1. Overview of Services.

a. Delaget provides its Services using its proprietary web-based platform of technology and software.

b. The defined term “Client” in this Agreement refers either the operator of a business who uses Delaget Services to assist in its operations, or the third party vendor who uses Delaget’s Data Services to access Client Data of such operators  in order to provide additional services to them.

c. In order to receive Services, if Client is an operator of a business,  Client must provide and/or allow Delaget to access or “poll” certain information and data (“Client Data”) from Client’s systems and otherwise provided by Client. If Client is a third party vendor who will access Client Data in order to provide additional services to the operator, such third party vendor Client must also establish a transfer mechanism with Delaget in order to receive extracts of Client Data from agreed sources.

d. The specific details of the Services are as specified in the applicable Order Form.

2. Fees/Payment Terms.

a. Client will pay to Delaget the fees presented in the applicable Order Form, as well as reasonable travel-related out-of-pocket expenses associated with professional services which are approved in advance by Client. All fees are shown in U.S. Dollars and all payments will be made in U.S. Dollars.

b. Fees for Services will be invoiced and are due in advance of each billing period as set forth in the Order Form.  All fees must be paid by Client either by credit card (click here to set up credit card payments), or Automated Clearing House (“ACH”) (click here to set up ACH payments) as specified in the Order Form.

c. All amounts not paid within ten (10) days from when due are subject to a late payment charge of 1% per month (not to exceed the maximum allowed by law) of the past due amount from the due date until the date paid. Client will reimburse Delaget for all reasonable expenses Delaget may incur, including reasonable attorney fees, in collecting any amounts past due under this Agreement. Client’s access to the Services may be suspended if Client has not made timely payment. Delaget may impose a fee for restoration of any suspended accounts.

d. Client will pay any applicable sales, use or other similar taxes for the Services provided by Delaget pursuant to this Agreement, exclusive of taxes based on Delaget’s net income.

e. In the event Delaget is required to provide information relating to Client’s use of the Services, including any Client Data, to a third party pursuant to a subpoena, governmental demand, or other lawful compelled disclosure of information, Client agrees that it will pay reasonable costs and fees incurred by Delaget in responding to such subpoena, demand, or disclosure.

3. Access; Use.

a. Subject to Client’s compliance with this Agreement, Delaget hereby grants to Client the right to access and use the Services (and the associated technology and software) during the term of any subscription under an Order Form solely for its internal business purposes and only in accordance with Delaget’s applicable user documentation (or other Delaget-provided written instructions). Client will use the Services only in compliance with the rights granted hereunder and in accordance with all applicable laws and regulations.

b. Operator Clients may use the Services to create reports for all units for which Client receives Services. Client may make a reasonable number of copies of such reports as necessary for its business operations.

c. The Services may include features that are intended to be accessed by Client’s employees, contractors and agents, as well as private features, such as reporting tools, that are intended to be used only by a limited subset of administrative users who will oversee Client’s internal use (collectively “End Users”). Client is responsible for the actions of all of its End Users and anyone else who accesses the Services through Client, including failure of any of them to abide by any user rules or terms which may be published on the login page of the Services. Client may be asked to provide certain information, including but not limited to identification information, for End Users.  Client must provide accurate, complete and current information.

d. Client will not use the Services in a manner that violates the privacy, personal, proprietary, or contractual rights of third parties. Client will comply with all applicable laws and regulations regarding use of the Services.  In the event the Services include third party materials, Client also must comply with the applicable third party terms of use presented to Client at the time of the subscription.

4. Support Services.

a. Client’s subscription   automatically includes updates to the Services to address any service errors, patches or fixes which may be provided by Delaget  at no charge from time to time in its sole discretion. Additional features and functionality may be available from time to time for an additional fee.

b. Delaget will take reasonable steps to ensure that the Services are available  24 hours per day, 7 days per week, with the exception of scheduled maintenance or with advance notification for system upgrades. However, Client acknowledges that Delaget cannot guarantee the availability of the Services.   In no event will Delaget have any liability for refund or other claims relating to unavailability of the Services.

c. Delaget will provide support for the Services as set forth in Exhibit A, and as otherwise described in its implementation and support policies from time to time. Client acknowledges and agrees that the Services do not include any technical services or support associated with Client’s computer network or systems, or support for any third party systems including hosting, connectivity, third party data sources, or other third party systems used in or which create dependencies in the Services.

5. Protecting the Integrity of the Services/Restrictions.

a. Client must maintain its computer systems, and ensure the presence and continued operation of the web browsers, network infrastructure and internet service necessary to access the Services. Client must comply with any requirements regarding use of the Services, including hardware and connectively requirements, data access or data polling, set forth in Delaget’s standard policies and any documentation accompanying the Services. If the Services fail to operate, it is Client’s responsibility to notify Delaget of such failure immediately.  Client will not: (i) use the Services to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Services  or the data contained therein; or (iii) attempt to gain unauthorized access to the Services or related systems or networks.

b. Client may not reproduce, copy or make any unauthorized use of any aspect of the Delaget Services (including any technology or software comprising the Services), or any other service of Delaget, except as expressly set forth herein.

c. Client will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting Client’s end users as part of the purpose contemplated in this Agreement); (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to create any other product or service; or (vii) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

6. Proprietary Rights.

a. The Services and all software and technology incorporated in or used in connection with the provision of the Services (whether proprietary to Delaget or licensed to Delaget by a third party), and all content, reports, templates, images, and any results of professional services, as well as the “Delaget” name and logo (collectively, the “Delaget Intellectual Property”),  and all good will associated therewith, will at all times remain the exclusive, sole and absolute property of Delaget or its third party licensors. Delaget also retains all rights, title, interest, ownership and proprietary rights in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the Services (other than Client Data) and Client agrees to assign and hereby assigns to Delaget any rights therein. Except for the rights granted to Client in this Agreement, Client will have no interest in the Delaget Intellectual Property. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patent, and any other proprietary right relating to the Delaget Intellectual Property and the related logos, service names, etc. are reserved and all rights not expressly granted are reserved by Delaget and such third parties. Client may not obscure, alter or remove any copyright, trademark, service mark or proprietary rights notices on any of Delaget’s Services.

b. The Client Data and any Client name or logo (collectively the “Client Intellectual Property”) provided to Delaget for the provision of Services will at all times remain the exclusive, sole and absolute property of Client. Client hereby grants to Delaget a license to use the Client Intellectual Property to provide the Services and as otherwise agreed in an Order Form.  Client represents and warrants that it has the rights to make Client Data available to Delaget for use as authorized hereunder. Client will cooperate with Delaget and represents and warrants that Client has all necessary rights to allow Delaget to access any third party systems on Client’s behalf as necessary to develop interfaces with the Services.

c. Client is responsible for making and retaining any copies of any reports or Client Data it may need for back up or other purposes. The Services are not intended to be a system of record for Client Data, and Delaget will have no obligation to maintain Client Data in any particular format. Client may request a copy of the then- current Client Data held by Delaget at termination of the Agreement, at Client’s expense, in a format agreed by Delaget.

7. Intellectual Property Indemnification; Limitation of Liability; Disclaimer of Warranties.

a. Subject to the remainder of this Section, Delaget shall defend Client in any suit or cause of action, and indemnify and hold Client harmless against any damages payable to any third party in any such suit or cause of action, alleging that the Services as used in accordance with this Agreement infringe any U.S. patent, copyright, trade secret or other proprietary right of any third party. The foregoing obligations of Delaget are subject to the following requirements: Client shall take all reasonable steps to mitigate any potential damages which may result; Client shall promptly notify Delaget of any and all such suits and causes of action; Delaget shall control any negotiations or defense of such suits and causes of action; and Client shall assist as reasonably required by Delaget. The foregoing obligations of Delaget do not apply to the extent that the infringing Service or portions or components thereof or modifications thereto were not supplied or directed by Delaget, or were combined with other products, services, processes or materials not supplied or directed by Delaget (where the alleged infringement relates to such combination).

b. If Delaget believes that a Service may be subject to any claim of infringement, then Delaget may, and if Client’s use of the Service is held to infringe and its use is enjoined, then Delaget will, at Delaget’s own expense, procure for Client the right to continue using the Service, replace the Service with a non-infringing Service, or modify the Service so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for Delaget, then Delaget may terminate Client’s rights to access and use the Services, in which case Delaget will refund Client a pro rata amount of any prepaid Service fees for the unutilized portion of the terminated Services in the applicable Term. This is Client’s sole remedy for claims of infringement.

c. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY (NOR ANY OF DELAGET’S VENDORS OR THIRD PARTY LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING LOSSES RESULTING FROM LOSS, MISAPPROPRIATION OR UNAUTHORIZED ACCESS TO OR MODIFICATION OF CLIENT DATA, OR FROM MISTAKES, OMISSIONS, OR DELAYS IN TRANSMISSION OF INFORMATION, OR FROM INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SERVICES, VIRUSES OR FAILURES OF PERFORMANCE, OR FROM THE IMPACT OF THE SERVICES ON ANY SYSTEM, EVEN IF DELAGET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY AND REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; THIS SECTION IS INTENDED TO, AND DOES, LIMIT THE INDEMNIFICATION RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT. The foregoing limitations will apply even if the remedy fails of its essential purpose.  Delaget reserves the right to deliver a modified version of the Service, or alternate service that has comparable features, at any time, and Client agrees to accept such modified or alternate Service

d. Notwithstanding anything to the contrary in this Agreement, the aggregate liability of Delaget under or related to this Agreement for damages (monetary or otherwise) under any circumstances for claims of any type or character arising from or related to the Services will be limited in each instance to the amount of actual direct damages incurred by Client; provided, however, in all events, Delaget’s aggregate liability hereunder will not exceed an amount equal to the prior twelve (12) months’ Service fees actually paid.

e. Client acknowledges and agrees that the Services are not designed and cannot be relied upon to disclose fraudulent financial reporting, misappropriation of assets or illegal acts by Client or its employees, should any exist. Client has the responsibility for the safeguarding of its assets and for ensuring compliance with the laws and regulations applicable to its activities.

f. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND DELAGET EXPRESSLY DISCLAIMS ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERRUPTION OF USE, FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE SERVICES. DELAGET FURTHER DISCLAIMS ANY WARRANTY REGARDING ANY THIRD PARTY MATERIALS, SOFTWARE OR TECHNOLOGY IN THE SERVICES, AND DISCLAIMS ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE ACCURACY OF ANY DATA PROVIDED AS A RESULT OF USE OF THE SERVICES. NO OTHER ORAL OR WRITTEN ADVICE GIVEN BY DELAGET WILL CREATE A WARRANTY REGARDING THE SERVICES.

8. Term and Termination of Agreement.

a. The initial term of this Agreement (“Initial Term”) shall be as set forth in the Order Form. For clarity, each Order Form, together with the current version of this Agreement, creates a separate contract between Client and Delaget, and therefore Client may have multiple contracts in effect with Delaget at any time. Each will be treated as an independent contract.  Upon expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year terms  (each a “Renewal Term”), unless sooner terminated in accordance with subsection (b) below.  Collectively, the Initial Term and the Renewal Terms constitute the “Term.”  Delaget may adjust the fees for Renewal Terms for the Services described in any Order Form by notice in advance of renewal.

b. This Agreement may be terminated as follows:

i. by either party effective upon expiration of the then current Term by providing the other party prior written notice of termination at least ninety (90) days in advance.

ii. by either party at any time by delivery of written notice to the other party if the other party breaches any of the terms of this Agreement; provided, however, if the breach is curable, such termination shall not be effective unless and until such breach remains uncured for a period of thirty (30) days ( or ten (10) days in the case of non-payment) after delivery of such written notice.

iii. by either party effective immediately upon delivery of written notice to the other party if the other party (A) ceases to actively conduct its business, (B) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (C) makes a general assignment for the benefit of its creditors, or (D) applies for the appointment of a receiver or trustee for substantially all of its property or assets or permits the appointment of any such receiver or trustee who is not discharged within thirty (30) days of such appointment.

iv. by the mutual written agreement of the parties.

c. Upon the expiration or termination of this Agreement or any Service for any reason,

i. all rights granted to Client under the terms of this Agreement or in connection with any terminated Services, will become null and void; and

ii. all earned and unpaid fees and expenses will become immediately due and payable.

9. Confidentiality.

a. “Confidential Information” means all information that is confidential or proprietary provided by the disclosing party to the receiving party for use in connection with the Services, including all trade secrets, processes, proprietary data, information or documentation or any pricing, product or service information the disclosing party provides to the receiving party. However, Confidential Information does not include:

i. information the receiving party already knows,

ii. information that becomes generally available to the public except as a result of disclosure by the receiving party in violation of this Agreement,

iii. information that becomes known to the receiving party from a source other than the disclosing party on a non-confidential basis,

iv. information that has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information,

v. information that is Aggregate Data (as defined below).

b. All Confidential Information disclosed under this Agreement will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion, and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own Confidential Information. The receiving party will limit access to Confidential Information to its employees with a need to know the Confidential Information and will instruct those employees to keep the information confidential. It is understood, however, that Delaget may disclose the Client’s Confidential Information on a need to know basis to its subcontractors and vendors, (provided such subcontractors and vendors agree to hold such information confidential to at least the same degree as set forth herein). Notwithstanding the foregoing, the receiving party may disclose Confidential Information:

i. to the extent necessary to comply with any law, rule, regulation or ruling applicable to it,

ii. as appropriate to respond to any summons or subpoena or in connection with any litigation, and

iii. to the extent necessary to enforce its rights under this Agreement.

c. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession, with the exception of electronic copies retained as part of ordinary course computer system back-up processes, or as necessary to enforce rights hereunder, and as otherwise set forth in Delaget’s Data Policy (and for clarity, nothing herein will create an obligation for Delaget to provide Client a copy of the Client Data provided by Client or generated through use of the Services).

10. Aggregate and De-identify Data. Delaget shall have the right to create compilations and analyses of Client Data and results (“Aggregate Data”) and to create reports, studies, statistical analyses, and other work product from Aggregate Data. Delaget shall also have the right to de-identify Client Data so that it cannot reasonably identify, relate to, describe or be linked directly or indirectly with a particular individual (“De-identified Data”). Delaget shall have exclusive ownership rights to, and the exclusive right to use such Aggregate Data and analyses (but not the underlying Client Data) or De-identified Data; provided, however, that Delaget shall not distribute Aggregate Data and analyses or De-identified Data in a manner that is identifiable as Client Data or in a manner in which the identity of any individual client or person can be reasonably ascertained.

11. Relationship of the Parties. Each party is an independent contractor in the performance of each and every part of this Agreement, and is solely responsible for all of its employees, agents, labor costs, and expenses arising in connection therewith.

12. Governing Law; Venue. This Agreement shall be governed by the laws of the State of Minnesota without giving effect to any choice of law principles which might provide for application of a different jurisdiction’s law. Any claim or action brought by one of the parties hereto in connection with this Agreement shall be brought in the appropriate Federal or State court located in Hennepin County, Minnesota.

13. Notices. Any notice required or permitted under the terms of this Agreement or required by law shall be in writing and shall be delivered in person, or sent by certified mail properly posted and fully prepaid in an envelope properly addressed or by recognized overnight courier to the respective parties as follows:

a. To Client: at the address set forth in the Order Form

b: To Delaget:
Delaget, LLC
5320 West 23rd Street,Suite 140
St Louis Park, MN 55416
Attn: CEO

or such other address as either party may be notified of by the other party. Any such notice shall be considered to have been given at the time of actual delivery or upon being marked rejected or undeliverable if properly addressed.

14. Entire Agreement.This Agreement constitutes the entire agreement between the parties. No prior agreements or understanding pertaining to the same shall be valid or of any force or effect, and the terms of this Agreement shall not be altered or modified except in writing signed by both parties. There shall be no force or effect given to any Client standard terms of purchase (including purchase order terms).

15. Assignment. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates (or in Client’s case, with respect to any units that Client sells to a successor who agrees to assume Client’s obligations hereunder, and Delaget may assign this Agreement to a successor who assumes the operations of the business related to the Order Form to which this Agreement relates.

16. Severability. Each covenant of this Agreement shall be deemed and shall be construed as a separate and independent covenant, and should any court of competent jurisdiction declare any part or provision of any such covenant invalid, such invalidity shall in no way render invalid or unenforceable any other part or provision thereof.

17. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

18. Force Majeure. Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement (other than timely payment of fees)  to the extent such delay or failure in performance of any part of this Agreement is caused by fire, flood, explosion, war, labor dispute, embargo, government requirements, civil or military authority, act of God, act or omission of transportation companies or other causes (whether similar or dissimilar to those enumerated above) beyond its reasonable control (“force majeure conditions”); however, any party so excused from performance shall use its best efforts to remove the cause of any such force majeure condition(s) to the extent it is able to do so.

19. No Third Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries under this Agreement. Client agrees that other than Delaget’s obligation to Client in this Agreement, Delaget has no obligation to any third party (including, without limitation, Client’s employees and/or taxing authorities) by virtue of this Agreement.

20. Survival. All provisions of this Agreement that by their terms or by logical application appear to have an effect or an intended effect beyond the termination of this Agreement shall survive such termination.

21. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

22. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.

23. Order of Precedence. In the event of any conflict between (i) the Terms of this Agreement and (ii) any Order Form, schedule, exhibit, attachment, appendix, amendment, or other underlying document hereto,  this Agreement shall control, except to the extent that any Order Form, schedule, exhibit, attachment, appendix, amendment, or other underlying document expressly identifies terms of this Agreement intended to be overridden and provides that it controls in the event of any such conflict.

1. Delaget Service Delivery Responsibilities.

a. Delaget will maintain the organization, equipment, technology, and processes necessary to provide technical support to Client for its use of the Services

b. Delaget will host, operate, and secure the central equipment at Delaget’s (or its third party vendor’s) hosting facility, and will provide necessary security, backup, archiving and recovery of Client Data hosted in conjunction with the Services.

c. Delaget will provide support by telephone or via the Internet during normal business hours.

2. Exclusions. Support Services will not include (i) on-site support; (ii) issues caused by Client’s negligence or fault; (iii) issues resulting from hardware malfunction or failures in third party systems; (iv) issues that do not materially impair or affect Client’s use of the Services (v) support for access to the Services from Client systems that do not meet current recommendations from Delaget; and (vii) support for software other than Delaget’s proprietary software, or for any combination of the Services and other third party systems and software not covered by this Agreement. For Data Services, Support Services also will not include (i) support for issues caused by operator Clients’ or their vendors’ systems or data. When Delaget reasonably believes that a reported problem is likely to fall outside of the scope of support provided under this Agreement, Client will be so advised. Delaget will bill Client on a time and materials basis unless Client and Delaget subsequently find that the problem was within the scope of support under this Agreement.

3. Client Service Delivery Responsibilities. Client will maintain and regularly provide to Delaget a list of qualified end users, their passwords, and their respective organizational roles so that end users may be given access to the appropriate Services either directly or through a “single sign-on” interface embedded in Client’s own applications. During the Term of the Agreement, Client shall: (a) cooperate at its own expense with Delaget to facilitate the efficient performance of the Services; (b) if an Operator Client, take responsibility for the data polling software and processes used to transfer Client data to Delaget, including diagnosis, troubleshooting and corrective actions required to ensure data transfer; and (c) provide end-user equipment, software, Internet access and configuration as described by Delaget.

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