VueLab

STANDARD TERMS AND CONDITIONS

A party signing, or approving online (the “Client”) a Service Order, as defined below, that references these Standard Terms and Conditions (together, with a Service Order and any applicable exhibits or addendums, the “Agreement”), agrees to and accepts that these binding standard terms and conditions shall apply to the Client and VueLab, Inc., a New York corporation, dba NuVue (“VueLab”)

1  Definitions

1.1        “Affiliate” means any other persons that directly or indirectly through one or more intermediaries, control, are controlled by, or are under common control with, either of the Parties. The term “persons” will be broadly interpreted to mean any individual or entity whatsoever.

1.2        “Authorized User” means an individual employee or agent of Client (or of an Affiliate of Client) who has been authorized by the Client, will be paid for by Client pursuant to the applicable Service Order and this Agreement, and is assigned a unique username-password combination to access and use the VueLab Platform. The rights of Authorized Users are solely those expressly granted to Client pursuant to Section 2. Conduct by any and all Authorized Users of Client or of Client’s Affiliates shall be treated as the conduct of the Client for purposes of Client’s obligations pursuant to this Agreement.

1.3        “Client Data” means any data, files, text, graphics, images, software, works of authorship of any kind, and information or other materials that Client or its Affiliates directly, or indirectly, transmits to, uploads to, transfers to, processes on, stores in, creates on, or causes to interface with, Client’s and/or Authorized User’s Account(s) or the VueLab Platform. Client Data includes Client Slide Information. Client Data does not include any VueLab Materials.

1.4        “Client Slide Information” means data located on a Slide that is specific and proprietary to Client, including Client’s company metrics, pricing, products, and services.

1.5        “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, provided that Client’s Confidential Information will not include Client Data, which shall be subject to the other provisions of this Agreement and the Privacy Policy as described in Section 9; VueLab’s Confidential Information will include the VueLab Materials; and Confidential Information of each Party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information will not include any information that (i) is, or becomes, generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to any disclosure by the Disclosing Party.

1.6        “Privacy Policy” means VueLab’s privacy policy related to use of the VueLab Platform accessible at https://hellonuvue.com/privacy-policy/.

1.7        “Service Order” means the service order(s) Client and VueLab from time to time execute that sets forth the number of Authorized Users purchased, fees schedule, Subscription Period (as defined in Section 5) and other relevant terms. Each Service Order that expressly refers to this Agreement will form part of this Agreement and will be subject to the terms and conditions contained herein.

1.8        “Service Order Start Date” means the date specified as the Service Order State Date in the applicable Service Order.

1.9        “Services” means the services may be performed by VueLab under this Agreement as set forth on an applicable Service Order or statement of work.

1.10     “Slide(s)” means one or more visual tools created as part of the VueLab Platforms presentation suite that Client will use to present to its respective audiences.

1.11     “VueLab Materials” means the VueLab Platform, any software programs, tools, utilities, processes, flowcharts, templates, inventions, devices, methodologies, specifications, documentation, techniques, Slides (except for Client Slide Information), and materials of any kind used or developed by VueLab or its personnel in connection with providing the VueLab Platform and related services.

1.12     “VueLab Platform” means VueLab Software Suite and related services, as improved and updated by VueLab from time to time.

1.13     “VueLab Software Suite” means VueLab product(s) listed in an applicable Service Order.

2       Rights to Use the VueLab Platform. Subject to Client’s compliance with this Agreement, VueLab grants Client a limited, non-exclusive, non-transferable, revocable license during the Subscription Period to access and use the VueLab Platform via VueLab’s cloud-based services (subject to Client’s having a valid Account as described in Section 6 below), solely for Client’s internal business use. Such access and use is expressly limited to the number of Authorized Users set forth the applicable Service Order. Client’s rights in the VueLab Platform will be limited to those expressly granted in this Section 2. VueLab and its licensors reserve all rights and licenses in and to the VueLab Platform not expressly granted to Client under this Agreement.

3        Prohibitions and Use Policies.

3.1        Client acknowledges that the VueLab Platform contains trade secrets of VueLab and its licensors, and, in order to protect such trade secrets and other interests that VueLab and its licensors may have in the VueLab Platform, Client may not, and Client agrees not to, reverse engineer, decompile or disassemble the VueLab Platform.

3.2        In addition, Client may not, and Client agrees not to: (i) sell or sublicense the VueLab Platform; (ii) modify the VueLab Platform; (iii) distribute or copy the VueLab Platform in whole or in part; (iv) use the VueLab Platform in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or VueLab’s applicable documentation that may be provided to Client from time to time; (v) access or use any areas of the VueLab Platform for which VueLab has not granted Client authorization, or tamper or interfere with VueLab’s computer systems or the technical delivery systems of VueLab’s providers; or (vi) encourage, authorize, or enable anyone to do any of the foregoing.

3.3        Client acknowledges and agrees that VueLab is not required to monitor or police communications or data transmitted through the VueLab Platform and that VueLab shall not be responsible for the content of any such communications or transmissions. Client shall use the VueLab Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Client shall keep confidential and not disclose to any third-parties and shall ensure that Authorized Users keep confidential and do not disclose to any third-parties, any user identifications, account numbers or account profiles.

4        Subscription; Payment.

4.1        By subscribing to the VueLab Platform, Client agrees to pay VueLab the fees set forth in each applicable Service Order.

4.2        Unless payment terms are modified by the Service Order, VueLab will issue Client an invoice at the Service Order Start Date for an annual in-advance payment of Total First Year Service Order Fees as reflected in the Service Order. Unless modified by the Service Order, additional Annual License Fees shall be due on each yearly anniversary of the Service Order Start Date for each additional year of the Term. Additionally, unless modified by the Service Order, VueLab will issue Client an invoice at the end of each quarter during the Subscription Period for which any additional fee is due by virtue of Client exceeding the number of Minimum Authorized Users permitted in the applicable Service Order (“Monthly Recurring Fee”), at the list price per user per Month then in effect for VueLab (unless a different price is expressly stated in the applicable Service Order, in which case, the price in the Service Order shall control) during any month that any such Monthly Recurring Fee is due. Upon renewal of a Service Order, Client’s then-current Authorized Users count will become the amount of Minimum Authorized Users in the new Service Order, provided that Client’s then-current Authorized Users count is greater than the expiring Service Order’s Minimum Authorized Users. All fees are payable and due within thirty (30) days after the date of any invoice. For clarity, in the event of any conflict between the terms of this Section 4.2 and any Service Order, the Service Order terms will control.

4.3        Client agrees to pay all fees applicable to Client’s subscription as set forth in the applicable Service Order, or otherwise in accordance with VueLab’s prices that are in effect at the time of Client’s order or the time of subscription renewal. In the event of any conflict between the terms of this Section 4.3 and the Service Order, the Service Order terms will control. All stated fees are exclusive of taxes or duties of any kind. Client will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Client’s use of the VueLab Platform, except for taxes based on VueLab’s net income. If VueLab is required to collect any tax for which Client is responsible, Client agrees to pay such tax directly to VueLab. All past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less.

5         Term and Termination.

5.1        This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect until the completion of the Service Order Term Length set forth in the applicable Service Order (the “Initial Subscription Period”). Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless one Party provides written notice to the other Party at least thirty (30) days in advance of the expiration of the then-existing Subscription Period that it does not wish to renew this Agreement. The Initial Subscription Period and any subsequent renewal term(s) shall each be referred to as the “Subscription Period.” The pricing and related terms applicable during any renewed Subscription Period will be as set forth in the new Service Order. Either Party may terminate this Agreement (including any Service Order then in effect) if the other Party breaches any material term of this Agreement or Service Order and fails to cure such breach within thirty (30) days after receipt of a written notice thereof. For clarity, failure to pay any undisputed fees under Section 4 for sixty (60) days after invoicing shall be considered a material breach of this Agreement.

5.2        VueLab may suspend Client’s Account (including any individual Authorized User’s Account) and Client’s use of the VueLab Platform as VueLab deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the VueLab Platform or upon Client’s material breach of this Agreement. Upon the expiration or termination of this Agreement, Client will, within thirty (30) days after receipt of VueLab’s invoice, pay all accrued and unpaid fees. Upon termination or expiration of this Agreement, each Party’s rights and obligations with respect to fees payable hereunder, in accordance with Section 4 of this Agreement, and such other provisions that by their nature are intended to survive termination, shall so survive the termination of this Agreement.

6         Account. In order to access and use the VueLab Platform, Client will need to register and create an account (“Account”). Client agrees to provide accurate, current and complete information about the Client Account, which includes all individual Authorized User Accounts. VueLab reserves the right to suspend or terminate the Client Account or any individual Authorized User’s Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false, or misleading. Client is responsible for maintaining the confidentiality of Client’s passwords and Account, including all usernames and passwords information assigned to its Authorized Users, and agrees to notify VueLab if any of the passwords is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Client is responsible for all activities that occur under the Client Account, including the activities carried out by Client’s individual employees or contractors.

7         Data Rights; Ownership.

7.1        VueLab does not claim any ownership rights in Client Data. Nothing in this Agreement will be deemed to restrict any rights that Client may have to use and exploit Client Data. Client hereby grants to VueLab a non-exclusive, worldwide license to use, reproduce and transfer Client Data solely in connection with Client’s use of the VueLab Platform and VueLab’s provision of the VueLab Platform to Client. Client represents and warrants that Client or Client’s licensors own all right, title and interest in and to Client Data and that Client has all rights in Client Data necessary and sufficient to transmit to, upload to, transfer to, process on, store in, or cause to interface with, Client’s Account or the VueLab Platform, and to grant the rights contemplated by this Agreement. Client is solely responsible for the content of all the Client Data as provided to VueLab, for Client’s development, transmission, operation, maintenance, storage, and use of Client Data.

7.2        Client consents to VueLab’s internal access, collection, transmission, storage, copying, processing, analysis and use of Client Data (i) to administer the VueLab Platform and to monitor compliance with this Agreement and (ii) solely in anonymized and aggregated format and without the use of any personally identifiable information, for research and development purposes related to the VueLab Platform and related services.

7.3        VueLab maintains the right, title, and interest in and to any data or information regarding the use or optimizing the use or sale of the VueLab Platform, so long as such data does not include Client Data.

7.4        VueLab and its licensors reserve sole and exclusive ownership of VueLab Materials, and all copyrights, patents, trademarks, and other intellectual property rights therein. VueLab Materials do not include Client Data. Client may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the VueLab Platform. If Client provides VueLab with any suggestions, comments, or other feedback regarding the VueLab Platform (“Feedback”), Client acknowledges that VueLab will be the sole owner of Feedback and may use (or not use) the Feedback in any manner and for any purpose, without compensation to Client and without implying or creating any interest on Client’s part in any of VueLab’s products or services that may be based on the Feedback. Notwithstanding the foregoing, Feedback shall not include Client Data. Nothing in this Agreement or any Service Order or statement of work shall be construed, whether by implication, estoppel or otherwise, as transferring or as obligating any Party to transfer ownership of any intellectual property rights to the other Party; and (ii) each Party reserves all rights in its own intellectual property rights other than the licenses expressly granted herein.

8         Data Maintenance and Backup Procedures; Confidentiality.

8.1        Data Maintenance. VueLab will follow its internal archival procedures for Client Data, including daily backups of all Client Data provided to VueLab by Client at any time during the Subscription Period. In the event of any loss or corruption of Client Data, VueLab will use commercially reasonable efforts to restore the lost or corrupted Client Data from the latest backup of such Client Data maintained by VueLab. VueLab shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Client Data caused by any third-party.

8.2        Confidentiality. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its affiliates and its representatives, including legal counsel, financiers, and accountants without the other party’s prior written consent. Without limiting the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

8.3        VueLab will promptly inform Client of any known or reasonably suspected security breach or unauthorized disclosure of the Client Data, personal information, or Confidential Information (“Security Event”). If there is a Security Event, VueLab shall (i) take all reasonable steps to mitigate any potential damages; and (ii) promptly respond to reasonable security-related inquiries from Client and take all reasonable steps to identify, investigate, and resolve applicable security issues on a timely basis commensurate with the level of risk involved.

9         Privacy Policy. VueLab’s Privacy Policy is incorporated herein for all purposes and each Party agrees to the provisions contained therein. If any portion of these Standard Terms and Conditions conflicts with any portion of the Privacy Policy, these Standard Terms and Conditions shall govern for all purposes.

10      Warranty; Disclaimers.

10.1     VueLab represents and warrants that the VueLab Platform, as provided by VueLab, will be free from material defects during the Subscription Period. In order to be entitled to any remedy based on a purported breach of the foregoing representation and warranty, Client must inform VueLab of the purported deficiency in the VueLab Platform’s functionality within thirty (30) days of the day on which Client becomes aware of the condition giving rise to such claim. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE VUELAB PLATFORM IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. VueLab makes no warranty that the VueLab Platform will meet Client’s requirements or be available on an uninterrupted, secure, or error-free basis. VueLab also represents and warrants that any Services provided under this Agreement shall be performed in a professional and workmanlike manner.

10.2     EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, VUELAB EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, FROM ANY SOURCE, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

10.3     Client assumes sole responsibility and liability for Client’s and Client’s Authorized Users’ use of any output and/or results obtained from the use of the VueLab Platform and for conclusions drawn from such use. VueLab shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to VueLab by Client in connection with the VueLab Platform or any actions taken by VueLab at Client’s direction that are consistent with such direction. Other than third-party products, services, software or web sites provided by VueLab to facilitate performance of the Services, VueLab shall have no liability for any claims, losses or damages arising out of or in connection with Client’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the VueLab Platform.

11      Indemnity.

11.1     Client will indemnify, defend and hold harmless VueLab and its officers, directors, employees and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including without limitation legal and professional fees, arising out of or in any way connected with (i) Client’s access to or use of the VueLab Platform other than in accordance with this Agreement, or (ii) the Client Data as provided to VueLab, provided that VueLab: (a) promptly notifies Client in writing of the claim; (b) grants Client sole control of the defense and settlement of the claim; and (c) provides Client, at Client’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

12      Limitation of Liability.

EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 3 OR FROM INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, EITHER PARTY’S TOTAL LIABILITY TO THE OTHER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY (WHETHER UNDER WARRANTY, CONTRACT, TORT OR OTHERWISE) WILL BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNTS PAID AND PAYABLE TO VUELAB BY CLIENT FOR THE VUELAB PLATFORM IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM CLIENT’S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE VUELAB PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

13      Maintenance and Support.

13.1     VueLab will provide Client with maintenance and support services for the VueLab Platform, in accordance with and subject to the service level agreement set forth in the “Service Level Agreement” (or “SLA”) in effect as of the Agreement Effective Date attached as an Exhibit to the Agreement.

13.2     VueLab will have no obligation of any kind to provide support of any kind for problems in the operation or performance of the VueLab Platform to the extent caused by any of the following: (i) non-VueLab software or hardware products or use of the VueLab Platform in conjunction therewith; or (ii) Client’s use of the VueLab Platform other than as authorized in this Agreement. If VueLab determines that it is necessary to perform maintenance services for a problem in the operation or performance of the VueLab Platform that is caused by either of the above problems, then VueLab will notify Client and have the right to invoice Client for all such maintenance services performed by VueLab and approved by Client.

14      Export Control. Client agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the VueLab Platform, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.

15      Dispute Resolution.

15.1     This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of law provisions. Client and VueLab irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in Westchester County, New York for any disputes arising under this Agreement, provided that the foregoing submission to jurisdiction and venue shall in no way limit the obligation to arbitrate disputes set forth in Section 15.2.

15.2     Except for actions (i) to protect a party’s intellectual property rights, (ii) and to enforce an arbitrator’s decision hereunder and (iii) that are subject to the arbitration provisions set forth in the Privacy and Security Policy with respect to Privacy Shield-related complaints, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, or such applicable substantially equivalent rules as the AAA may adopt that are then in effect (the “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA Rules. The arbitration shall be conducted in Westchester County, New York. The arbitrator shall apply the laws of the State of New York to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the Federal Arbitration Act.

16      General.

16.1     Assignment. Neither party may assign this Agreement without the other party’s prior written consent and any attempt to do so will be void, except that either party may assign this Agreement, without the other party’s consent, to a successor or acquirer, as the case may be, in connection with a merger, acquisition, sale of all or substantially all of such party’s assets or substantially similar transaction, provided, however, that Client may not assign this Agreement to a competitor or existing customer of VueLab without VueLab’s written consent. Subject to the foregoing, this Agreement will bind and benefit the Parties and their respective successors and assigns.

16.2     Electronic Signature. The parties consent to using electronic signatures to sign this Agreement and to be legally bound to their electronic signatures. The parties acknowledge that his or her electronic signature will have the same legal force and effect as a handwritten signature.

16.3     No Partnership or Joint Venture. The Agreement is not intended to be, and shall not be construed as, an agreement to form a partnership, agency relationship, or a joint venture between the parties. Except as otherwise specifically provided in the Agreement, neither party shall be authorized to act as an agent of or otherwise to represent the other party.

16.4     Headings. Captions to, and headings of, the articles, sections, subsections, paragraphs or subparagraphs of this Agreement are solely for the convenience of the parties, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof.

16.5     Publicity. Client grants VueLab the right to use Client’s company name and logo as a reference for marketing or promotional purposes on VueLab’s website and in other public or private communications with its existing or potential customers, subject to Client’s standard trademark usage guidelines as provided to VueLab from time-to-time.

16.6     No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.

16.7     Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

16.8     Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) twenty-four (24) hours after having been sent via electronic mail to the contact person at the address listed in each instance on the Key Agreement Terms page unless a Party notifies the other Party in writing of a change to the contact person and/or the contact person’s contact information. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either Party to the other Party in accordance with this Section 16.8.

16.9     Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each Party.

16.10   Entire Agreement. This Agreement, together with all exhibits incorporated herein as set forth in Section 3 of the Key Agreement Terms and any subsequently executed Service Order(s), constitutes the complete and exclusive agreement of the Parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties hereto.

16.11   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, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

16.12   Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

SLA EXHIBIT

SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) sets forth the terms and conditions under which VueLab will provide service levels to Clients pursuant to the Master Subscription and License Agreement executed between VueLab and Clients (the “Agreement”).

1         Definitions.The following definitions will apply to this SLA. All capitalized terms not defined in this SLA will have the meaning given them in the Agreement.

1.1        “Downtime” means any time that the VueLab Platform is not available for access by Authorized Users.

1.2        “Excused Downtime” means any Downtime that is caused by (i) Maintenance, (ii) Client’s or Authorized Users’ telecommunications, Internet, and network services, (iii) software, hardware, and services not controlled by VueLab (including but not limited to third-party services used to provide the VueLab Platform and software or sites that are accessed or linked through the VueLab Platform), or (iv) any Force Majeure Events or other matter beyond VueLab’s reasonable control.

1.3        “Maintenance” means maintenance to the VueLab Platform: (i) that occurs during the time period that VueLab or its third-party service providers reserve for scheduled maintenance, which will be non-business hours (i.e. not during 8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding those weekdays on which any federal holidays occurs in the United States) and will not exceed four (4) hours per month; and (ii) any additional maintenance for which VueLab provides Client with at least two (2) days advance notice.

1.4        “Uptime” means any time that is not Downtime.

2         Service Availability.

2.1        Target Uptime Percentage. VueLab will use commercially reasonable efforts to provide at least 99% Uptime in any calendar month (the “Target Uptime Percentage”).

2.2        Achieved Uptime Percentage. Actual Uptime percentage for each calendar month will be the quotient, expressed as (i) the total minutes potentially available for Uptime for that month minus total minutes of Downtime (other than Excused Downtime), divided by (ii) the total minutes potentially available for Uptime for that month minus any minutes of Excused Downtime (the “Achieved Uptime Percentage”).

3         Right to Cancel

3.1        In the event that the Achieved Uptime Percentage is less than the Target Uptime Percentage in two consecutive calendar months (a “Triggering Event”), Client shall have the right to cancel the agreement (the “Cancellation Right”) by providing VueLab written notice of such cancellation (a “Cancellation Notice”)within 14 days after the last day of the calendar month in which the Triggering Event arose (the “Triggering Month”). If Client does not provide a Cancellation Notice within 14 days after the last day of the Triggering Month, the Cancellation Right arising with respect to the Triggering Event shall expire.

3.2        Exercise of a Cancellation Right pursuant to this SLA will be Client’s sole and exclusive remedy, and the entire liability of VueLab, for any failure to achieve the Target Uptime Percentage or any breach of this SLA.

4         Error Priorities and Response Times. Issues with the VueLab Platform are classified based on severity of the issues and the required resources needed to resolve them. VueLab will designate the severity and impact of the reported issue as defined below and will use commercially reasonable efforts to respond and commence working on the applicable issue in accordance with the time periods below.

PriorityDescriptionResponse Time
1Critical Priority. VueLab Platform is inoperable. All work has stopped. No workaround is available.30 minutes
2High Priority. VueLab Platform is severely limited or degraded by virtue of at least one primary function, e.g., registration, uploading, viewing, being inoperable.90 minutes

For issues that do not materially affect Client’s services and informational inquiries, VueLab will respond promptly during regular business hours.