Master Subscription Agreement

Effective day 25 July 2019
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement as of the date of such access or use of the Service (the "Effective Date"). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an "Entity"), You are agreeing to this Agreement for that Entity and representing to OAPPS LLC (an "OAPPS") that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms "Subscriber," "You," "Your" or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services.

Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party's execution, delivery or performance of the Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound, or any applicable law or regulation.

The purpose of this Agreement is to establish the terms and conditions under which Subscriber may purchase OAPPS's Services and Consulting Services as described in Sales Order Form or in a Statement of Work signed by You.

In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Sales Order Form or Statement of Work, the terms of the Sales Order Form or Statement of Work shall control. Non-English translations of this Agreement are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and shall control.

General Terms and Conditions

1. Access to the Services

1.1 Service. We will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Sales Order Form(s) and Documentation in accordance with Your Service Plan. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (a) during Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); and (b) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, a Force Majeure Event.

1.2 Support. We will, at no additional charge, provide applicable standard customer support for the Services to You as detailed on the applicable Site and Documentation, and upgraded support, if purchased.

1.3 Modifications. You acknowledge that OAPPS may modify the features and functionality of the Services during the Subscription Term. OAPPS shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality.

1.4 Additional Features. We will notify You of applicable Supplemental Terms and/or alternate agreement prior to Your activation of any Additional Features. The activation of any Additional Features by You in Your Account will be considered acceptance of the applicable Supplemental Terms or alternate agreement where applicable.

1.5 Extension of Rights to Affiliates. You may extend Your rights, benefits and protections provided herein to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates' behalf, provided that You remain responsible for Your and their compliance hereunder.

2. Use of the Services

2.1 Login Management. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed, or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent Login shall only be used by one (1) designated individual Agent. You further agree and acknowledge that an Agent Login cannot be shared or used by more than one individual, but that Agent Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and Your Agents are responsible for maintaining the confidentiality of all Agent Login information for Your Account. Absent a written license from OAPPS expressly stating otherwise, You agree and acknowledge that You may not use the Services, including but not limited to the API, to circumvent the requirement for an individual Agent Login for each individual who (a) leverages the Services to interact with End-Users; (b) Processes data related to interactions with End-Users; or (c) Processes data related to interactions originating from a Non-OAPPS Service that provides functionality similar to functionality provided by the Services and which would, pursuant to this Agreement, require an individual Agent Login if utilizing the Services for such interaction. Should OAPPS discover that Your use of a OAPPS Service is not in compliance with this Agreement or the Service Plan features and limitations on Our Site, OAPPS reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.

2.2 Compliance. As between You and OAPPS, You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, which OAPPS may verify from time to time. Without limiting the foregoing, You are solely responsible for ensuring that the use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes.

2.3 Content and Conduct. In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree to the OAPPS User Content and Conduct Policy available on OAPPS's Website, which is hereby incorporated into this Agreement. Further, in Your use of the Services You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement, unless expressly agreed to otherwise in writing by OAPPS; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with OAPPS; (e) use the Services in any unlawful manner, including, but not limited to, violation of any person's privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, other forms of duplicative or unsolicited messages or messages that directly or indirectly support pyramid schemes or other fraudulent activities; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person's intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is (or directly or indirectly supports activities that are) unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any "protected health information" as defined in 45 C.F.R. 160.103 provided that You are a "business associate" or "covered entity" as defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by OAPPS; (l) use the Services to knowingly post, transmit, upload, link to, send or store any Malicious Software; (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner, that sends more request messages to a Service server in a given period of time, than a human can reasonably produce in the same period by using a conventional online web browser; or (n) attempt to use or use the Services in violation of this Agreement.

2.4 System Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, browser software that supports protocols used by OAPPS, including the Transport Layer Security (TLS) protocol or other protocols accepted by OAPPS, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet), which are not owned, operated or controlled by OAPPS. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.5 Internal Business Purposes Only. Unless otherwise authorized by OAPPS in this Agreement or expressly agreed to otherwise in writing by OAPPS, You may not use the Services in any manner where You act as a service bureau or to provide any outsourced business process services on behalf of more than one (1) third party (other than Affiliates) through a single Account. For the avoidance of doubt, this section means You may not resell or outsource the Service(s) except as expressly authorized by OAPPS. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by OAPPS from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in accordance with this Agreement.

2.6 No Competitive Access. You may not access the Services if You are a direct competitor of the OAPPS Group, except with OAPPS's express prior written consent. You may not access the Services for competitive purposes.

3. Term, Cancellation and Termination

3.1 Term. Unless Your Account and subscription to a Service is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an Sales Order Form, Your subscription to a Service (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Sales Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.

3.2 Cancellation. Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term.

3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party's receipt of such written notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Sales Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your Account pursuant to Section 3.3, in addition to any other amounts You may owe OAPPS, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.

3.5 No Refunds. If You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.

3.6 Export of Service Data. For thirty (30) days after the effective date of termination or expiration of this Agreement, upon Your request, We will make Service Data available to You for export or download as provided in the Documentation. Thereafter, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, We will, unless prohibited by law or legal order, delete Your Service Data in Our Services in accordance with Our Data Deletion Policy available on OAPPS's Policies and Procedures Website.

4. Billing, Plan modifications and Payments

4.1 Payment and Billing. All Subscription Charges are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed, unless otherwise expressly set forth in this Agreement, Sales Order Form, Statement of Work, or in Supplemental Terms, or as otherwise agreed for Usage Charges. You are responsible for providing valid and current Account information and You agree to promptly update Your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address or credit card expiration date). If You fail to pay Your Subscription Charges or other charges indicated on any Sales Order Form within five (5) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users.

4.2 Upgrades. If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such upgrades.

4.3 Downgrades. You may not downgrade Your Service Plan or reduce the number of Agents under any Service Plan during Your Subscription Term. If You desire to downgrade Your Service Plan or reduce the number of Agents under any Service Plan for a subsequent Subscription Term, You must provide OAPPS with thirty (30) days advance written notice prior to the end of Your then current Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and OAPPS does not accept any liability for such loss.

4.4 Taxes. Unless otherwise stated, Our charges do not include any Taxes. You are responsible for paying Taxes except those assessable against the OAPPS Group measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

4.5 Payment Agent. If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). Payments made by credit card, debit card or certain other payment instruments for the OAPPS Service are billed and processed by OAPPS's Payment Agent. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services, and for periodic Subscription Charges applicable to Deployed Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize OAPPS and the Payment Agent to charge Your credit card or other payment instrument to establish prepaid credit. The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. To the extent the Payment Agent is not OAPPS, the Payment Agent is acting solely as a billing and processing agent for and on behalf of OAPPS and shall not be construed to be providing the applicable Service. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.

4.6 Payment Portals. If You mandate OAPPS use a vendor payment portal or compliance portal which charges OAPPS a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by OAPPS for, and You are obligated to pay, the cost of this fee.

5. Confidential Information

Each Party will protect the other's Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party's Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 5 shall control over any non-disclosure agreement by and between the Parties and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. To be clear, any exchange of Confidential Information prior to the execution of this Agreement shall continue to be governed by any such non-disclosure agreement.

6. Ownership and Security of Services Data

6.1 Ownership of Service Data. Subscriber shall continue to retain Subscriber's ownership rights to all Service Data Processed under the terms of this Agreement.

6.2 No Sale of Service Data. OAPPS will never sell, rent, or lease Your Service Data to any third party. We will not share Your Service Data with third parties, except as permitted by this Agreement and in order to provide, secure and support the Services.

6.3 Safeguards. The OAPPS will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; as well as in accordance with Supplemental Terms for any Deployed Associated Services, as applicable.

7. Privacy practices

7.1 Subscriber as Data Controller. To the extent Service Data constitutes Personal Data, You and the OAPPS hereby agree that You shall be deemed to be the Data Controller, and the relevant entity in the OAPPS shall be deemed to be the Data Processor, as those terms are understood under the Applicable Data Protection Law.

7.2 Hosting and Processing. Unless otherwise specifically agreed to by OAPPS, Service Data may be hosted by the OAPPS, or their respective authorized third-party service providers, in the United States, the EEA or other locations around the world. In providing the Services, OAPPS will engage authorized service providers to Process Service Data, including and without limitation, any Personal Data within Service Data pursuant to this Agreement within the EEA, the United States and in other countries and territories.

7.3 Transfer of Personal Data. To the extent that Personal Data within Service Data originates from an Agent or End-User in the EEA, as further described in our DPA, We will ensure that, pursuant to Applicable Data Protection Law, if Personal Data within Service Data is transferred to a country or territory outside of the EEA (a "non-EEA country"), then such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 46 GDPR (or its equivalent under any successor legislation) is satisfied or (c) the transfer takes place pursuant to the EU-U.S. or Swiss-U.S. Privacy Shield frameworks. We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission, which have been incorporated into the DPA.

7.4 Sub-Processors. You acknowledge and agree that OAPPS may use Sub-Processors, who may access Service Data, to provide, secure and improve the Services. We shall be responsible for the acts and omissions of members of OAPPS Personnel and Sub-Processors to the same extent that We would be responsible if OAPPS was performing the services of each OAPPS Personnel or Sub-Processor directly under the terms of this Agreement. The names and locations of all current Sub-Processors used for the Processing of Personal Data under this Agreement are set forth in the Sub-Processor Policy available on OAPPS's Website.

8. Temporary Suspension

We reserve the right to restrict functionality or suspend the Services (or any part thereof), Your Account or Your and/or Agents' or End-Users' rights to access and use the Services and remove, disable or quarantine any Service Data if (a) We reasonably believe that You, Agents or End-Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users. This right includes the removal or disablement of Service Data. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.

9. Non-OAPPS services

If You decide to enable, access or use Non-OAPPS Services, Your access and use of such Non-OAPPS Services shall be governed solely by the terms and conditions of such Non-OAPPS Services. OAPPS does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non-OAPPS Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data), or any interaction between You and the provider of such Non-OAPPS Services. We cannot guarantee the continued availability of such Non-OAPPS Service features, and may cease enabling access to them without entitling You to any refund, credit or other compensation, if, for example and without limitation, the provider of a Non-OAPPS Service ceases to make the Non-OAPPS Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against OAPPS with respect to such Non-OAPPS Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Non-OAPPS Services, or Your reliance on the privacy practices, data security processes or other policies of such Non-OAPPS Services. You may be required to register for or log into such Non-OAPPS Services on their respective websites. By enabling any Non-OAPPS Services, You are expressly permitting OAPPS to disclose Your login and Service Data as necessary to facilitate the use or enablement of such Non-OAPPS Services.

10. Free Trials

If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. Trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase. ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.

11. Beta services

From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered "Services" under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Non-OAPPS Services shall apply equally to Your use of Beta Services. Unless otherwise stated or communicated to You, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

12. Intellectual property rights

Each Party shall retain all rights, title and interest in any Intellectual Property Rights. The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of OAPPS associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with OAPPS and belong exclusively to OAPPS.

The OAPPS shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. The OAPPS also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf.

13. Representations, Warranties and Disclaimers

13.1 Authority. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

13.2 Warranties. We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Your exclusive remedies are those described in Section 3.3 herein.

13.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 13.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

14. Indemnification

14.1 Indemnification by Us. We will indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party's valid patent, copyright, trademark or trade secret (an "IP Claim"). We shall defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by OAPPS for such defense, provided that (a) You promptly notify OAPPS of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with OAPPS in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by OAPPS, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to OAPPS for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than OAPPS or OAPPS Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state the sole, exclusive and entire liability of OAPPS to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.

14.2 Indemnification by You. You will indemnify and hold OAPPS harmless against any claim (a) arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party's valid patent, copyright, trademark or trade secret; provided (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We fully cooperate with You in connection therewith.

15. Limitation of liability

15.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF OAPPS), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

15.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE OAPPS AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 15.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.

THE LIMITATIONS SET FORTH IN SECTION 15.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM OAPPS'S IP CLAIMS INDEMNITY OBLIGATIONS IN SECTION 14.1 OF THIS AGREEMENT.

15.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE OAPPS LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

15.4 Any claims or damages that You may have against OAPPS shall only be enforceable against OAPPS and not any other entity or its officers, directors, representatives or agents.

16. Notice of Data practices

16.1 In-Product Cookies. Whenever You, Your Agents or End-Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, "cookie" information, and the type of browser and/or device being used to access the Services. When We collect this information, We only use this data to provide the Services or in aggregate form, and not in a manner that would identify Your Agents or End-Users personally.

16.2 Operating the Services. Subject to the confidentiality terms set forth herein, OAPPS may receive, collect, store and/or Process Personal Data based on Our legitimate interest under Applicable Data Protection Law to operate the Services. For example, We may collect Personal Data (such as name, phone number, or credit card information) through our registration process. OAPPS may also use Service Data in an anonymized manner, such as conversion to numerical value, for the training of the machine learning models to support certain features and functionality within the Service(s).

16.3 Communicating with You. We may communicate with You and Your Agents, send You and Your Agents product announcements and promotional offers or contact You and Your Agents about the Services based on Our legitimate interest under Applicable Data Protection Law to offer information about the Services. If You or an Agent does not want to receive communications from Us, please indicate this preference by sending an email to us and provide us with the name and email address of each Agent that no longer wishes to receive these communications. You and Your Agents will continue to receive transactional messages that are required for OAPPS to provide the Services to You (such as billing notices and product usage notifications).

16.4 Promoting the Services. We may share aggregated and/or anonymized information regarding Your use of the Services with third parties for marketing purposes based on Our legitimate interest under Applicable Data Protection Law to develop and promote Service(s). We never disclose aggregated and/or anonymized information to a third party in a manner that would identify You as the source of the information or Your Agents or End-Users personally.

16.5 Improving the Services. We may collect, and we may engage third-party analytics providers to collect, Usage Data to develop new features, improve existing features or inform sales and marketing strategies based on Our legitimate interest under Applicable Data Protection Law to improve the Services. When OAPPS uses Usage Data, any Personal Data that was included in Service Data shall be anonymized and/or aggregated in such a manner that it no longer constitutes Service Data or Personal Data under Applicable Data Protection Law. Any such third-party analytics providers will not share or otherwise disclose Usage Data, although OAPPS may make Usage Data publicly available from time to time.

16.6 Connecting the Services. In the event that You decide to use a Non-OAPPS Service or You log into Our Services through a third-party social media or authentication service, or otherwise provide Us with access to information from such third-party social media or authentication service, OAPPS may obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services based on Our legitimate interest under Applicable Data Protection Law to provide You with functionality to support the Services. Any access that We may have to such information from a third-party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a Non-OAPPS Service, You authorize Us to access and store Your name, email address(es), current city, profile picture URL, and any other Personal Data that the Non-OAPPS Service makes available to Us, and to use and disclose it in accordance with this Agreement and the OAPPS Privacy Policy available on the OAPPS Customers and Partners Website.

16.7 Third-Party Service Providers. You agree that the OAPPS Group, and the third-party service providers that are utilized by the OAPPS Group to assist in providing the Services to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose the Personal Data of Your Agents to the extent necessary to provide, secure or improve the Services. Any third-party service providers utilized by the OAPPS Group will only be given access to Your Account as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 5; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 7.

17. Assignment, Enter agreement and Amendment

17.1 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent, which consent will not be unreasonably withheld. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

17.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between You and OAPPS with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.

17.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by OAPPS as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

18. Severability

If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

19. Export compliance and Restrictions

The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users are subject to U.S. export control and economic sanctions laws as administered and enforced by the Office of Foreign Assets and Control of the United States Department of Treasury. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.

20. Relationship of the parties

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties.

21. Notice

All notices provided by OAPPS to You under this Agreement may be delivered in writing by electronic mail to the electronic mail address provided for Your Account owner. All notices shall be deemed to have been given immediately upon delivery by electronic mail.

22. Governing Law

This Agreement shall be governed by the laws of the State of Wyoming, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Cheyenne city, Wyoming. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End-Users.

23. Federal government and Use provisions

If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.

24. Anti-corruption

You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@oapps.io.

25. Survival

Sections 2.1, 3.5, 3.6, 4.4, 5 – 7, 12 – 22 and 26 shall survive any termination of this Agreement with respect to use of the Services by You, Agents or End Users. Termination of this Agreement shall not limit a Party's liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

26. Definitions

When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

"Account" means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.

"Additional Feature(s)" means additional features or functionality (including, but not limited to, Built by OAPPS Applications, or Beta Services) that are available or enabled through the Service, but do not form part of the Service. Additional Features are purchased or enabled separately and distinctly from Your Service Plan and Deployed Associated Services.

"Affiliate" means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

"Agent" means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account as an agent and/or administrator, each as identified through an individual Agent Login.

"Agent Login" a unique username and password provisioned on an Agent-by-Agent basis.

"Agreement" means the Master Subscription Agreement together with any all Supplemental Terms, Sales Order Forms, and other documents.

"API" means the application programming interfaces developed, made available and enabled by OAPPS that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.

"Applicable Data Protection Law" means the following data protection law(s): (a) the EU Regulation 2016/679 entitled "On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR)" and any applicable national laws made under it; and (b) the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).

"Associated Services" means products, services, features and functionality designed to be used in conjunction with the Services that are not included in the Service Plan to which You subscribe. For avoidance of doubt, Additional Features that are expressly stated to be governed by separate Supplemental Terms shall not be deemed an Associated Service.

"Beta Services" means a product, service or functionality provided by OAPPS that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.

"Confidential Business Information" means all Confidential Information that is not Service Data, including, without limitation, Your Agents' Personal Data and Account information, which OAPPS may store in its systems separate from the Service and Our security policies and procedures.

"Confidential Information" means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, Subscriber Service Data and Confidential Business Information, Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party's Confidential Information.

"Consulting Services" means consulting and professional services (including any training, success or implementation services) provided by OAPPS Personnel as indicated on an Sales Order Form or other written document such as a SOW.

"Documentation" means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by OAPPS to You in the applicable OAPPS help center(s), Site or OAPPS developer website (https://developer.OAPPS.com/); provided, however, that Documentation shall specifically exclude any "community moderated" forums as provided or accessible through such knowledge base(s).

"End-User" means any person or entity other than Subscriber or Agents with whom Subscriber, its Agents, or its End-Users interact while using a Service.

"Enterprise Services" means any Service not designated on OAPPS's Innovation Services List available on OAPPS's Customers and Partners Website.

"Force Majeure Event" means an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-OAPPS Services, or acts undertaken by third parties, including without limitation, denial of service attack.

"Intellectual Property Rights" means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.

"Sales Order Form: means Our generated service Sales Order Form(s) executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Agents authorized to use a Service under Your subscription and the Service Plan applicable to Your subscription.

"Payment Agent" means OAPPS or a payment agent designated by OAPPS.

"Personal Data" means any information relating to an identified or identifiable natural person ('data subject') where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.

"Personnel" means employees and/or non-employee service providers and contractors of the OAPPS Group engaged by the OAPPS Group in connection with performance hereunder.

"Planned Downtime" means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.

"Processing/to Process/Processed" means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

"Malicious Software" means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.

"Service(s)" means the products and services that are ordered by You online through a link or via an Sales Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed ("Deployed Associated Services") that are provided under this Agreement. "Services" exclude (a) Non-OAPPS Services as that term is defined in this Agreement; and (b) any Additional Features or Associated Services that are not provided under this Agreement or Your Service Plan. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Sales Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.

"Service Data" means a subset of Confidential Information comprised of electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data (but shall not include the Personal Data of Your Agents in the context of Account Information as described in the Privacy Policy).

"Service Data Breach" means an unauthorized access or improper disclosure that has been verified to have affected Your Service Data.

"Service Plan(s)" means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services.

"Site" means a website operated by the OAPPS, including www.oapps.io, as well as all other websites that the OAPPS operates.

"Software" means software provided by OAPPS (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.

"Sub-Processor" means any third-party data processor engaged by OAPPS, that receives Service Data from OAPPS for Processing on behalf of Subscriber and in accordance with Subscriber's instructions (as communicated by OAPPS) and the terms of its written subcontract.

"Subscription Charges" means all charges associated with Your access to and use of an Account.

"Subscription Term" means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.

"Supplemental Terms" means the additional terms and conditions that are (a) set forth below in this Agreement in the sections entitled, "Supplemental Terms"; (b) included or incorporated on an Sales Order Form via hyperlink or other reference (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting Services when purchased by You; and (d) applicable to Additional Features when activated by You.

"Taxes" means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.

"Non-OAPPS Services" means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Non-OAPPS Services which may be integrated directly into Your Account by You or at Your direction.

"Usage Charges" means additional Subscription Charges that are incurred by Subscriber relating to the use of certain features and functionality that Subscriber enables within the Service.

"Usage Data" means metrics and information regarding Your use of the Service, including evaluating how Agents and End-Users use the Service.

"We", "Us" or "Our" means OAPPS as defined below.

"OAPPS" means OAPPS LCC or any of its successors or assignees.

"OAPPS Marks" means any trademarks, service marks, service or trade names, logos or other designations of OAPPS, or its or their Affiliates, whether registered or unregistered.

Exhibit A. Supplemental Terms: Consulting Services

1. Scope

All Consulting Services pursuant to the Agreement provided by OAPPS to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed SOWs or Sales Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.

2. Retention

Subscriber hereby retains OAPPS to provide the Consulting Services described in one or more SOWs or Sales Order Forms, subject to the terms and conditions set forth in the Agreement. OAPPS shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed a SOW or Sales Order Form with respect to such Consulting Services. After execution of a SOW or Sales Order Form, the Consulting Services to be provided under that SOW or Sales Order Form may only be changed through a change order mutually executed by the Parties ("Change Order").

3. Performance of Consulting Services

3.1 Each SOW or Sales Order Form will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees (defined below) charged and the Consulting Services provided. OAPPS and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.

3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services.

3.3 OAPPS will perform the Consulting Services through qualified employees and/or non-employee contractors of OAPPS ("Subcontractors" and together with OAPPS's employees for the purposes of these Supplemental Terms, "Consulting Services Personnel"). Subscriber agrees to provide, at no cost to OAPPS, timely and adequate assistance and other resources reasonably requested by OAPPS to enable the performance of the Consulting Services (collectively, "Assistance"). OAPPS, including its Subcontractors, will not be liable for any deficiency in the performance of Consulting Services to the extent such deficiency results from any acts or omissions of Subscriber, including, but not limited to, Subscriber's failure to provide Assistance as required hereunder.

3.4 In performing the Consulting Services, OAPPS will utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to OAPPS's use of a Subcontractor by specifying its reasonable objection to OAPPS, in which case the Parties will cooperate in good faith to appoint another Consulting Services Personnel to perform such Consulting Services. OAPPS may replace Consulting Services Personnel in its normal course of business, provided that OAPPS will be responsible for the performance of Consulting Services by all Consulting Services Personnel.

3.5 OAPPS will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Consulting Services Personnel performing Consulting Services. OAPPS will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform OAPPS's obligations under the Agreement in accordance with its terms.

3.6 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW or Sales Order Form (including, but not limited to, any changes to the project schedule described in the SOW or Sales Order Form), Subscriber shall discuss such proposed changes with OAPPS. If OAPPS elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a written Change Order. OAPPS shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. OAPPS shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.

3.7 Unless otherwise agreed to in a SOW or Sales Order Form, for Consulting Services that are deliverable or milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW or Sales Order Form, OAPPS shall provide Subscriber with written notice ("Completion Notice"). Thereafter, Subscriber shall have five (5) business days from the date of the Completion Notice to provide OAPPS with written notice describing any deliverables that have not been provided or milestones not met. The SOW or Sales Order Form shall be deemed complete and the deliverables accepted or milestones met absent Subscriber's timely written notice of any deliverables not having been provided or milestones not having been met. In the event that Subscriber provides timely written notice of any deliverables not having been provided or milestones not having been met, OAPPS shall make commercially reasonable efforts to remedy the defects identified. If the defects cannot be remedied, Subscriber may terminate the applicable SOW and OAPPS shall return the portion of the Consulting Fees paid to OAPPS by Subscriber for the nonconforming portion of the Consulting Services (or, if Consulting Fees have not yet been paid, Subscriber will be relieved from its obligation to pay Consulting Fees for the nonconforming portion of the Consulting Services). For the avoidance of doubt, a Completion Notice shall not be necessary for Consulting Services that are time and materials based.

4. Consulting Fees

4.1 Subscriber will pay OAPPS the fees to provide the Consulting Services as detailed or described in an Sales Order Form or SOW (the "Consulting Fees").

4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW or Sales Order Form. Each SOW or Sales Order Form providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services ("T&M Estimate"). OAPPS will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. If it appears that the T&M Estimate may be exceeded, OAPPS will make a reasonable effort to notify Subscriber as soon as practicable and provide an amended T&M Estimate. Upon receiving such amended T&M Estimate, Subscriber will accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) business days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is accepted by Subscriber shall be deemed a Change Order.

4.3 As detailed in the applicable SOW or Sales Order Form, the performance of Consulting Services may be subject to an advance payment of Consulting Fees by Subscriber upon execution of the SOW or Sales Order Form. Such retainer will be applied against Consulting Fees which become payable by Subscriber. OAPPS may refuse to perform Consulting Services unless and until such advance payment is paid to OAPPS.

4.4 In addition to any and all Consulting Fees, Subscriber will reimburse OAPPS for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including changes to travel and accommodations resulting from Subscriber's request incurred by OAPPS in connection with providing the Consulting Services ("Expenses"). OAPPS will provide reasonable documentation for all Expenses as requested by Subscriber.

4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.

4.6 Cancellation/Changes: Any cancellations of or changes to the Consulting Services less than five (5) business days prior to the agreed upon Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).

5. Relationship of the Parties

OAPPS is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. OAPPS will never hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to OAPPS hereunder shall not be considered salary for pension or wage tax purposes and neither OAPPS nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.

6. Warranties

6.1 OAPPS hereby represents and warrants that:
(a) the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by OAPPS and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber's sole and exclusive remedy for any breach of this warranty will be, at OAPPS's option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to OAPPS by Subscriber for the nonconforming portion of the Consulting Services; and
(b) it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.

6.2
The Parties hereby agree that:
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE OAPPS SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, "CUSTOMIZED DELIVERABLES") ARE PROVIDED TO SUBSCRIBER "AS IS" AND OAPPS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. OAPPS SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY OAPPS. OAPPS DOES NOT WARRANT THAT SUBSCRIBER'S OR ANY THIRD PARTY'S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. OAPPS EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, OAPPS EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY OAPPS OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY'S USE OF THE SERVICES.

7. Rights to Deliverables; Ownership

7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW or Sales Order Form primarily involve the configuration of Subscriber's subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a "Work Made For Hire" under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to OAPPS all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to OAPPS a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, OAPPS shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback OAPPS receives from Subscriber.

7.2 Without limiting the foregoing, OAPPS and its licensors reserve and retain ownership of all Pre-existing Technology, Developed Technology and Generic Components (each as defined below), and OAPPS hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with Subscriber's use of the Service(s). "Pre-existing Technology" means all of OAPPS's inventions (including those of OAPPS's Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. "Developed Technology" means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by OAPPS and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify OAPPS's Pre-existing Technology. "Generic Components" means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by OAPPS and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support OAPPS's product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber's Confidential Information.