Last Updated: December 6, 2024

1. 
   
   1. THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH COGNATA TECHNOLOGIES LLC’S QOOPER MENTORING SOFTWARE (“COGNATA TECHNOLOGIES”, “QOOPER”, “QOOPER MENTORING SOFTWARE”, ”QOOPER MENTORING & LEARNING SOFTWARE”, ”COMPANY” OR “WE”), GRANTS TO YOU (“YOU” OR “CUSTOMER”) THE RIGHT TO USE THE QOOPER CLOUD-BASED PRODUCTS AND SERVICES IDENTIFIED AND ORDERED IN ANY ORDER FORM (“ORDER FORM”) AND PAID FOR BY YOU (THE “SERVICE”). EACH PARTY MAY BE INDIVIDUALLY REFERRED TO AS A “PARTY” OR COLLECTIVELY AS “THE PARTIES.” BY SIGNING AN ORDER FORM, ACCESSING, RECEIVING, AND/OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN NO EVENT MAY YOU ACCESS, RECEIVE OR OTHERWISE USE ANY QOOPER PRODUCT OR SERVICE WITHOUT AGREEING TO THESE TERMS (OR ANOTHER AGREEMENT AGREED TO IN WRITING BY QOOPER).
      
      Usage Rights.
      1. Subject to this Agreement, Company grants to Customer a limited, nonexclusive right, solely during the Term  to use the Service, including any documentation specifically made available by Company for use with the Service, in accordance with the specific number and type of Users specifically ordered and paid for by Customer via the Order Form (“Usage Limits”).
      2. Customer shall be permitted to designate the employees, students, alumni, mentors, mentee, and members who are authorized to use the Service (“Users), provided that such usage is in accordance with this Agreement. Customer shall be responsible for the acts of the Users (including breaches of this Agreement caused by the Users).
   2. Service Restrictions and Guidelines.
      1. Customers may use the Service for its internal and external purposes as contemplated by this Agreement and the applicable Order Form, and only in accordance with the Usage Limits. In the event of Usage Limits and the Customer exceeds its Usage Limits, Customer will incur and be billed for additional fees for such excess usage on a pro-rated basis against the fees set forth in the Order Form. Customers will be provided a 30-day notice of such excess usage prior to being charged additional fees. 
      2. Customer shall not: (i) distribute, rent, lease, sublicense or transfer the Services, (ii) use the Services in a service bureau, outsourcing or time-sharing environment, or otherwise commercially exploit the Services; (iii) use the Service to send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Customer’s customers and prospective customers as contemplated by the Service; (iv) harvest, collect, gather, or assemble information or data regarding other users of the Service without their consent; (v) transmit through or post on the Service unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (vi) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Service; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (viii) attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; (ix) harass or interfere with another user’s use of the Service; or (x) directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets, or know-how in or underlying the Service.
      3. Use of the Service will be subject to the Service’s Terms of Use (https://qooper.io/terms-of-use) and Privacy Policy (https://www.qooper.io/user-privacy-policy/), which Customer will not delete nor modify without Company’s consent, except that Customer may supplement such policy and terms with additional policies and terms required by Customer.
   3. Company Responsibilities.
      1. Customer warrants that it has, and will continue to have through the Term, the right to transfer, and/or provide access to, the Customer Data (including personal data) to Qooper for processing in accordance with the terms of the Agreement and all applicable laws. Without limiting the foregoing, to the extent Customer elects to integrate any third-party products or services with the Service, then Customer warrants that it has, and will continue to have through the Term, all rights to enable and permit the transfer of Customer Data (including personal data) between the Service and such third-party products or services.
      2. Customer acknowledges and agrees that the Service is not intended for use or transmission of any Sensitive Data, and it will not use the Service for the transmission, storage, or communication of any of the following: (i) social security number, passport number, driver’s license number or similar identifier (or any portion thereof), (ii) information regarding a person’s religious or political affiliation (iii) genetic, biometric, health, or medical information (iv) credit or debit card number, credit information, financial account or other financial information of a person; or (v) confidential information of Customer’s customers (collectively, “Sensitive Data”). 
   • Service Levels and Support.
   1. Company will make commercially reasonable efforts to make the Service available to the Customer substantially in accordance with the Service Level Agreement (“SLA”), attached as Exhibit A.
   2. Company will provide the support services ordered by Customer and described on the applicable Order Form (“Support Services”).
   1. Intellectual Property and Ownership.
      1. All rights, title and interest in the Service , including any and all intellectual property rights related thereto, are the sole property of Company or its licensors. All rights in and to the Service not expressly granted to Customer in this Agreement are hereby reserved by Company and its licensors.
      2. Suggestions and Feedback. Company shall have the right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer relating to the Service to the extent it does not include Customer Data.
   2. Customer Data.
      1. As between Customer and Company, all rights, title and interest in all Customer Data, including any and all intellectual property rights therein, are the sole property of Customer, and except as expressly provided for in this Agreement, no rights are granted to Company in Customer Data. “Customer Data” means all data or information transmitted or generated by Customer through use of the Service. Customer Data also includes email, name, current position, organization, and other fields used on Qooper by the Customer. 
      2. To the extent the Parties enter into a Data Processing Addendum, the use of Customer Data is governed by the Data Processing Addendum, which is hereby incorporated into this Agreement by reference as applicable. To the extent there is a conflict between the terms of this Agreement and the terms of the Data Processing Addendum, the terms of the Data Processing Addendum will govern solely with respect to the subject matter therein. Customer acknowledges and agrees solely in connection with Company’s provision of the Service, Company is hereby granted a limited, revocable, nonexclusive, and royalty-free license, solely during the Term to host and maintain Customer Data for the strict limited purposes of delivering the Service to Customer and supporting Customer’s use of the Service as described herein. (By way of example, Company is permitted to store, maintain and display within Customer’s Service platform any logos provided by Customer to ‘brand’ Customer’s instance of the Service platform.)
      3. Company shall implement and maintain commercially reasonable administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data.  Company shall notify Customer without undue delay, and in any event no later than 72 hours, upon Customer becoming aware of loss or unauthorized access, use or modification of Customer Data (a “Customer Data Breach”). Company shall provide Customer with sufficient information to allow Customer to meet its obligations under applicable data privacy laws. Company at its sole expense shall take commercially reasonable measures to remediate and mitigate the effects of a Customer Data Breach. 
      4. Upon request by Customer at any time during the Term and in any event within thirty (30) days of the date of termination or expiration of this Agreement, Company will make Customer Data available to Customer for download and shall otherwise return all Customer Data to Customer, and Company shall remove all Customer Data from any media and shall securely destroy or securely erase such media. Additionally, during the Term of the Agreement and as part of the Service, Company shall provide Customer the ability to obtain extracts of Customer Data. 
      5. Anonymized Data. Company may gather statistical data, analytics, trends and other aggregated or otherwise de-identified data derived from Customer and its Users’ use of the Service provided that such data does not allow Customer Data to be separated from the aggregated data and identified as relating to Customer or its Users (“Anonymized Data”), and Company may use this Anonymized Data to analyze and understand how the Service is used. For the avoidance of doubt, Anonymized Data does not include Customer Data or any personal information.
   3. Fees & Payment.
      1. Invoicing & Payment. Company shall provide an annual invoice to Customer detailing all fees due under any applicable Order Forms and SOWs for the Services, including any fees for excess usage (“Fees”).  Customer may order additional usage within a Term and shall receive a invoice for additional pro-rated fees at the time of such order. Undisputed charges due shall be payable net 30 unless otherwise stated in the applicable Order Form or SOW. To the extent Customer disputes any fees within an invoice, it shall provide notice within thirty (30) days of receipt of such invoice. Any fees not disputed within this time period shall be considered undisputed. The Parties agree to work in good faith to resolve such disputed fees. Fees are non-refundable except as specifically set forth in this Agreement.
      2. Other Service Fees. Any work outside the scope of an Order Form requested by Customer shall be subject to pricing and terms to be mutually agreed by the Parties, whether in the form of a statement of work, order form or other document.
      3. Purchase Orders. Notwithstanding anything to the contrary in any subsequent writing, in the event of any conflict between a Customer PO and this Agreement, then this Agreement shall prevail.
      4. Overdue Payments. Payment of any undisputed fees not received from Customer by the due date may, at Company’s discretion, accrue late charges at the rate of one point five percent (1.5%) of the outstanding balance per year, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. The Customer shall pay all reasonable costs of collection of unpaid Fees, including attorneys’ and collection agencies’ fees.
      5. Suspension of Service. If Customer’s account is sixty (60) days or more overdue for any undisputed Fees and Customer does not pay such Fees within fifteen (15) days of notice of such failure to pay, then, in addition to any of its other rights or remedies, Company shall have the right to suspend the Service until such amounts are paid in full.
      6. Taxes. Company’s fees are exclusive of any and all local, state, federal, and foreign taxes, levies, or duties of any nature including any VAT taxes (“Taxes”), and Customer is responsible for payment of all Taxes, excluding only taxes based on Company’s income, employees, property, and gross receipts. If Company has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
      7. Billing and Contact Information. Customer shall ensure that Customer’s license administrator maintains complete, accurate, and up-to-date Customer billing and contact information via the online Customer account section of the Service at all times.
   4. Confidentiality
      1. Definition of Confidential Information. As used herein, “Confidential Information” means all information marked “confidential” or “proprietary” at the time of disclosure or that otherwise should be understood by a reasonable person to be confidential in nature, provided by a Party or on its behalf (“Disclosing Party”) to the other Party (“Receiving Party”),including without limitation this Agreement (except to the extent needed to be disclosed to its advisory members, attorneys, accountants, or to enforce the terms hereof). Each Party’s Confidential Information shall include any of its financial information, customer lists, personnel information, customer data, business and marketing plans, technology and technical information, product designs and information, developments, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Regardless if marked as such, Company’s Confidential Information includes the Company Technology and the Service, and Customer’s Confidential Information includes the Customer Data. Confidential Information shall not include any information that: (i) is or becomes generally known to the public, or is or becomes generally known in the industry, without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) the Receiving Party can show was independently developed by the Receiving Party and was not acquired directly or indirectly from the Disclosing Party; or (iii) is rightfully received by the Receiving Party from a third party who obtained such Confidential Information without any obligation of confidentiality.
      2. Each Party will, and will cause each of its personnel and agents to: (i) not disclose the other Party’s Confidential Information to any third party, (ii) not use the other Party’s Confidential information for any purpose other than to perform its obligations or exercise its rights under this Agreement, and (iii) protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. Notwithstanding this Section, each Party shall be able to disclose Confidential Information of the other Party to its personnel and agents (including, without limitation, Users) who have a need to know for the Receiving Party to perform its obligations or exercise its rights under this Agreement, provided such personnel or agents have been previously advised of the confidential nature of the information and have written obligations of confidentiality to the Receiving Party.
      3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party (including any Customer Data), it shall (where legally permitted) provide the Disclosing Party with prompt prior written notice of such compelled disclosure to permit the other Party to seek judicial protection and/or confidential treatment of such information, and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. Further, the Receiving Party shall disclose only that Confidential Information that is required to be disclosed.
      4. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 8, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek equitable relief, including an injunction to enjoin such acts or specific performance, it being specifically acknowledged by the Parties that any such violation may give rise to irreparable injury to the other Party such that monetary remedies are inadequate.
   5. Warranties & Disclaimers.
      
      
      1. Mutual Representations and Warranties. Each Party represents and warrants that it has full right, power, and authority to agree to this Agreement and to perform its obligations and duties under the Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such Party or any judgment, order, or decree by which such Party is bound.
      2. Customer Representations and Warranties. Customer represents and warrants that: (i) its use of the Service, including any Customer Data provided by Customer for use with the Service or handling by Company, will: (1) comply with any applicable law or regulation, (2) not cause a breach of any agreement with or rights of any third party (including without limitation the rules of any social network platform or any data subject rights) and (3) not unreasonably interfere with use of services offered by the Company to third Parties; and (ii) it shall use the Service strictly in accordance with this Agreement and other written instructions (e.g., product documentation, release notes, mutually agreed to SOWs, etc.) provided by Company. 
      3. Company Representations and Warranties. Company represents and warrants that (i) its Service will comply with applicable laws and regulations and the terms of this Agreement; (ii) Company is authorized, or has the right, to license or otherwise grant the use of the Service and any third-party software contained or otherwise incorporated into the Service to Customer; and (iii) the Service and Customer’s use of the Service does not infringe, misappropriate, or violate any third party’s intellectual property rights or any other third party proprietary right.
      4. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, ALL COMPANY PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED SOLELY ON AN “AS IS” BASIS. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
   6. Indemnification
      1. Indemnification by Company. Company shall defend, indemnify, and hold Customer harmless against any loss or damage, expense or liability (including without limitation reasonable attorney’s fees and court costs and related legal expenses incurred in defending against such claim) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party (i) alleging that the Service or the Company Technology infringes, misappropriates or otherwise violates any patent, copyright, trademark, or other intellectual property rights of a third party; or (ii) arising from Company’s breach of its Confidentiality obligations (including with respect to Customer Data). Company shall have no obligations to Customer under this Section 10.1 to the extent such Claims arise from Customer’s or its User’s breach of this Agreement or from the combination of the Service with any of Customer’s products, services, hardware or business processes (unless expressly authorized by Company or contemplated by this Agreement). If any Claim is made or, in Company’s sole judgment, is likely to be made, Company may, at its discretion, either, at no additional cost to Customer: (1) procure for Customer the right to continue to use the Service, as such use is specifically provided for in this Agreement, (2) replace or modify the Service or Company Technology to avoid infringement, or (3) terminate this Agreement upon written notice to Customer, and refund any paid but unused fees to Customer.
      2. Indemnification by Customer. Customer shall defend, indemnify, and hold Company harmless against any loss or damage, expense or liability (including without limitation reasonable attorney’s fees and court costs and related legal expenses incurred in defending against such claim) incurred in connection with Claims made or brought against Company by a third party (i) alleging that the Customer Data misappropriates or otherwise violates any intellectual property rights or other rights of a third party; (ii) arising from Customer’s use of the Service in a manner inconsistent with this Agreement; or (iii) arising from Customer’s breach of Section 2.
      3. The indemnified Party shall: (i) promptly give written notice of the Claim to the indemnifying Party (provided, however, that failure to so notify shall not relieve indemnifying Party of its liability unless the indemnifying Party is prejudiced thereby); (ii) give indemnifying Party sole control of the defense and settlement of the Claim (provided that indemnifying Party may not settle or defend any Claim unless it unconditionally releases indemnified Party of all liability, does not impose any financial obligation on indemnified Party or require indemnified Party to take or refrain from taking any action); and (iii) provide to indemnifying Party, at indemnifying Party’s sole cost, all reasonable assistance requested by indemnifying Party in the defense and settlement of the Claim.
   7. Limitation of Liability.
      
      EXCEPT FOR A Party’S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER Party BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

   EXCEPT FOR A Party’S LIABILITY FOR PAYMENT OF FEES, INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, EACH Party’S CUMULATIVE, TOTAL LIABILITY TO THE OTHER Party FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

   NOTWITHSTANDING THE FOREGOING, COMPANY’S MAXIMUM LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT SHALL NOT EXCEED TEN TIMES (10X) THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

   1. Term, Termination & Suspension.
      1. 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 as indicated in the Order Form (the “Initial Term”). This Agreement will renew for additional successive terms as indicated in the Order Form (each a “Renewal Term” and together with the Initial Term, the “Term”), provided that a Party may provide notice of non-renewal at least 30 days’ prior to the end of a Renewal Term.  For the avoidance of doubt, the Parties obligations shall continue through to the end of such Renewal Term.
      2. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other Party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
      3. Effect of Termination. Upon the effective date of termination of this Agreement: (i) Company will immediately cease providing the Service to Customer; and (ii) any and all undisputed payment obligations of Customer for Service provided through the date of termination will immediately become due. Within thirty (30) calendar days of termination or expiration of this Agreement, or at the Disclosing Party’s request, each Party will return or securely destroy all Confidential Information of the other Party (as the other Party may elect) in its possession or control (including all copies thereof, in any media). In addition, each Party shall purge its computer systems and database of the other Party’s Confidential Information. Notwithstanding the foregoing return and destroy obligations, a Party (a) may retain copies of the other Party’s Confidential Information in order to comply with any applicable legal or accounting record keeping requirements; and (b) shall not be required to return or destroy any electronic backups of the other Party’s Confidential Information made in the normal course of business, provided the such Party continues to comply with all of the confidentiality and security obligations in this Agreement with respect to such information.
      4. Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily or permanently suspend Customer's and any User's access to any portion or all of the Services if Company reasonably determines that: (i) there is a threat or attack on any of the Services; (ii) Customer's or any User's use of the Services disrupts or poses a security risk to the Company  or to any other customer or vendor of Company; (iii) Customer, or any User, is using for fraudulent activities, illegal activities, or activities that violate any relevant law or terms of this agreement; or (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. Such suspension shall remain until any of the issues in parts (i)-(iv) have been reasonably resolved in Company’s reasonable discretion.
   2. Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 2, 4, 6, 7, 9(d), 11, 12, and 14(d) through 14 (o)
   3. General Provisions
      1. Professional Service. Customer may request Company to provide certain professional services that are ancillary to the Service, such as hiring professional trainers. In such event, the Parties will enter into an Order Form that refers to and is subject to this Agreement and sets forth the scope and description of the Professional Service, deliverables, Parties’ responsibilities, completion dates, fees and payment terms, and any other relevant information.
      2. Publicity. (i) Company and its affiliates will be permitted to use Customer’s name and logo on their websites, in testimonial content, in press releases, and within marketing materials, provided such use and display is in accordance with Customer’s trademark usage guidelines communicated to Company from time to time, and (ii) Company and its affiliates may issue press releases relating to this Agreement.
      3. Relationship of the Parties. The Parties’ relationship is strictly that of independent contractors and this Agreement do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party has the power to bind the other, make any warranties or representations, or incur, assume or create obligations on the other’s behalf without the other’s prior written consent and each Party agrees that it will not perform any act or omission to the contrary.
      4. No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
      5. Notices. All notices under this Agreement shall be in writing and shall be delivered to the address of the Customer account by means evidenced by a delivery receipt or by email. Notice shall be deemed to have been given upon: (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the Party which sent the notice receives confirmation of receipt by the applicable method of transmittal, or (iv) if sent by certified or registered mail, within five (5) days of deposit in the mail. Notices to Company shall be addressed to the attention of its General Counsel.
      6. Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver by a Party of compliance by the other Party with any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement (whether or not similar), or a continuing waiver or a waiver of any subsequent breach by a Party of a provision of this Agreement.
      7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.
      8. Assignment. Neither Party may assign any of its rights or obligations under this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement, without consent of the other Party in connection with a Change in Control; provided, however, that the assignee to which this Agreement is assigned must agree in writing to be bound by the terms and conditions hereof and the assigning Party shall notify the other Party of such assignment within a reasonable period of time following the Change in Control. Furthermore, if this Agreement (or any Order) provides for an unlimited use or enterprise license, an assignment, Change of Control, acquisition or other business expansion by Customer may result in an increase in fees. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties hereto, their respective successors and permitted assigns.
      9. Governing Law/Venue. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Illinois, without regard to its conflict of law’s provisions. The federal and state courts located in the Northern District of Illinois or Cook County, Illinois shall have jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non convenience or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
      10. Export Control Laws. Each Party shall comply with United States and foreign export control laws or regulations applicable to its performance under this Agreement. Without limiting the foregoing, both Parties represent and warrant that (a) it is not listed on any US government list or prohibited or restricted Parties; (b) it is not subject to any UN, U.S., EU, or any other applicable economic sanctions or trade restrictions; and (c) it does not have operations in a country subject to comprehensive U.S. trade sanctions.
      11. Force Majeure. Neither Party will be deemed in breach of this Agreement if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks, but only if (a) such Party gives prompt written notice to the other Party of the force majeure event, and (b) such failure or delay results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. The time for performance will be extended for a period equal to the duration of the force majeure event.
      12. Entire Agreement and Construction. This Agreement, any SOWs, and the Order Form(s) constitute the entire and exclusive agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. In the event of any conflict between the provisions in this Agreement, any SOW, and the Order Form(s), the terms of the Order Form will take first precedence, then this Agreement will take second precedence, and any SOW will take third precedence, provided that any terms of an Order Form that conflict with this Agreement will take precedence solely in connection with those specific services set forth in such Order Form and the delivery thereof. In all other instances, this Agreement shall govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order issued by Customer or in any other Customer order documentation shall be incorporated into or form any part of this Agreement.

   EXHIBIT A

   SERVICE LEVEL AGREEMENT – SCOPE OF SUPPORT SERVICES
   
   This Service Level Agreement (“SLA”) is subject to the terms of the applicable Qooper Software as a Service Terms and Conditions between Cognata Technologies LLC. (“Qooper”) and Customer (“Agreement”). We reserve the right to change the terms of this SLA in accordance with the Agreement.
   
   
   

   Availability

   Definitions. The following definitions shall apply to this SLA. Capitalized terms, not otherwise defined herein, will have the meanings specified in the Agreement. “Downtime” means the time during which the Service Offering is unavailable (as measured from Qooper’s production data center internet connection points), excluding Force Majeure Events, Scheduled Maintenance, and Scheduled Updates. “Force Majeure Events” means events beyond Qooper’s reasonable control, which include, but are not limited to, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service and any other degradations of the Service caused by third Parties. “Service Availability” is a ratio calculated each month (based on 24-hour days for the number of days in the applicable month) that the Service is available to Customer (excluding Downtime from Force Majeure Events, Scheduled Maintenance, or Scheduled Updates), as measured from Qooper’s production data center internet connection points, as follows: “Service Availability” = ((total minutes in calendar month – total minutes of Downtime) / total minutes in calendar month) x 100. “Scheduled Maintenance” means scheduled maintenance performed by Qooper to keep the Service Offering operating optimally. “Scheduled Update” means a scheduled deployment of program code introducing a new version, feature, or functionality of the Service.

   Service Availability. During the Service Term, Qooper will provide the Service 24 hours per day, seven days per week, 365 days per year with a Service Availability of 99.5% (the “Availability Commitment”) as long as the users have an internet connection.

   SLA Credits. If in any month, the Service Availability does not meet the Availability Commitment, then Qooper shall provide, a credit (“SLA Credit”) in accordance with the table below. Each SLA Credit will be calculated by multiplying (i) the prorated subscription Service (or license) fee charged for the affected month by (ii) the applicable SLA Credit percentage set forth in the table below.
   
   

   SERVICE AVAILABILITY	SLA CREDIT PERCENTAGE
   99.5%	0.0%
   < 99.5% but >= 98.0%	5.0%
   < 98.0% but >= 95.0%	10.0%
   < 95.0% but >= 90.0%	15.0%
   < 90.0%	30.0%

   
   
   

   SLA Credit Requests and Application. In order to receive an SLA Credit, Customer must make a request for SLA Credit by filing a support request via email (at support@qooper.io) within thirty (30) days of the last calendar day of the month in which Service Availability was less than the Availability Commitment. Qooper will review the request and if Qooper confirms the Downtime, then the Credit will be applied within thirty (30) days of Qooper’s receipt of Customer’s Credit request. SLA Credits are exclusive of any applicable taxes. Any Credits issued pursuant to this SLA will be applied towards the invoice for the month following the calendar day on which Qooper receives Customer’s SLA Credit request. SLA Credits will only be applied toward the Service subscription fee for the applicable instance of the Service impacted by the Downtime and cannot be used to offset any fees incurred by Customer for professional services, implementation, consulting, training, or other products or services. In the event that Customer is entitled to an SLA Credit after termination of the Agreement, Qooper will issue Customer a refund in the amount of the Credit within thirty (30) days of the termination effective date.

   SLA Credit Limitations. Customer is not eligible for any SLA Credits if: (i) Customer is delinquent in its payment obligations; (ii) Customer exceeds the maximum community or other usage limits allowed under the Agreement; or (iii) the Downtime attributable to Customer’s acts or omissions (or by the acts or omissions of Customer’s representatives or users) or use of the Service in breach of the Agreement. The SLA Credits and the termination rights specified above are the Customer’s sole and exclusive remedies for any Downtime occurring during the Service Term.

   Support Issues Production Severity Levels – Response and Escalation
   Qooper has extensive Crashlytics and Analytics built-in that allows the Qooper team to be notified of each and every issue immediately as they happen along with a report. In such cases, the Qooper team is able to diagnose the issue and prepare an action plan to solve the issue.

   In the event of a support issue, the Customer shall first reasonably self-diagnose the support issue and suggest to Qooper an appropriate Severity level designation. Qooper shall validate Customer’s Severity Level designation, or notify Customer of a proposed change in the Severity Level designation to a higher or lower level with an explanation for the proposal.

   Response Time as described below is the period from the time the Production ticket was logged in the support ticket with Qooper until Qooper responds to Customer and/or escalation within Qooper, if appropriate. Because of the widely varying nature of issues, it is not possible to provide specific resolution commitments.

   P1 - Critical Severity Level:
   
   Definition: The Incident stops most of the business or multiple organizations. The issue is occurring in a production environment. The Incident impacts many users across multiple organizations or programs and can cause user disruption or data collection problems. There is no workaround for the issue.
   
   Response Commitment: Qooper will respond within two (2) hours of notification of the case.
   
   Resolution: Qooper will work to resolve the problem until the Service is returned to normal operation. Customer will be notified of status changes.
   
   Escalation: If the problem has not been resolved within four (4) hours, the escalated problem will have higher priority than ongoing support, development, or operations initiatives.
   
   Customer Response Commitment: Customer shall remain accessible by phone/email for troubleshooting from the time a Severity P1 issue is logged until such time it is resolved.
   
   P2 - High Severity Level:
   
   Definition: One or more users can’t follow a key process, or a large part of the Business suffers a major issue. Customer has problems with some of the users, though is isolated to just one organization or program. Can access the platform on at least one channel/access point. There is no workaround for the issue.
   
   Response Commitment: Qooper will respond within eight (8) hours of notification of the case.
   
   Resolution: Qooper will work to resolve the problem until the Service is returned to normal operation. Customer will be notified of status changes.
   
   Escalation: If the problem has not been resolved within two (2) days, the problem will have a higher priority than ongoing support, development, or operations initiatives.
   
   Customer Response Commitment: Customer shall remain accessible by phone/email for troubleshooting from the time a Severity P2 issue is logged until such time it is resolved.
   
   P3 - Medium Severity Level:
   
   Definition: Limited access to one point of entry or only impacts a subset of users on a organization or program. Possibly an issue in a type of feature or due to how a user is accessing the non-business critical system/application/function, affecting only single or few users
   
   Response Commitment: Qooper will respond within two (2) days of notification of the case.
   
   Resolution: If resolution requires a bug fix, Qooper will add the bug fix to its development queue for future Update and suggest potential workaround until the problem is resolved in a future Update. Customer will be notified of status changes.
   
   Escalation: If the problem has not been resolved within thirty (30) days, Customer may request to escalate the problem to the appropriate Qooper support.
   
   Customer Response Commitment: Customer will respond to Qooper requests for additional information and implementation recommended solutions in a timely manner.
   
   P4 - Minor Severity Level:
   
   Definition: Minor problem or small bugs or feature requests that make the system easier to use, it is not imperative to Customer’s business operation, there is a workaround. Ideas or suggestions for new features or add-on.
   
   Response Commitment: Qooper will respond within thirty (30) days of receipt of notification of the case.
   
   Resolution: If resolution requires a bug fix, Qooper will add the bug fix to its development queue for future update and suggest potential workaround until the problem is resolved in a future Update. Customer will be notified of status changes.
   
   Customer Response Commitment: Customer will respond to Qooper requests for additional information and implementation recommended solutions in a timely manner.
   
   

   Limitations and exclusions

   Qooper will only support functionality that it develops and is under its direct control. For all other functionality and/or issues or errors in the Service caused by issues, errors and/or changes in Customer’s information systems and/or third party products or services, Qooper may assist Customer and its third-party providers in diagnosing and resolving issues or errors but Customer acknowledges that these matters are outside of Qooper’s support obligations. Service failures attributable Customer’s acts or omissions (or by the acts or omissions of Customer’s representatives or users), use of the Service in breach of the Agreement Customer’s acts or omissions and/or Force Majeure Events are also excused.

   Cognata Technologies LLC. owns and is responsible for the Qooper Platform via both web and mobile interfaces. The systems that enables Customer to deploy both the mentorship and engagement tools that are hosted and operated by Cognata Technologies LLC. Customer has control and ownership of the end user relationships and terms and conditions and privacy policy with these end users. Customer owns and is responsible for all content and content feeds within the Platform, as well as all data, both core raw data, and the composite measures and data stored within the backend systems.

   Customer is responsible for providing direct support to its users and shall only contact Qooper’s support organization through Customer’s designated administrators.

   Disaster Recovery
   Qooper will maintain a disaster recovery plan for the Qooper Production Service in conformity with our most current Disaster Recovery Plan, the current version of which will be provided upon request. Qooper commits to a recovery time objective of twelve (12) hours – measured from the time that the Qooper Production Service becomes unavailable until it is available again. Qooper will test the Disaster Recovery Plan at least once every twelve months and will make available to Customer a written summary of its most recent test upon request.

   Data Backup and Management
   Qooper shall backup all Customer Data daily from the Customer production server to a storage device at its production data center for data recovery purposes. Additionally, Qooper shall backup all Customer Data daily to a storage server at a separate data center for disaster recovery purposes. Customer Data shall be stored for seven (7) days at the production facility and at the disaster recovery facility for thirty (30) days. Backup schedule should consist of at least one (1) backup per day and be performed on at least operating system, local disks, and customer identified files, folders, and databases.
   
   

   DATA BACKUP SERVICE	SERVICE ITEM/VOLUME	SERVICE ITEM/VOLUME
   Immediate Data Backup & Recovery	Nightly Backup	Test immediate data backup and recovery process on a nightly and ad-hoc basis as backup process runs.