SaaS Agreement

Software as a Service Agreement

This Software as a Service Agreement (this “Agreement”), effective as of August ____, 2022 (the “Effective Date”), is by and between Capacity Enhancement and Development Services, LLC, doing business as CED Services and Club 720, an Indiana limited liability company with offices located at 6347 Constitution Drive, Fort Wayne, IN 46804 (“Provider”), and , an Indiana Corporation with offices located at (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

RECITALS

WHEREAS, Provider provides access to the Services (as defined herein) to its customers; and

WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions.
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
2. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services, including Personal Information (as hereinafter defined).
3. “Documentation” means Provider’s user manuals, instructions, handbooks, guides, or other documents or materials that Provider provides or makes available to Customer, in any form or medium or which describes the functionality, components, features, or requirements of the Services, including, without limitations, forms and end user documentation relating to the Services available at www.club720.org.
4. “Force Majeure Event” means any circumstances beyond Provider’s reasonable control, including act of God, flood, fire, earthquake, epidemics, pandemics, explosions, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or actions, embargoes or blockades in effect on or after the date of this Agreement and national or regional emergency.
5. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
6. “Personal Information” means information that Customer provides, or for which Customer provides access to Provider, or information which Provider creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, social security number, driver’s license number, state-issued identification number, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, credit, debit, or other payment cardholder information, with or without any required security or access code, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Customer’s business contact information is not by itself Personal Information.
7. “Provider Materials” means the Services, the Documentation, the Provider Systems and any and all information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, and all other intellectual property provided or used by Provider in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
8. “Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
9. “Services” means the software-as-a-service offering that is offered through a platform that connects individuals with available funding programs designed to help them generate their own assets, including buying or renovating a home, among other services.
10. “Third-Party Materials” means any third-party products, materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
11. “Third-Party Provider” means a third-party supplying Third-Party Materials.

Access and Use.
Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in Exhibit “A”, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
1. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) knowingly use the Services or Documentation in any manner or for any purpose not contemplated by the Services that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; or (vi) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 2.
3. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties: (a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems or any other means controlled by Customer or any Authorized User, including: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) conclusions, decisions, or actions based on Customer’s use of the Services or Provider Materials.
4. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, waiver, estoppel, or otherwise. All right, title and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and their respective rights holders in the Third-Party Materials.
5. Suspension or Termination of Services. Notwithstanding anything to the contrary in this Agreement, Provider may, directly or indirectly, and by use of any lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s, or any other person’s or entity’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (A) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly by reasonably implication requires Provider to do so; or (B) Provider believes, in its reasonably discretion, that (i) there is a threat or attack on any of the Services or the Provider Materials; (ii) Customer’s or any Authorized User’s use of the Services, or the Provider Materials disrupts or poses a security risk to the Provider’s Intellectual Property Rights or to any other customer or vendor of Provider; (iii) Customer, or any Authorized User, is, has been, or is likely to be involved in using the Services or Provider Materials for fraudulent, deliberately misleading or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (v) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (vi) Customer or any other Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instructions or materials provided by Provider; or (vii) this Agreement expires or is terminated (it being understood that, with respect to termination, each party retains all rights and remedies for breach associated with such termination and the related suspension under this clause (B)(vii)); (C) any vendor of Provider has suspended or terminated Provider’s access to or use of any Third-Party Materials required to enable Customer to access the Services (a “Third Party Service Suspension”) (it being understood that Customer retains all rights and remedies for breach associated with such suspension under this clause (C)); or (D) in accordance with Section 5(a)(iii) (any such suspension described in the foregoing subsections, a “Service Suspension”). In the case of any Service Suspension, Provider shall provide written notice of any Service Suspension (unless providing such notice is prohibited by law) to Customer and use commercially reasonable efforts to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. In the event of a Third Party Service Suspension which interrupts or impedes Customer’s access to the Services, Provider shall at Provider’s expense use all reasonable efforts to restore promptly the third-party service or to provide alternate service which is comparable to the terminated third-party service. Provider shall use commercially reasonable efforts to obtain alternate third-party service at the same or similar cost to the Customer. During such Service Suspension, Customer shall be excused from any fees due in connection with such terminated service. If Provider is unable to provide a replacement to the terminated third-party services, Customer shall have the right to terminate the Services, and Provider shall: (x) refund all fees paid in advance for the terminated Services, and (y) release Customer from further liability for fees for such terminated Services. Except in the instance of a Third Party’s Service Suspension; or willful misconduct or gross negligence by the Provider, Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
6. Changes. Provider reserves the right, in its sole and absolute discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful, including changes to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; or (ii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided, however, that no such change to the Services or Provider Materials pursuant to subsection (a) of this paragraph shall result in a material increase in cost to Customer or a material disruption or materially increased burden to Customer’s Systems. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written change order signed by both Parties.
7. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services to improve the Services or to develop new product offerings for its customers. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in order to comply with applicable law, and (ii) otherwise use Aggregated Statistics to the extent and in the manner permitted under applicable law.
Customer Responsibilities.
General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair all Customer Systems on or through which the Services are accessed or used; (b) provide Provider personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services; and (c) provide all cooperation and assistance as Provider may reasonable request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement, subject in each instance to the Customer Exceptions as hereinafter defined. The following are “Customer Exceptions” to the requirements of this Section 5(a), and the Customer Systems and cooperation will not be considered unavailable or impaired in violation of this Section 3(b), if the unavailability or impairment is due, in whole or in part, to any of the following: (a) Customer’s or its Authorized User’s internet connectivity; (b) a Force Majeure Event; (c) failure, interruption, outage or other problem with any software, hardware, system, network facility or other matter which is not part of the Customer’s System; and (d) failure, disabling, Service Suspension, or termination of the Services.
2. Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. Notwithstanding the foregoing, Provider shall continue to perform its obligation under this Agreement if Customer fails to make a payment that is the subject of a bona fide dispute, in accordance with Section 6(a).
3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2(c), Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
Provider Responsibilities. Provider represents that Exhibit A is a complete and accurate list of Third-Party Products and Third-Party Providers which are used by Provider in rendering the Services. Provider agrees at all times to comply with its obligations to Third-Party Providers. Provider will notify Customer if Provider has breached such obligations. Provider will give the Customer notice if it intends to make additional Third-Party Materials available to Customer. Provider has implemented as of the Effective Date and, throughout the term of this Agreement shall maintain a risk-based vendor management program which shall include policies and procedures providing for oversight with respect to all Third-Party Providers engaged to provide Services hereunder. In accordance with these policies, Provider shall conduct risk-based due diligence on all new and current Third-Party Providers hereunder at least annually. Provider’s diligence program shall include, as appropriate, an annual review of financial and security artifacts, including as applicable information security policies and procedures, independent audit reports (e.g., Soc 2 Type 2), penetration test reports, financial audit reports, and security questionnaire responses. Provider will notify Customer of any Third-Party Provider which fails to comply with Provider’s oversight data security and privacy compliance requirements, and what remedial action Provider intends to take to correct such non-compliance. Provider will notify Customer of any material changes to its vendor management program during the term of this Agreement and will make available to Customer summary results of its annual review of any Third-Party Providers from which Customer receives Third-Party Products. Upon Customer’s written request, and no more than once per year during the Term, Provider will provide to Customer a copy of its most recent Soc 2 Type 2 for Customer’s review. Provider may from time to time make Third-Party Materials available to Customer. For purposes of this Agreement, such Third-Party Materials are subject to their own terms and conditions and the applicable flow-through provisions. If Customer does not agree to abide by the applicable terms for any such Third-Party Materials, then Customer shall notify the Provider and shall not install or use such Third-Party Materials. Provider may, at its discretion, propose an alterate Third-Party Provider who will agree to terms and conditions required by Customer. Once Customer has accepted flow through provisions, Provider shall not agree to changes to such provisions which impose additional burden or expenses on Customer without Customer’s prior written approval; provided, however, that Customer’s approval shall not be unreasonably withheld or delayed to the extent that the proposed changes are required by applicable law or regulation.
Service Levels and Support.
Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service level set forth in Exhibit “A”, excluding unavailability as a result of any of the Exceptions hereinafter described. The following are “Exceptions” to the availability requirement of this Section 5(a), and the Services will not be considered unavailable in connection with any failure to make the Services available, or impaired ability of Customer or its Authorized Users to access or use the Services, that is due, in whole or in part, to any: (a) Customer’s or its Authorized User’s internet connectivity; (b) a Force Majeure Event; (c) failure, interruption, outage or other problem with any software, hardware, system, network facility or other matter not supplied by Provider or Third Party Provider pursuant to this Agreement; and (d) disabling, suspension, or termination of the Services pursuant to Section 2(f).
1. Support. The Services hereunder entitle Customer to the support services described on Exhibit “A” for the Term. Provider may amend the support exhibit from time to time in its sole discretion.
2. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Except in the event of its gross negligence or willful misconduct or a failure of its data security program, PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
Fees and Payment.
Fees. Customer shall pay Provider the fees (“Fees”) as set forth in Exhibit “A” without offset or deduction or withholding for any reason (other than as permitted in the event of a bona fide dispute pursuant to this Section 6(a)). Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for sixty (60) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. Notwithstanding the provisions of this Section 6, Customer has the right to dispute in good faith the invoiced Fees, and the remedies set forth in the Section 6(a)(i) and Section 6(a)(ii) shall not apply during such time as Customer and Provider work to resolve the Fees dispute. In the event of a Fees dispute, Customer will pay the undisputed amount, and may withhold the disputed amount until the Fee dispute is resolved. Customer and Provider will diligently proceed to resolve such Fee dispute within sixty (60) days of the date of the invoice that is the subject of the Fee dispute.
1. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
2. Auditing Rights and Required Records. Each Party agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining (i) amounts due hereunder and (ii) the other Party’s compliance with its obligations under this Agreement. Each Party may, at its own expense, on reasonable prior notice, periodically inspect and audit the other Party’s records with respect to matters covered by this Agreement. Such audit shall occur during the audited Party’s normal business hours and will not cause undue burden to the audited Party. In the case of a physical audit on a Party’s premises, the auditing Party shall comply with security and safety protocols of the audited Party. If an inspection or audit reveals either that (i) the audited Party has failed to comply with its obligations under this Agreement or (ii) in the case of the Customer, that it has underpaid Provider with respect to any amounts due and payable during the Term, then in either such case, the audited Party shall promptly cure the non-compliance. In the case of underpayment, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a). In the case of an overpayment, Provider shall promptly remit all excess amounts to Customer. In the case of other non-compliance, the non-compliant Party shall take all reasonable steps to cure immediately such non-compliance, and shall regularly report progress on such cure to the other Party. Each Party shall pay for its own costs of the audit; provided, however, in the event of an overpayment or underpayment that is determined to equal or exceed 5% for any quarter, the audited Party shall pay for the costs of the audit. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
3. Fee Increases. Provider may increase Fees after the first contract year of the Term, by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year and Exhibit “A” will be deemed amended accordingly; provided, however that increases in Fees increases for a Renewal Term (as hereinafter defined) shall not exceed 5% over the Fees paid in the preceding Term.
Security.
Information Security. Provider will shall use commercially reasonable technology, industry best practices, and efforts to ensure the integrity and security of all Personal Information with respect to theft, piracy, unauthorized access, copying, duplication, and distribution. Without limiting the generality of the preceding sentence, to the extent Provider is in possession of any Personal Information in its provision of Provider Services hereunder, Provider represents that it has implemented and, throughout the term of these Terms, shall maintain security measures that comply with Graham Leach Bliley Act (“GLBA Act”) requirements and with SOC 2 Type 2 requirements, in addition to or as part of the non-disclosure and confidentiality obligations of this Section 6, designed to: (i) protect the security and confidentiality of Personal Information; (ii) protect against any anticipated threats or hazards to the security or integrity of such Personal Information; and (iii) protect against unauthorized access to or use of Personal Information that could result in substantial harm or inconvenience to any of Customer’s “customers” or “consumers” (as such terms are defined in the GLB Act.). Provider agrees that with respect to Personal Information that it receives, it will: (i) process, use, maintain, and disclose Personal Information in accordance with this Agreement or as otherwise expressly directed in writing by Customer and not for any other purposes; (ii) maintain an effective information security program that is designed to keep Personal Information confidential and take appropriate administrative, technical and physical measures to secure and protect Personal Information against unauthorized, unlawful, or accidental access, disclosure, transfer, destruction, loss or alteration; (iii) not disclose or make such Personal Information available to subcontractors or Third-Party Providers without entering into an agreement in writing with the subcontractor or Third-Party Provider whereby such party agrees to comply with, and treat Personal Information as confidential and to comply, to the extent applicable with Provider’s vendor management program as referenced in Section 3(d); (iv) use Personal Information in accordance with applicable federal and state privacy and data protection legislation, and in the case of any legal or regulatory obligation to disclose Personal Information, to the extent it can, it will notify and cooperate with Licensee to limit any disclosure to the minimum required by law and, to the extent possible, request that such information be kept confidential; and (v) notify Licensee within forty eight (48) hours following Provider’s confirmation of any confirmed unauthorized access of Personal Information on the Provider’s system.
1. Data Breach Procedures. Provider shall implement and will maintain a business continuity and disaster recovery plan (the “Disaster Plan”) consistent with industry standards and practices. The Disaster Plan shall be made available for review by Customer upon request made no more than once annually. Provider shall implement the procedures required under such Disaster Plan on the occurrence of a data breach (as defined in such Disaster Plan).
2. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; provided, however, that Customer makes no warranty or representation as to the accuracy of such Customer Data; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
3. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed; provided, however, that the Receiving Party may retain one set of the Disclosing Party’s Confidential Information to demonstrate compliance with the terms of this Agreement (such Party to comply with the requirements of this Section 6 to preserve the confidentiality of such Confidential Information). Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. The Provider shall cause each Third-Party Provider receiving directly or indirectly the Customer’s Confidential Information to execute a confidentiality agreement with terms no less restrictive than those set forth in this Section 8.
Intellectual Property Ownership.
Provider Materials. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all Intellectual Property Rights, in and to the Provider Materials and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials.
1. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby irrevocably grants to Provider a non-exclusive, royalty-free, worldwide license to use the Customer Data, as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use Customer Data incorporated within the Aggregated Statistics.
2. Modifications. As between Customer and Provider, Provider shall own all right, title and interest in and to any permitted modifications and enhancements made from or to the Provider Materials on behalf of Customer. Customer does not obtain any rights, title or interests, including but not limited to Intellectual Property Rights, in the Provider Materials, as modified or enhanced. Customer hereby assigns to Provider all of its right, title and interest in and to the modifications and enhancements, including any Intellectual Property Rights therein. Customer also agrees to promptly execute all assignments and similar documents as reasonably requested by Provider.
Limited Warranty and Warranty Disclaimer.
Provider warrants that the Services will conform in all material respects to the service levels set forth in Exhibit “A” when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit “A”. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS; PROVIDED, HOWEVER, THAT PROVIDER AGREES TO PRESERVE AND, WHEN REQUESTED BY CUSTOMER, TO EXERCISE ALL WARRANTY RIGHTS WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS.
1. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY SPECIFICIALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. EXCEPT AS OTHERWISE STATED IN EXHIBIT A, ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS-IS”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS; HOWEVER, THE FOREGOING SHALL NOT LIMIT PROVIDER’S AGREEMENT, WHEN REQUESTED BY CUSTOMER PURSUANT TO SECTION 10(a), TO EXERCISE WARRANTY RIGHTS WITH RESPECT TO THE THIRD-PARTY MATERIALS.
Indemnification.
Provider General Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging (x) gross negligence or willful misconduct by Provider or a Third-Party Provider or (y) breach by Provider of its obligations under this Agreement or with respect to the Services or by a Third-Party Provider of its obligations with respect to a Third-Party Product.

(b) Provider Infringement Indemnification.

(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) arising out of or resulting from, or alleged to arise out of or result from the Services (including Third-Party products), or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights or trade secrets.(ii) If a Third-Party Claim is made pursuant to Section 11(b)(i), Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement with respect to the affected component or part, effective immediately on written notice to Customer. In such event, Provider shall refund all Fees paid in advance with respect to such terminated Services. If the termination of the infringing Services adversely affects other Services provided, then the Customer may terminate those Services. In such event the Provider shall refund all Fees paid in advance with respect to such terminated affected Services.

This Section 11 will not apply to the extent that the alleged infringement arises from: (A) access to or use of the Provider Materials in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Provider Materials other than (i) by or on behalf of Provider or (ii) with Provider’s written approval; (C) failure to timely implement any modification, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; or (D) Customer Data. For purposes of Section 11(b), Third-Party Products shall be deemed part of the Services, and any data, software, hardware, equipment, or technology incorporated into Third-Party Products shall be deemed to have been authorized by Provider.

(c) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim arising out of or resulting from, or alleged to arise out of or result from: (A) processing of Customer Data by or on behalf of Provider in connection with the Services rendered pursuant to this Agreement; (B) gross negligence or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement (C) use of the Services in a manner not authorized by this Agreement; (D) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing (it being agreed that (i) data, software, hardware, equipment or technology provided by a Third Party Provider and (ii) Customer Systems shall be deemed authorized by Provider for purposes of this Clause (D)); or (E) modifications to the Services not made or authorized by Provider. Customer may not settle any Third-Party Claim against Provider on any terms or in any manner that adversely affects the rights of Provider without Provider’s prior written consent. Provider reserves the right, at its option, to participate in the defense of any Third-Party Claim thereof by counsel of its own choice, in which event such additional counsel shall be at Provider’s cost and expense.

Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Insurance. Contemporaneously with its execution of this Agreement Provider will furnish Customer with a certificate of insurance evidencing, at a minimum, the following insurance requirements, and continuously throughout the Term and for a period of one year thereafter, shall maintain: (i) cyber security insurance commercial general liability insurance (CGL) with coverage of not less than $1,000,000 in the aggregate and per occurrence; and (ii) errors and omissions coverage, with coverage of not less than $1,000,000 in the aggregate and per occurrence. The cyber security insurance will be procured at Provider's expense from an insurer that maintains an A.M. Best Rating of A- or higher. By requiring insurance, the Customer does not represent that the coverages and limits will be adequate to protect Provider, and such coverages and limits will not be deemed a limitation on Provider's indemnification obligations to Customer under this Agreement.

Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE TIME THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF DAMAGES AND LIABILITY SHALL NOT APPLY TO: (I) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIATY UNDER THIS AGREEMENT; (II) THIRD-PARTY INTELLECUTAL PROPERTY INFRINGEMENT CLAIMS; (III) CUSTOMER’S OBLIGATION TO PAY FEES; OR (IV) WILLFULL MISCONDUCT BY THE LIABLE PARTY.
Term and Termination.
Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one year from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
1. Termination. In addition to any other express termination right set forth in this Agreement:
  1. Provider may terminate this Agreement, effective on twenty (20) day’s prior written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Sections 2(c), 7 or 8;
  2. Customer may terminate this Agreement, effective on twenty (20) days’ prior written notice to Provider, if (A) A Third Party terminates its services due to breach by Provider breaches its obligations to such Third-Party Provider; or (B) a Financial Breach has occurred under Section 14(k); or (D) Provider breaches any of its obligations under this Agreement.
  3. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  4. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law which petition is not vacated with forty five (45) days of its filing; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
2. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider Materials. Without limiting its obligations under Section 7, each Party shall delete, destroy, or return all copies of the other Party’s Confidential Information and certify in writing to the other Party that such Party’s Confidential Information, including the Provider Materials in the case of Customer’s obligations, have been deleted or destroyed. The foregoing obligation shall not, however, required Provider to destroy the Aggregated Statistics to the extent the same contains any Confldiential Information of Customer. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
3. Survival. This Section 13(d) and Sections 1,4, 6, 7, 9, 9, 11, 12, and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
2. Force Majeure. In no event shall either Party be liable to the other, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by a Force Majeure Event. Customer’s obligations to pay Fees that arise by virtue of Provider’s performance of Services which have been delayed due to a Force Majeure Event shall be suspended until such time as the delayed Services are performed.
3. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Indiana. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Indiana in each case located in the city of Fort Wayne and County of Allen, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
6. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
7. Export Regulation/ Compliance With Laws. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US. In performing its obligations under this Agreement, each Party shall comply with all applicable laws, rules and regulations.
8. US Government Rights. Each of the Documentation and the software components that constitute 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 such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 or, in the case of Customer, Section 2(c), could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
10. Financial Reporting. Upon Customer’s request and, in any event, within sixty (60) days following upon completion of Provider’s annual financial statement audit (each such date being a “Financial Verification Date”), Provider agrees to provide to Customer the following information: audited balance sheet and income statement for the preceding year, certified by an accountant of recognized standing and prepared in accordance with generally accepted accounting principles consistently applied. All such financial information shall be prepared in accordance with generally accepted accounting standards consistently applied. If on a Financial Verification Date: (i) either the Provider fails to provide such information in a timely manner, or (ii) the financial information is not accurate or complete, or (iii) the Provider has not received an unqualified opinion from its accounting firm within 120 days following the end of its fiscal year or completion of its annual audit (each a “Financial Breach”), then Customer may declare this Agreement in breach. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

CAPACITY ENHANCEMENT

AND DEVELOPMENT SERVICES, LLC

DBA CED SERVICES AND CLUB 720

by:_______________________________

Name: ____________________________

Title: _____________________________

By:_______________________________

Name: ____________________________

Title: _____________________________

Exhibit a

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.

Authorized Users (Section 2(a)): 2 Authorized Users

Third Party Products & Third Party Providers (Section 4):

Information Services provided by Equifax Information Services LLC to Provider
- Applicable Warranty Provisions related to Third-Party Services provided by Equifax.

Services Level (Section 5(a)): Financial Institution Service Level. See below description of all service levels to explain what is offered with this service level.

The Financing Institution Service Level terms set forth above are as of the Effective Date and control unless Customer otherwise agrees or unless changes are required to comply with applicable law.

Support Services (Section 5(b)): 24/7 support for mobile app users who use the organization code of the preferred program partner.

Pricing (Section 6): $999 per year; Payment is due prior to commencement of the services; billed annually.

Additional representations or guarantees regarding uptime or availability of the Services (Section 10(a)): None.

Exception to Third-Party Materials being provided as-is (Section 10(b)): None.