) per month on payments not timely made via paper invoices or failed electronic payments. In addition to any other rights or remedies of Lumavate, Lumavate may discontinue access to the Lumavate Service provided to Customer without liability to Customer, if any invoice is not paid within forty- five (45) days of the invoice date, until such amounts are paid in full. In any collection action relating to this Agreement, Lumavate shall be entitled to recover its costs of collection, including reasonable attorney’s fees.
2. In the course of providing the best Customer Service possible there may be instances when our Employees will incur travel expenses on behalf of our Customers. All reasonable out-of pocket expenses incurred in the course of Lumavate employees rendering Services in person to Customer will be invoiced to Customer, including travel, meals, lodging and supplies and incidental expenses.  All invoices are payable within 30 days of the invoice date.  Upon Customer’s request Lumavate will use Customer’s travel expense program when travel is booked directly through Customer and paid directly by Customer.
3. Customer shall also pay all taxes (including without limitation sales, use, excise, value added, and gross receipts) levied on this Agreement whether or not these are expressly stated in any Order Form, except taxes based on Lumavate’s income. Customer may provide a tax exemption number or affidavit of exemption, but Customer agrees to indemnify and hold Lumavate harmless for any taxes, penalties and interest that may arise if the claimed exemptions are disallowed.
4. Lumavate may increase the fees for Lumavate Services up to 5% over the prior annual fees, within a calendar year after the initial 12 month SaaS Term has expired. Such Lumavate Service fee increases shall take effect and only impact Customer invoices due after the date of the fee increase notification.

6. WARRANTIES

1. Lumavate represents and warrants that: (i) it owns or otherwise has sufficient rights to Lumavate Services to grant the rights and licenses granted herein; (ii) the Lumavate Services will substantially conform to the User’s Guide; and (iii) the Professional Services will substantially conform to the terms of this Agreement and an Order Form.
2. Customer’s exclusive remedies for breach of the warranty shall be the repair or replacement of Lumavate Services or Professional Services. Any claim for breach of warranty shall be made by providing written notice thereof to Lumavate together with a detailed explanation of the purported error. If repair or replacement is not possible within forty-five (45) days following Lumavate’s receipt of written notice of a breach of the warranty, Customer may terminate the license to the defective Lumavate Services by providing written notice of the same to Lumavate. Customer shall then be entitled to receive a refund of the fees paid by Customer for the Lumavate Services that are pre-paid and unused, for the period after termination.
3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO REPRESENTATIONS, PROMISES, WARRANTIES OR UNDERSTANDINGS RELATING TO THE LUMAVATE SERVICES OR PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, LUMAVATE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

7. CONFIDENTIALITY.

1. Each party receiving or having access to Confidential Information of the other party agrees to maintain the confidentiality of such Confidential Information and to only use it in carrying out its rights and obligations under this Agreement for a period of two (2) years after termination of this Agreement or any Order Form. Each party will protect the Confidential Information of the other party with the same degree of care it exercises relative to its own Confidential Information, but not less than reasonable care. Each party receiving Confidential Information of the other party agrees that it shall not sublicense, assign, transfer or otherwise display or disclose such Confidential Information to any third party and shall not reproduce, perform, display, prepare derivative works of, or distribute the Confidential Information except as expressly permitted in this Agreement.
2. The obligations of the parties in respect of the Confidential Information of the other party shall not apply to any material or information that: (a) is or becomes a part of the public domain through no act or omission by the receiving party, (b) is independently developed by employees or consultants of the receiving party without use or reference to the Confidential Information of the other party; (c) is disclosed to the receiving party by a third party that, to the receiving party’s knowledge, was not bound by a confidentiality obligation to the other party; or (d) is demanded by a lawful order from any court or other body empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, provide the other with a copy of such order and to provide reasonable assistance to the disclosing party (at the disclosing party’s expense in the case of reasonable out-of-pocket expenses) to object to such disclosure.

8. LIMITATION OF LIABILITY

1. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S OBLIGATIONS OF INDEMNIFICATION HEREIN, OR CUSTOMER’S BREACH OF SECTION 3(II), AND CUSTOMER’S OBLIGATION TO PAY ALL FEES AND EXPENSES RELATED TO THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
2. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOOD WILL, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR COMPUTER FAILURE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. INDEMNIFICATION

1. Lumavate represents that Lumavate Services does not infringe any Intellectual Property rights of any third party. Lumavate will defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any actions or claims made or brought by a third party against Customer alleging that Lumavate Services infringe any Intellectual Property right of any third party, provided that Customer (a) gives prompt written notice of any such claim to Lumavate; (b) gives to Lumavate sole control of the defense and resolution of such claim; and (c) provides reasonable information and assistance to Lumavate in defending such claim.
2. If Lumavate Services is held to infringe, or in Lumavate’s opinion the Lumavate Services is likely to be held to infringe any Intellectual Property rights of a third party, Lumavate may at its sole discretion and expense, either: (a) secure the right for Customer to continue use of the infringing Lumavate Services; (b) replace or modify the infringing Lumavate Services to make it non- infringing, provided such Lumavate Services contains substantially similar functionality; or (c) terminate the licenses to the infringing Lumavate Services modules granted hereunder. If Lumavate elects to terminate the Lumavate Services licenses under the foregoing provision, as Customer’s sole and exclusive remedy, Lumavate shall refund to Customer any unused, prepaid license fees for the infringing Lumavate Services modules indicated on the related Order Form.
3. Customer shall indemnify, defend and hold Lumavate harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any actions or claims (i) made or brought against Lumavate by a third party based upon the content of the Customer Data or Customer’s use of Lumavate Services in violation of this Agreement or applicable law; or (ii) that any Customer Data infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses.

10. TERM AND TERMINATION

1. This Agreement commences on the Agreement Effective Date and continues for the term of any particular license of Lumavate Services hereunder. The SaaS Term will commence on the start date specified in the relevant Order Form and continue for the period specified therein, unless sooner terminated as provided in this Agreement. Upon expiration of a SaaS Term, unless sooner terminated as provided in this Agreement, the SaaS Term will automatically renew for the same period of time as the initial Order Form and the Customer will be invoiced accordingly.
2. Either Customer or Lumavate may terminate this Agreement as a result of a material breach of this Agreement by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not cured or resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Customer, the material breach is not cured or resolved in a fifteen (15) day period.
3. Customer may terminate any Order Form at any time, however termination pursuant to this Section 9c shall not result in any refund of payments made to Lumavate, but only results in the termination of automatic renewals and any future payments caused by such automatic renewals no longer being due to Lumavate.
4. In the event of termination of the SaaS Term for material breach, Customer’s access and use of Lumavate Services and Customer’s rights under this Agreement shall cease immediately upon termination.
5. In the event of termination of the SaaS Term pursuant to Section 9C, Customer’s access and use of Lumavate Services and Customer’s rights under this Agreement shall cease at the end of the current SaaS Term.

11. PUBLICITY

Customer hereby agrees, subject to Customer’s review and approval, which approval shall not be unreasonably withheld or delayed, to: (a) allow Lumavate to use Customer’s name and logo in Lumavate’s customer list, on Lumavate’s web site, and in Lumavate’s marketing materials; and (b) allow Lumavate to reference Customer in a press release that announces Customer’s decision to use Lumavate Services.

12. FORCE MAJEURE

Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control which makes performance commercially impractical. NOTICES Notice to the other party to this Agreement shall be in writing and shall be deemed received at the earlier of: (a) when received, if hand delivered; (b) five (5) days after being mailed by U. S. Postal Service, postage prepaid; (c) one (1) business day if sent via overnight courier service (either Federal Express, Express Mail or equivalent); or (d) upon confirmed transmission if sent by facsimile. Notices to Lumavate shall be sent to:

Lumavate; 550 Congressional Blvd, Suite 140, Carmel, IN 46032; Attention: Legal Dept., and any notice to Customer hereunder shall be sent to the address on an Order Form.

13. ASSIGNMENT

Neither party may assign, transfer, or delegate any of its rights, duties or obligations hereunder, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in whole or in part, in connection with a merger where the contracting entity does not survive such merger, or in connection with the sale of all or substantially all of the contracting entity’s assets related thereto.

14. GENERAL

This Agreement shall be governed by the laws of the State of Indiana. This Agreement and any exhibits or order forms hereto constitute the entire understanding between the parties with respect to the subject matter hereof. No provision of this Agreement found to be illegal, unenforceable, or invalid shall affect the legality, enforceability, or validity of any other provision(s) of this Agreement, all of which shall remain in full force and effect. Customer authorizes Lumavate to enter into contracts with subcontractors and other third parties to carry out Lumavate’s obligations under this Agreement. In all matters relating to this Agreement, Customer and Lumavate shall act as independent contractors. Except as specified herein, neither party shall represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.

EXHIBIT A

SERVICE LEVEL AGREEMENT

AVAILABILITY

Lumavate shall use commercially reasonable efforts to make Services generally available twenty four (24) hours a day, seven (7) days a week at a rate of 98% uptime, (“Uptime Commitment”) except for: (i) planned downtime, which shall be any period for which Lumavate gives eight (8) hours or more notice that the Services will be unavailable; (ii) any unavailability caused by circumstances beyond Lumavate’s reasonable control, including without limitation, computer or telecommunications failure or delays involving hardware or software not within Lumavate’s possession or reasonable control, and network intrusions or denial of service attacks; (iii) any period of unavailability lasting fifteen (15) minutes or less; (iv) a disruption in the connection between the server on which Services is located based on a failure of the Customer’s connection to the public Internet or a general failure of the public Internet not related specifically to Services’s infrastructure; and (v) time the server is unavailable due to unavailability resulting from the improper use of Services by Customer. If Lumavate fails to meet the Uptime Commitment for two (2) consecutive calendar months or fails to meet the Uptime Commitment for any three (3) calendar months within any twelve (12) month period, then by notice given within thirty (30) days after the end of the month which triggered Customer’s right of termination, Customer may terminate this Agreement, and receive a refund of any pre-paid fees for periods after the effective date of termination. The provisions of this SLA state Customers sole and exclusive remedy for any service level deficiencies of any kind.

SUPPORT

Lumavate will use commercially reasonable efforts to provide Lumavate Services support to Customer comprised of (i) on-line access to the Lumavate support customersuccess@lumavate.com; and (ii) Lumavate’s telephone support (317) 688-1068.  Lumavate will use commercially reasonable efforts to respond to Customer’s inability to access the Lumavate Services or a component of the Lumavate Services which had previously performed as expected (“Problem”) within the guidelines laid out in the full “Lumavate Service Level Agreement” (provided to Customer during the Lumavate Services implementation period and resent to Customer periodically as updates to the “Lumavate Service Level Agreement” occur.)