OnBoard Master Subscription Agreement

Schedule A

OnBoard General Terms and Conditions

1. Overview of Services

Passageways, Inc., d/b/a OnBoard (“OnBoard”), provides an online meeting solution for Customer and Customer’s directors, officers, employees, and authorized agents. OnBoard includes online storage space for storing, retrieving, and sharing Posted Content (as defined below). The Posted Content is stored in encrypted format in OnBoard’s cloud-based servers. Each User authenticates access to Posted Content with personal login credentials. Communications between Users in OnBoard are encrypted.

2. Definitions

The terms below have the following meaning:

A. “Account” means the OnBoard billing account for Customer’s Subscription.

B. “Agreement” means (i) these OnBoard General Terms and Conditions (the “OnBoard Terms”), (ii) the Service Level Agreement, and the Support Performance and Recovery Objectives which are attached hereto, (iii) one or more Purchase Agreements, and (iv) any additional agreements, addenda or exhibits (including data processing addenda) expressly incorporated by reference herein or executed by the Parties in connection with this Agreement.

C. “Beta Services” means a product, service, feature or functionality that may be made available for Customer use at the Customer’s option. Beta Services may be provided for trial, limited release, demonstration, evaluation, early access or other usage as determined by OnBoard, and may be subject to additional terms and conditions as provided.

D. “Controller” means any entity that determines the purpose and means of processing Personal Information.

E. “Documentation” means the training materials, user manuals, specifications, security policies, and procedures and technical information made generally available to Customer by OnBoard at http://help.onboardmeetings.com or otherwise provided to Customer.

F. “Effective Date” means the date of execution of this Agreement.

G. “Posted Content” means the content, documents, materials, and information posted or uploaded, distributed by Users to or through the OnBoard Site.

H. “OnBoard” (referring to the software and platform) means the software-as-a-service known as “OnBoard” located at the URL app.onboardmeetings.com (or any successor URL) which establishes the framework for the creation of OnBoard Site(s) (defined below) and the transfer, storage and rendering of Posted Content, together with any corrections, bug fixes, patches, improvements, new releases, new versions, updates, enhancements, or other modifications to the foregoing. OnBoard includes remote access to the Software (defined below).

I. “OnBoard Site” means a site maintained by OnBoard within the URL app.onboardmeetings.com (or any successor URL) for authorized access to Posted Content via a User’s personal authentication credential.

J. “Personal Information” means any Posted Content that relates to an identified or identifiable individual.

K. “Privacy Laws” means applicable laws and regulations relating to privacy, data protection, and data security.

L. “Processor” means an entity that handles or processes Personal Information on behalf of a Controller.

M. “Purchase Agreement” means Customer’s written agreement with OnBoard for purchase of a Subscription.

N. “Relationship Data” means any data that OnBoard receives about Customer in connection with the creation and management of Customer’s Account and business relationship with us, such as contracting and licensing details and name and work contact details of company representatives who manage Customer’s account or business relationship with OnBoard, as well as OnBoard Registration Data.

O. “Software” means the computer software programs, mobile applications for access to the OnBoard Site(s), system upgrades and interfaces made available to Users in connection with OnBoard.

P. “Services” means the provision of OnBoard, together with any services provided by OnBoard, including its support of Customer’s use of OnBoard.

Q. “Subscription” means the license that Customer purchases for the Services listed in the Purchase Agreement, as modified from time to time, “Subscription Term” means the Initial Subscription Term together with any Renewal Subscription Term(s), as each are defined in Section 8.1, and “Subscription Year” means each consecutive twelve-month period within the Subscription Term, commencing on the Effective Date or the applicable anniversary thereof.

R. “Usage Data” refers to data and information generated and collected through Customer and Customer User’s access or use of the Services, including but not limited to user log-in data, date and time stamps, device details such as browser type and operating system, IP address, feature usage, product settings and configuration, activity records, and associated log data and metadata and compiled statistical, benchmarking, and performance data. For the avoidance of doubt, Usage Data does not include Posted Content.

S. “User(s)” means the persons that Customer authorize to use OnBoard under Customer’s Subscription.

T. “Customer” means the entity obtaining a Subscription to the Services, or the Customer listed on the Cover Sheet to which these General Terms and Conditions are attached, as applicable.

3. Operations

3.1 OnBoard Usage. Use of OnBoard requires compatible devices, internet access, and certain software. Effective use of OnBoard may require periodic updates to the foregoing. Requirements for compatibility with OnBoard may change from time to time, and it is Customer’s responsibility to maintain such compatibility.

3.2 OnBoard Registration. All Users must provide accurate and complete information when registering to use the Services (“OnBoard Registration Data”). Customer further agrees to update Customer’s OnBoard Registration Data to keep it accurate and up to date. Passageways uses OnBoard Registration Data and other Relationship Data to (a) provide services and associated support; (b) manage and secure its technical infrastructure; (c) develop and improve its products and services; (d) communicate with Customer about Customer’s use of OnBoard’s services and provide Customer with recommendations regarding additional OnBoard offerings; (e) enforce the terms of this Agreement or other contractual terms; (f) prevent abuse and fraud; (g) perform statistical analyses; and (h) for its internal business purposes.

3.3 Access to OnBoard. Users will receive access to Customer’s OnBoard Site for the boards and committees and individuals authorized under Customer’s Account. Customer may, by written notice to OnBoard at any point in a Subscription Term, add additional boards and Users, in which event OnBoard shall invoice Customer, and Customer shall pay the additional invoiced amount for the remainder of the then-current Subscription Year. Customer may, on a permanent basis at any time, substitute an individual for any single User without incurring any additional fees. Customer may, by written notice to OnBoard at any time more than thirty (30) days prior to the expiration of a Subscription Term, request to reduce the boards and Users authorized under Customer’s Subscription for the upcoming Subscription Term, in which event OnBoard will notify Customer of any change in pricing for Customer’s Subscription for the upcoming Subscription Term. Such a change is only available in advance of the start of a Subscription Term and may not be modified for an active Subscription Term.

3.4 Access Methods. OnBoard shall provide a login and password information for each User. Customer and Customer’s Users may access OnBoard only by using one or more passwords, security devices, or other access methods provided by OnBoard (collectively, “Access Methods”). Customer is solely responsible for and shall take steps to ensure that OnBoard Access Methods are kept confidential by Customer and the Users to whom they are assigned. Customer acknowledges that OnBoard may deny access of Services to any User if it has reason to believe that (a) the Access Methods have been lost, stolen, or compromised, or (b) such User either poses a threat to the Security of Posted Content, OnBoard or any User thereof, or is violating any of the terms of this Agreement. Customer agrees not to permit access to, or use of, the Services by any persons who are not defined as Users on Customer’s Account. Customer is solely responsible for all acts or omissions of any person using OnBoard through Customer’s Access Methods, and use of OnBoard via Customer’s Access Methods is deemed to have been authorized by Customer and made by a User. If any of Customer’s Access Methods are lost, stolen or compromised, Customer will promptly notify OnBoard. Upon receipt of such notice, such Access Methods will be cancelled or suspended as soon as is reasonably practicable, but Customer is responsible for any actions taken through the use of such Access Methods prior to such cancellation. Customer shall disclose to OnBoard, and update as necessary, the identity of all Users.

3.5 Usage Data. OnBoard collects and processes Usage Data to (a) provide Services and associated support to Customer; (b) manage and secure its technical infrastructure; (c) develop and improve its products and services; (d) communicate with Customer about Customer’s use of the Services and provide Customer with recommendations regarding additional OnBoard offerings; (e) enforce the terms of this Agreement or other contractual terms; (f) prevent abuse and fraud; (g) perform statistical analyses; and (h) for its internal business purposes. OnBoard may share Usage Data with its affiliates and third-party service providers for these purposes, or as otherwise required or permitted by applicable law.

3.6 Third-party platforms. OnBoard may modify the Services from time to time to adjust to availability and functionality of third-party platform connections that are activated by Customer or Customer’s Users.

4. Privacy and Security

4.1 Privacy. OnBoard will comply with its obligations under all applicable laws and regulations related to its operation of the Services, including all applicable Privacy Laws. Without limiting the foregoing, the OnBoard Privacy Policy (“Privacy Policy”), as may be amended from time to time, describes OnBoard’s data security and privacy practices for Users. The current Privacy Policy can be found at https://www.onboardmeetings.com/websiteprivacy/. In the event of any conflict or inconsistency between this Agreement and the Privacy Policy with respect to Personal Information, this Agreement will control.

4.2 Data Processing Activities. The Parties acknowledge that Posted Content may contain Personal Information. The Parties agree that Customer is the Controller, and OnBoard is the Processor, of such Personal Information. OnBoard will process the Personal Information solely in accordance with this Agreement or other documented instructions provided by Customer. In no event will OnBoard (a) retain, use, or disclose Personal Information for any purpose other than providing the Services or as required by applicable law (and for clarity under the California Consumer Privacy Act, as amended (“CCPA”), retaining, using, or disclosing the Personal Information for a commercial purpose outside of OnBoard’s direct business relationship with Customer); (b) “sell” or “share” Personal Information to any third party, as “sale” and “share” are defined under the CCPA or other applicable Privacy Laws; or (c) combine Personal Information with personal data received from other parties, except as permitted under applicable Privacy Laws. Consistent with applicable Privacy Laws, OnBoard will notify Customer if OnBoard determines that it can no longer meet its obligations under this Section 4.2, and Customer may upon reasonable advance notice take reasonable and appropriate steps consistent with this Agreement to stop and remediate any unauthorized use of Personal Information.

4.3 Security. OnBoard maintains technical, administrative, and physical safeguards to protect Posted Content that OnBoard processes on Customer’s behalf in providing the Services, consistent with the measures described in the then current Documentation related to security policies and procedures (the “Security Documentation”). OnBoard may revise or amend the Security Documentation from time to time, provided that in no event shall OnBoard revise or amend the Security Documentation in a manner that materially reduces the level of security or protection of Posted Content. Usage of OnBoard may be controlled and monitored by OnBoard for security and compliance purposes. In the event of any breach of security of the Services leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, Posted Content, OnBoard will notify Customer promptly within seventy-two (72) hours except as otherwise provided by applicable law.

4.4 Third Party Certifications and Audits. OnBoard has obtained third-party certifications set forth on our security page. Subject to the confidentiality obligations set forth in this Agreement, Customer will have access to copies of OnBoard’s then most recent third-party certifications or audits as applicable.

5. License and Related Terms

5.1 License Grant. During the Term and subject to Customer and Customer’s Users’ ongoing full compliance with the terms and conditions set forth in this Agreement, OnBoard grants Customer, solely for Customer’s internal and legitimate business purposes, a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the modules of OnBoard as set forth in the Purchase Agreement.

5.2 Commitments and Restrictions. Customer shall not and shall ensure Customer’s Users shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services, the Software or the OnBoard Sites available to any third party; (b) modify, copy or create derivative works based on OnBoard or the Software; (c) frame or mirror any content forming part of or all of the Services or the OnBoard Sites, other than on Customer’s own intranets or otherwise for Customer’s own internal business purposes as permitted by this Agreement; (d) reverse engineer, disassemble, decompile or otherwise attempt to imitate, derive or discover the source code for the Software; (e) provide non-Users with access to the Services, the Software or OnBoard Sites, whether directly or through a service bureau, commercial time-sharing arrangement, or application service provider arrangement; (f) use the Services, the Software or the OnBoard Sites to provide outsourcing or training services to non-Users; (g) otherwise market the Services, the Software or the OnBoard Sites to third parties without OnBoard’s written permission; (h) access or use the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services or the Software; (i) use the Service for any illegal or unauthorized purposes or beyond the scope of this Agreement; or (j) breach or attempt to breach the security of any platforms or applications in the Services or the Software.

5.3 Rights to Intellectual Property. OnBoard grants no other right or license to any of its or its affiliates’ Intellectual Property Rights to Customer by implication, estoppel or otherwise. Customer acknowledges and agrees that OnBoard or its affiliates (as applicable) owns all Intellectual Property Rights, title, and interest in, to, and under such intellectual property and that Customer shall not acquire any proprietary rights therein. Any use by Customer or Customer’s Users of any of such Intellectual Property Rights and all goodwill and other rights associated therewith shall inure to the benefit of OnBoard or its affiliates (as applicable). “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.

5.4 Customer’s Responsibilities. Customer is responsible for Customer’s Users’ use of the Services. Customer will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Posted Content; (b) ensure that each User has all necessary permissions, consents, approvals, and licenses for and to the Posted Content; and (c) comply with all applicable local, state, federal and foreign laws, or regulations in connection with each User’s use of the Services. Customer shall not transfer or assign Customer’s OnBoard account privileges to a third-party without OnBoard’s prior written consent. Users are authorized to use the Services only for Customer’s legitimate activities, and in accordance with any Acceptable Use Guidelines provided by OnBoard to Customer from time to time. As between Customer and OnBoard, Customer shall be solely responsible for, and OnBoard shall have no responsibility for, monitoring and policing the adherence of Users to any such Acceptable Use Guidelines and all applicable laws, regulations, duties, and obligations with respect to accessing, distributing, and using Posted Content. Customer acknowledges and agrees that OnBoard is not responsible or liable in any way for any Posted Content and has no duty to pre-screen such content. However, OnBoard reserves the right to remove Posted Content from the OnBoard Site at any time, without prior notice, if OnBoard in its sole discretion concludes that the Posted Content may violate OnBoard Acceptable Use Guidelines or applicable law.

5.5 License to OnBoard. Customer, on Customer’s behalf and on behalf of Customer’s Users, hereby grants to OnBoard a non- exclusive, non-transferable (except as otherwise provided in Section 13.7), non-sublicensable (except as necessary to any third-party hosting provider) and royalty-free right and license to copy, store, access, use, transmit and distribute and display the Posted Content solely for the operation of OnBoard.

5.6 Feedback and Improvements. Customer acknowledges and agrees that OnBoard shall own all rights, title, and interest, in and to any improvements to the Services, the Software or any new programs, upgrades, modifications or enhancements to the foregoing, whether developed by OnBoard or Customer in connection with rendering the Services to Customer. In the event that Customer provides any feedback, ideas, suggestions, proposals, refinements or other improvements (collectively, “Feedback”), Customer hereby irrevocably transfer and assign to OnBoard all rights, title, and interest which Customer may have in such Feedback. OnBoard shall have the right, but not the obligation, to use any such Feedback to improve any or all parts of its Services or Software and in the event that OnBoard does incorporate such Feedback, it shall solely retain all right, title and interest in such Feedback. In the event that such Feedback does not automatically transfer to and vest in OnBoard, Customer hereby grants an exclusive, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to OnBoard and its affiliates to use the Feedback for any purpose without notice or restriction.

5.7 Ownership of Posted Content; Disclaimer. As between Customer and OnBoard, Customer exclusively owns all rights, title and interest in and to all Posted Content provided by Customer to OnBoard Sites or under the Services. Customer acknowledges and agrees that OnBoard’s custodial function for Posted Content is limited to the technical operation and maintenance of the Services and shall not extend to any fiduciary or other duty of care related to management of the sourcing, posting, accessing, use, or receipt for any Posted Content, or any functioning of any board of directors, executive leadership team, or any other group which utilizes the Service.

6. Confidentiality

6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), including any intellectual property or proprietary rights, that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary,” or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, Confidential Information of OnBoard shall include the terms and conditions of this Agreement (including pricing and other terms reflected in all Purchase Agreements hereunder), provision of the Services, screenshots of OnBoard, pricing in proposals, business and marketing materials, technology and technical information, product designs, and business processes. Without limiting the foregoing, Customer’s Confidential Information shall include the Posted Content. Notwithstanding the foregoing, each Party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such Party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all the assets of any business, division, or group of such Party. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party, which can be demonstrated with clear and convincing evidence; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality and Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing this Agreement and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Section 6. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, and in no event shall it use less than a reasonable degree of care.

6.3 Compelled Disclosure. If the Receiving Party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted), provide reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure and only make such disclosure, in both manner and content, as required by such law or legal process.

6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

6.5 Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall continue in perpetuity.

7. Pricing and Payment

7.1 Subscription Fees. Customer shall pay the amounts set forth in Customer’s Purchase Agreement(s) with OnBoard (“Subscription Fees”) in accordance with the terms and conditions stated in the Purchase Agreement. Subscription Fees shall be subject to change or increase as set forth in Section 8.1 or otherwise in the applicable Purchase Agreements.

7.2 Overdue Payments. Except as otherwise expressly provided in the applicable Purchase Agreement, invoiced amounts (excluding amounts subject to good faith dispute), if not paid within thirty days (30) of the date of the invoice (the “Due Date”), are past due and may accrue, at OnBoard’s discretion, late charges at the rate of twelve percent (12%) per annum, or the maximum rate permitted by applicable law, whichever is lower, from the Due Date. In addition, Customer shall be responsible for reasonable attorneys’ fees and other reasonable costs of collection in the event of nonpayment by the Due Date.

7.3 Taxes. All Subscription Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for payment of taxes levied on transactions with OnBoard, including sales, use, value added taxes and any other similar taxes, import fees, and custom duties of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer, other than any taxes imposed on OnBoard’s income. In the event any amounts due to OnBoard are subject to withholding imposed by a government authority, such amount will be remitted by Customer to the appropriate taxing authority for the benefit of OnBoard. Customer will reasonably cooperate with OnBoard to provide information and records as OnBoard may require in connection with any application by OnBoard to any governmental taxing authority.

7.4 Non-Payment and Suspension of Services. If Customer’s Account is not paid current by the Due Date in addition to any of its other rights or remedies under this Agreement or by applicable law, OnBoard reserves the right to suspend access to the Services, but only if such past due account is not paid within five (5) business days after written notice of OnBoard’s intent to exercise its right to suspend hereunder.

8. Term

8.1 Term of Agreement and Subscription. This Agreement and the Subscription commence on the Effective Date and will continue for the period specified on Customer’s Purchase Agreement (“Initial Subscription Term”) and will automatically renew for consecutive one-year terms (each a “Renewal Subscription Term” and together the “Subscription Term”) unless Customer or OnBoard provide the other written notice of termination no later than thirty (30) days prior to the expiration of the then-current Subscription Term. OnBoard may implement revised Subscription Fees, in excess of the annual increment referenced in Customer’s Purchase Agreement(s), for the next Renewal Term by giving written notice of such price changes to Customer at least sixty (60) days prior to the expiration of the current Subscription Year, and that pricing will take effect as an update to the Purchase Agreement unless Customer elects not to renew this Agreement in accordance with this Section 8.1.

8.2 Early Termination. This Agreement may be terminated by either Party prior to the end of the Subscription Term as follows: (a) in the event that a Party materially breaches an obligation hereunder and fails to cure such breach within thirty (30) days after being notified thereof in writing, the non-breaching Party may terminate this Agreement (and any Purchase Agreement) at any time thereafter that the breach is continuing by providing written notice to the breaching Party, (b) by Customer in accordance with Section 9.3, (c) in accordance with Section 11.1, and (d) Section 13.8.

8.3 Post Termination Obligations. Termination of this Agreement shall not limit either Party from pursuing any remedies available to it, including injunctive relief. Agreement termination, other than by Customer in accordance with Section 8.2, shall not relieve Customer of Customer’s obligation to pay the entire Subscription Fee for the applicable Subscription Term and all other applicable fees, if any, due to OnBoard for the use of the Services. Following any termination of this Agreement by Customer pursuant to Section 8.2(a), Section 9.3, or Section 11.1, Customer shall only be responsible for payment of a prorated portion of the Subscription Fee calculated as the fraction of the Subscription Year prior to the effective date of such termination.

8.4 Effect of Termination. Following the termination or expiration of this Agreement, including Customer’s Subscription, (a) OnBoard will convert Customer’s Account to an inactive status, (b) Customer must immediately cease (and OnBoard can block) Customer’s accessing and using the Services and (c) Customer will retrieve all Customer’s Posted Content no later than the effective date of termination or expiration of this Agreement (“Termination Date”). OnBoard will disable Customer’s access to the Services as of the Termination Date, provided, however, that Customer may submit a written request to OnBoard within thirty (30) days following the Termination Date to temporarily re-enable access solely for the purpose of retrieving Customer’s Posted Content, which request OnBoard will not unreasonably deny. OnBoard will retain Customer’s Posted Content a minimum of thirty (30) days following the Termination Date, after which the Customer acknowledges that OnBoard will have no responsibility to retain or return Customer’s Posted Content and may delete or otherwise dispose of such Posted Content without further notice.

8.5 Surviving Provisions. In the event this Agreement is terminated, any provision which must survive in order to allow the Parties to enforce its meaning shall survive, including without limitation, Sections 5.3 (Rights to Intellectual Property), 5.6 (Feedback and Improvements), 6 (Confidentiality), 7 (Pricing and Payment) (until all amounts due hereunder are paid in full), 8.3 (Post Termination Obligations), 8.4 (Effect of Termination), 9.4 (Disclaimer), 10 (Limitation of Liability), 11 (Indemnification) and 13 (General Provisions).

9. Warranties

9.1 Mutual Warranty. Each Party represents and warrants to the other Party that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.

9.2 OnBoard Warranty of Rights and Performance. OnBoard warrants that: (a) it owns or otherwise has sufficient rights in the Software to license Customer to use OnBoard as stated in this Agreement, and (b) OnBoard will materially conform to and perform substantially in accordance with the Documentation.

9.3 Remedies for Breach of OnBoard Warranty. In the event OnBoard breaches Section 9.2 and is unable to substantially correct such deficiencies after good faith efforts and at a commercially reasonable cost within thirty (30) days of Customer’s written notification of such non-conformance, Customer shall have the right, as Customer’s sole remedy for such breach, to terminate the Agreement and receive from OnBoard the prepaid but unused portion of the Subscription Fee for the then-current Subscription Term (prorated based on the number of whole months left in the then-current Subscription Term).

9.4 Disclaimer. ONBOARD EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 9, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 9.

10. Limitation of Liability

Subject to applicable law, in no event shall either Party be liable under or in connection with this Agreement to the other Party or its personnel under any legal or equitable theory, including for any indirect or consequential damages, including for loss of profits, business interruption, harm to any computer system, or any other commercial damages or losses, regardless of the theory of liability (contract, tort, or otherwise), even if the other Party has been advised of the possibility of such damages. The total cumulative liability of either Party for damages, expenses, costs, liability or losses arising out of or in connection with use of the Services or any other matter under this Agreement is capped in the amount equal to Subscription Fees paid by Customer for the Subscription Year(s) in which the alleged damage or liability occurred.

11. Indemnification

11.1 By OnBoard. OnBoard will defend and indemnify Customer and Customer’s Users against any claim, suit, action or proceeding against Customer or Customer’s Users alleging (a) that the Software or use of the Services in the manner and for the purposes authorized in this Agreement infringes any third-party patent, copyright, or trademark rights, or (b) harm caused by any grossly negligent, unlawful, willful or intentional act or omission by OnBoard. If Customer’s or Customer’s Users use of OnBoard results in an indemnification claim, OnBoard may at its sole discretion secure the right for Customer to continue using the items in question or replace or modify them to make them non-infringing. If these options are not commercially reasonable as determined in OnBoard’s sole discretion, then the Customer may terminate the Agreement and receive from OnBoard the prepaid but unused portion of the Subscription Fee for the then-current Subscription Term (prorated based on the number of whole months left in the then-current Subscription Term).

11.2 By Customer. Customer will defend and indemnify OnBoard against any claim, suit, action or proceeding against OnBoard alleging harm originating in (a) the use or distribution of Posted Content; (b) Customer’s or Customer’s Users’ use of Software or the Services in the manner and for the purposes not authorized in this Agreement or (c) grossly negligent breach of this Agreement by Customer or Customer’s Users.

11.3 Procedure. The Party seeking indemnification must promptly notify the indemnifying Party in writing of the indemnifiable claim and provide the indemnifying Party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of the indemnified claim. An indemnifying Party will select counsel for defense of the indemnified claim and direct and control the defense. Provided the indemnifying Party is diligently conducting such defense, the indemnifying Party shall not be liable for any attorney’s fees of the indemnified Party. The indemnifying Party must obtain the indemnified Party’s written consent to any settlement (said consent not to be unreasonably withheld, conditioned, or delayed), except that no such consent shall be required if the settlement or compromise requires no payment of damages by the indemnified Party and does not admit any liability or determination against the indemnified Party or materially restrict the indemnified Party.

12. Beta Services

OnBoard may, from time to time, make Beta Services available to the Customer at no charge. Customer may choose to try such Beta Services at Customer’s sole discretion and will not require a Purchase Agreement to enable access or use. Beta Services are not supported and may be subject to supplemental terms, in addition to those contained in this Agreement, which will be presented to the Customer. Beta Services are not considered part of Customer’s OnBoard subscription or Services, however, all Customer obligations shall apply to Customer’s use of the Beta Services, including Section 3.4 Access Methods, Section 5.2 Commitments and Restrictions, Section 5.4 Customer’s Responsibilities. OnBoard may discontinue Beta Services at any time in its sole discretion. BETA SERVICES ARE PROVIDED “AS IS”, EXCLUSIVE OF ANY WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED. ONBOARD SHALL HAVE NO LIABILITY OR INDEMNIFICATION OBLIGATIONS OF ANY TYPE WITH RESPECT TO BETA SERVICES. IN THE EVENT THAT SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, ONBOARD LIABILITY RELATED TO BETA SERVICES WILL NOT EXCEED THE MINIMUM ENFORCEABLE UNDER APPLICABLE LAW.

13. General Provisions

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

13.2 No Third-Party Beneficiaries. This Agreement is not intended to create any rights in any person or entity who is not a party to this agreement, and no such rights are created hereunder.

13.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) nationally recognized express carrier to the mailing address provided on the Purchase Agreement; (c) electronic mail to the e-mail address provided for Customer’s Account. All notices to OnBoard should have a copy sent by electronic mail. The address for notices to OnBoard is as follows:

Passageways Inc., dba OnBoard

5140 E. Southport Rd #1012

Indianapolis, IN 46237

[email protected]

For all other purposes, OnBoard’s principal place of business is 333 North Alabama Street, Suite 300, Indianapolis, IN 46204.

All notices will be deemed to have been given immediately upon delivery by electronic mail or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as detailed above.

13.4 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Any waiver in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

13.5 Headings. The section headings used in this Agreement are intended for convenience only and shall not supersede or modify any provisions.

13.6 Severability. Any provision of this Agreement, which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the Parties.

13.7 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. 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. This Agreement will be legally binding on and benefit both Parties, as well as their legitimate successors and assignees.

13.8 Force Majeure. If either Party is rendered unable, wholly or in part, by Force Majeure (as defined below) to carry out its obligations under this Agreement, that Party shall give to the other Party prompt notice of the force majeure with reasonably full particulars concerning it. Thereupon the obligations of the Party giving notice, so far as they are affected by the Force Majeure, shall be suspended during, but no longer than, the continuance of the Force Majeure. The affected Party shall use all reasonable diligence to remove the Force Majeure as quickly as possible. The term “Force Majeure” shall mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, failure of internet or hosting facilities, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the Party claiming suspension. If a Party cannot perform under this Agreement due to a Force Majeure event for a period of thirty (30) or more consecutive days, the other Party may terminate this Agreement without further obligation upon written notice given prior to any re-commencement of performance. If OnBoard is the Party experiencing the Force Majeure event and, as a result, is unable to provide the Services for such period, and Customer terminates this Agreement pursuant to this Section 13.8, then OnBoard will refund Customer prepaid Subscription Fees on a prorated basis as of the date the Force Majeure event commenced. This Section shall not excuse any non-payment of monies or fees owed from one Party to the other.

13.9 Governing Law. OnBoard and Services are operated by OnBoard from its offices in Indiana, USA. This Agreement and Customer’s use of the Services are governed by and construed in accordance with the substantive law (and not the law of conflicts) of the State of Indiana.

13.10 Litigation Venue. Customer expressly agrees that courts of competent jurisdiction located in Indiana shall have personal jurisdiction over Customer for any action by or against OnBoard arising out of or in connection with this Agreement and/or use of the Services, and courts of competent jurisdiction located in Marion County, Indiana shall be the sole and exclusive venue for any such action.

13.11 Entire Agreement. This Agreement, including the Purchase Agreement and any schedules and exhibits, represents the entire agreement between the Parties, and expressly supersedes and cancels any prior or contemporaneous oral or written agreements on the subjects herein. This Agreement and the Purchase Agreement shall be interpreted to be consistent with one another. In the event there is an irreconcilable inconsistency between this Agreement and the Purchase Agreement, the terms of the Purchase Agreement shall control. Each party acknowledges that it is not entering into the Agreement based on any representations not expressly contained herein. Any amendment to this Agreement must be in writing and executed by both Parties.

13.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.