1. Definitions

In this Agreement, the following terms will have the corresponding definitions. The Related Agreements and Addendums are hereby made a part of and integrated into this Agreement. By entering into this Agreement, Client is agreeing to the Related Agreements, including all updates and modifications thereto as set forth in this Agreement.

“Acceptable Use Policy” is the Related Agreement between Client and Company made available at http://www.firstlink.com/legal.

“Addendum(s)” means any of the following addendum agreements required in connection with certain Services as set forth in an Order, as well as any other addenda the Company requires the Client to agree to in connection with an Order: (1) Project Addendum, (2) Project Maintenance Addendum, (3) Project Labor Addendum, and (4) Service Addendum.

“Client Responsible Party(ies)” means any individual or business entity, including any subsidiary, affiliate, or customer of Client, that is an end user of the Services or who has access to the Services through Client.

“Privacy Policy” is the Related Agreement between Client and Company made available at https://www.firstlink.com/legal/.

“Order” means the order for Services set forth in a Proposal and/or an Order Form.

“Related Agreements” means the Acceptable Use Policy, the Privacy Policy, and the UCE/ UBE policy.

“Third Party Software or Services” means all third party software and/or services procured by the Company on behalf of a Client in connection with an Order.

“UCE/ UBE Policy” is the Related Agreement between Client and Company made available at http://www.firstlink.com/legal/.

2. Services

The Company hereby agrees to provide the Services to Client, and Client agrees to accept and pay for the Services in accordance with an Order, this Agreement, the Related Agreements, and any applicable Addendums.

The Company reserves the right to modify its network and facilities used to provide the Services for purposes including, but not limited to, accommodating evolving technology and increased network demand, and providing enhanced services. The Company shall use reasonable efforts to notify the Client of any planned changes to the Company’s network or facilities that may adversely affect the Services provided hereunder.

3. Service Term

This Agreement shall begin on the effective date of the initial Services purchased by the Client pursuant to an Order and shall continue for so long as the Company is providing Services to the Client (the “Term”). With respect to each Service purchased by Client, the Service shall be for the term specified in the applicable Order (the “Initial Service Term”), and unless otherwise set forth in an Order, shall be automatically renewed on a month-to-month basis at the end of the Initial Service Term unless either Party provides thirty (30) days’ written notice to the other of the termination of such Service this Agreement prior to the end of the then-current term. With respect to each Service, the Initial Service Term and all month-to-month extensions thereof are collectively referred to herein as the “Service Term.”

The Client may terminate all Services by giving the Company at least thirty (30) days’ prior written notice, and the Company shall discontinue providing Services on the later of the date of termination specified in such notice or thirty (30) days following the Company’s receipt of such notice. However, the Client remains obligated to pay all amounts remaining in any Initial Service Term and any other remaining term, and if the Company has purchased equipment and/ or contracted third party services on behalf of the Client, the Client shall assume responsibility for payment for such equipment or services, until paid in full.

In addition to the Company’s remedies with respect to non-payment as set forth below, upon a material breach of this Agreement, the non-breaching Party may send written notice to the breaching Party informing the breaching Party of the nature of the breach and providing fifteen (15) days to cure such breach. If the breaching Party does not cure the material breach within the applicable cure period, the non-breaching Party may immediately terminate this Agreement in addition to pursuing all other available remedies including pursuing late and early termination fees.

The Company reserves the right to immediately terminate the Client’s Services and this Agreement and to remove content from the Company’s site or servers at any time for any reason and without notice to the Client if the Client’s use of the Services is in violation of law or the Company’s Acceptable Use Policy.

Client and Company may also terminate a Service by entering into a new Order for a substantially similar Service.

The Client may move the physical location of all or part of any Service to another location within the Company’s serving area provided the Client provides the Company with at least thirty (30) days’ prior written notice of the installation at the new location and the Client pays for all of the costs and expenses incurred by the Company and any third party vendors in connection with moving the Service.

The Company reserves the right to refuse any request for Services with a full refund of unused fees, excluding set up fees, at the Company’s sole discretion and with at least thirty (30) days’ prior written notice to Client.

Following the termination of the Services:

If the Client keeps equipment at the Company’s location, the Company shall reasonably cooperate with the Client to arrange for the Client’s removal of the equipment from the Company’s location, at the Client’s sole cost and expense;

The Company may donate the Client’s equipment to a recycler if the equipment remains at the Company’s location for ninety (90) days following the Company’s delivery to the Client of written notice that the Client has equipment at the Company’s location following a termination of the Services;

If the Company keeps equipment at the Company’s location for purposes of providing the Services, the Client shall reasonably cooperate with the Company to arrange for the Company’s removal of the equipment from the Client’s location, at the Client’s sole cost and expense. If requested by the Company, the Client will ship the Company’s equipment to the Company, postage prepaid by the Company.

Notwithstanding anything to the contrary herein, the Client’s obligation to pay for Services shall be secured by any of Client’s equipment in the Company’s possession. Upon termination of the Services, the Company shall be entitled to retain any of the Client’s equipment in which it has a security interest until all amounts due and owing to the Company for Services are paid in full, and the Company shall be entitled to sell any such equipment to satisfy all or any portion of the amounts due and owing from the Client to the Company for Services.

The Company reserves the right to suspend Client’s access to some or all of the Services if the Company deems Client’s network to be unsecure. During such suspension, all fees for Services shall continue to accrue. Prior to reinstating the Services, all outstanding fees then due and payable must be paid in full.

4. Payment Terms and Fees

All fees for Services must be paid in United States’ currency. If an Order requires a recurring monthly payment for a Service to be paid in advance, such amounts shall be invoiced to the Client one (1) month in advance of the applicable recurring period (or with respect to new Services, prior to the commencement of the Service), and such payment must be received by the Company in advance of the applicable monthly period. All fees with respect to partial months will be prorated. All non-recurring charges for Services, including, but not limited to, technical support, web maintenance and training and all reimbursable expenses, will be invoiced weekly and are due within thirty (30) days of the invoice date. Order setup fees are due and payable upon activation of an Order and are non-refundable. Company shall be reimbursed for all contracted expenses incurred on behalf of the Client or usage overage fees on the account. Delinquent accounts over fifteen (15) days will be charged a late fee of ten dollars ($10.00) or one and one-half percent (1.5%) on amounts past due, whichever is greater. Delinquent accounts over thirty (30) days will be suspended under this Agreement until such time as the charges due are paid. Delinquent accounts over forty-five (45) days may be terminated by the Company at the Company’s sole option, and following any such termination, may be eligible for reinstatement, at the Company’s sole option and subject to the Client’s payment of a reinstatement fee, as determined by the Company. During any such suspension, the Company is not responsible for any data loss, disruption or other losses incurred by the Client as a result of such suspension. The Client agrees to pay all costs including all attorneys’ fee in the collection of outstanding accounts.

Rates for recurring Services are determined by the Company and are subject to change following each Term. Client’s use of the Services after receiving thirty (30) days’ written notice of a rate increase from the Company will constitute acceptance by the Client of such new rates.

In addition to the fees set forth in an Order, Client will be responsible for paying for third party charges incurred by the Company in procuring services requested by the Client and/or other surcharges incurred while using supplemental networks or services other than the Company’s, as requested by the Client. The stated fees in any Order do not include any amounts for taxes. Client shall also pay all taxes, fees, assessments or other charges by governmental agencies attributed to the Services or required to be collected by the Company for any governmental agency (other than the Company’s income taxes).

5. Client Support

The Company will make every effort to provide high quality service to the Client. The Company will respond to email inquiries within one (1) business day of receipt. The Company will handle more complex inquiries, or situations that cannot be handled by email, by phone Monday through Friday 8:30 to 5:30 MT. Service incidents that include technical and administrative support including without limitation (i) installation, provision, operation, and/or maintenance of Client’s equipment, hardware and/or software or any computer hardware and/or software used by the Client will result in a reasonable fee charged to the Client. The technical support phone number is 303-691-8200 and should be used for system network failure after hours. Use of the emergency system inappropriately will result in a reasonable fee charged to the Client. The foregoing obligations of the Company are collectively referred to herein as “Support.”

6. Domain Name Services

On request, and subject to additional fees, the Company may register domain names on behalf of the Client. At no time does the Company represent that any particular domain name is available for registration. The registration and use of domain names is subject to the terms and conditions of the relevant naming authority. The contract for registration is between the Client and the naming authority. If payments are not received in respect of domain name registrations the Company may cancel or retain them. The Company gives no warranty that the domain name will not infringe the rights of any third party. The Client is responsible for ensuring they have rights to use domain names that are registered through the Company and the Client hereby indemnifies the Company for any loss, cost, or damage incurred by Company of whatsoever nature incurred in that regard. In the event of a dispute between the Client and third parties in respect of the rights to domain names, the Company retains the right to suspend or cancel disputed domain names, and the Client shall indemnify, hold harmless, and release the Company for any costs, expenses, losses, or other liability incurred in doing so. Unless otherwise stated in an Order, the Client has full responsibility for the renewal of the domain name.

7. Third Party Software and Services

In the course of providing Services, the Company may provide, pursuant to an Order, access to or use of Third Party Software or Services to the Client. Except as set forth in an Order, nothing shall cause or imply any sale, license, or other transfer by the Company of proprietary rights of or in any Third Party Software or Service to the Client. If the Client decides to enable, access or use Third Party Software or Services, the Client is hereby advised that the access and use of such Third Party Software or Services is governed solely by the terms and conditions of an agreement or license with such third party for such Third Party Software or Service, and the Company does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Software or Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data or any interaction between the Client and the provider of such Third Party Software or Services. We cannot guarantee the continued availability of such Third Party Software or Service features and may cease providing them without entitling the Client to any refund, credit, or other compensation, if for example and without limitation, the provider of Third Party Software or Service ceases to make it available for interoperation in a manner acceptable to the Company. The Client irrevocably waives any claim against the Company with respect to such Third Party Services. The Company is not liable for any damage or loss caused or alleged to be caused by or in connection with the enablement, access or use of any such Third Party Software or Services, or the Client’s reliance on the privacy practices, data security processes or other policies of such Third Party Software or Services, including with respect to, but not limited to, any hacking or privacy breach arising with respect to the use of such Third Party Software or Services. The Company disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Software or Service. The Client may be required to register for or log into the websites of third parties providing such Third Party Software or Services. By enabling any Third Party Software or Services, the Client is expressly permitting the Company to disclose login information as well as data related to the Services as necessary to facilitate the use or enablement of such Third Party Software or Services.

Any costs of or fees associated with such Third Party Software or Services incurred by the Company on behalf of a Client shall be invoiced to the Client as set forth herein and in an applicable Order.

8. Company Rights following a Termination or Suspension

Upon expiration or termination of the Agreement, Client must discontinue use of Services and relinquish use of IP addresses and server names assigned to Client by the Company in connection with Services, including without limitation pointing the DNS for Client’s domain name(s) away from the Company. Client agrees the Company may, in its sole discretion, make modifications to DNS records and zones on the Company’s network, managed and/or operated DNS servers, and/or other services.

Following the termination or expiration of this Agreement, the Client shall have sixty (60) days from the date of such termination or expiration (the “Transition Period”) to extract their data from any systems managed by the Company. If the Client does not have the expertise necessary to extract its data, it may engage Company on an hourly basis to assist with the extraction at the Company’s rate of $210 per hour provided all amounts due from Client to the Company have been paid in full and the Client delivers to the Company any retainer or prepayment reasonably requested by the Company in advance of the Company assisting with the data extraction. Following the expiration of the Transition Period, all data or material of Client’s or any Client Responsible Party and stored on the Company’s property or servers will be erased without prior notification; provided, however, the Company may retain some data or information for archival purposes, as determined by the Company in its sole and absolute discretion.

In the event the Company suspends the Client’s Services pursuant to this Agreement, the Client may be required to post a deposit or such other security as the Company deems necessary in order to resume delivering the Services. In addition, if the Company in its sole discretion, deems Client to be financially insecure, the Company may require such other action of Client, including letters of credit, security deposit(s), restrictions on available credit or other action as the Company may require from time to time regardless of Client’s then-current status or payment history. Failure to satisfy the Company’s request for such action within timelines set by the Company may result in immediate termination of service without further notice.

9. System Maintenance

The Company reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. The Company shall use reasonable efforts to notify the Client of any planned changes to the Company’s network or facilities that may adversely affect the Services provided hereunder using the following methods: 1) for scheduled maintenance, including necessary planned interruptions for service, upgrades, and reconfiguration, the Company will attempt to coordinate with all affected users to schedule the interruptions for times least disruptive and will attempt to minimize the number and duration of these interruptions; 2) for planned outages, the Company will use its best efforts to communicate planned outages by email or by phone at least three (3) business days before the outage; however, if a planned outage becomes necessary in cases of great urgency, the Company will communicate soon after the necessity for the outages is determined; and 3) for unplanned outages, the Company will communicate unplanned outages as time permits, to the first available Client contact by phone or, if unavailable, by email.

10. Duties of the Client

Client agrees the Services may be utilized only for lawful purposes and in accordance with this Agreement and the Acceptable User Policy, and the usage of the Services in connection with or adjunct to any matter or thing, which violates any foreign, municipal, state, county or federal statute or regulation, this Agreement or the Acceptable Use Policy is prohibited. The Client agrees that neither it nor any Client Responsible Party will use or attempt to use the Services to access, alter or destroy any information of another by any fraudulent means or device. The Client agrees that neither it nor any Client Responsible Party will use the Services to intentionally or unintentionally interfere or disrupt other clients of the Company, including their network services and network equipment. Such disruptions include but are not limited to the distribution of unsolicited advertising or chain letters, propagation of computer worms or viruses, and using the network to make unauthorized entry into any other machine accessible via the network. The Client shall be solely responsible for the content of any transmissions over the Internet by the Client and all Client Responsible Parties.

Client shall, at their own expense, provide all necessary preparations required to comply with the Company’s Service installation and maintenance specifications.

Client shall not use, remove, or modify any proprietary information, copyright, trademark, patent, design right, trade secret or other proprietary or confidential rights of the Company (“Company Proprietary Rights”) that the Client gains access to in connection with the Services without the Company’s written authorization by a duly authorized representative of the Company. Except as expressly set forth in an Order, the Client does not acquire any rights, express or implied, in any Company Proprietary Rights.

Client warrants that it has the right to use any trademarks or copyrighted material appearing on its websites and shall not use any trademarks or copyrighted material of any third parties in violation of applicable laws.

Client will be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all data, information, or material that Client or any Customer Responsible Party submits to any system provided or made available by the Company in connection with the Services (“Client Information”). The Company shall make no effort to validate such Client Information and products for content, correctness or usability.

11. Client Responsibility for Third Parties

The Client may permit Client Responsible Parties to use the Services, and Client is responsible for acts and/or omissions of any and all such users and for ensuring such users comply with the terms of this Agreement, and Client shall indemnify and hold harmless the Company for any acts by Client Responsible Parties in breach of this Agreement. If authorized pursuant to an Order only, the Client may resell certain Services to third parties, which third parties shall also be deemed Client Responsible Parties, and in which case the Client shall assume full responsibility for all activities and content of such third parties and shall indemnify and hold harmless the Company for any acts by such third parties in breach of this Agreement. Unless otherwise expressly stated in an Order, the Company will provide Support only to the Client and will not provide Support to the Client’s Client Responsible Parties. There are no third party beneficiaries to the Agreement, meaning that the neither the Client’s Client Responsible Parties or any other customers, subsidiaries, affiliates, and/or third parties shall have any rights against the Company under and/or arising from the Agreement.

12. Materials and Products

Client will deliver material and products to the Company server in a form that requires no manipulation on the part of the Company to be delivered to the Internet, or server-ready form. In the event that material or products are delivered to the Company server in non server-ready form, the Company will not be responsible for making the material or products server-ready. If the material or products are impeding the functionality of the Company server, in any way, the Company has the right to deactivate the material or product from the server. The Company will notify the Client immediately of the deactivation and give the Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of the server. If the Client fails to modify the material, within a reasonable time period decided by both Parties, the material will be removed.

The Client understands and acknowledges that the use of the Company’s Services requires knowledge of Internet languages, protocols and software. The skill level required varies depending on the use and content of the Client’s website. Web page design requires knowledge including but not limited to HTML, linking documents, FTPing and graphic placement. CGI programming and database management requires knowledge including but not limited to UNIX environment, online editors, Perl or C++ language, SQL and permissions. The Company can provide these Services to the Client upon written agreement of the terms and costs.

13. Independent Contractor

The Company is providing the Services as an independent contractor. Neither the Company nor any of the Company’s officers, employees, agents or subcontractors, if any, is an employee or agent of the Client by virtue of this Agreement or performance of any work under this Agreement. Nothing in this Agreement will be construed to establish a joint venture, partnership, employer-employee relationship, or other association between the Parties.

14. Confidential Information

Each Party acknowledges that confidential information (including trade secrets and confidential technical, financial and business information) (collectively, “Confidential Information”) may be exchanged between the Parties pursuant to this Agreement. Each Party shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other Party. Each Party agrees that it will not disclose or use the Confidential Information of the other Party except for the purposes of this Agreement and as authorized herein. Each Party will promptly report to the other any unauthorized use or disclosure of the other’s Confidential Information that the reporting party becomes aware of and shall provide reasonable assistance to the other Party (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.

Notwithstanding the foregoing paragraph, the recipient of Confidential Information may use or disclose the Confidential Information to the extent that such Confidential Information is: (i) already known by the recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient, (iii) rightfully received from a third party without any obligation of confidentiality, (iv) independently developed by the recipient without use of the Confidential Information of the disclosing Party, (v) approved by the disclosing Party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the recipient provides the disclosing Party with notice of such requirement prior to any such disclosure and takes all reasonable steps available to maintain the information in confidence.

Each Party shall safeguard and maintain the Confidential Information of the other Party in strict confidence and shall not, and shall cause its employees and agents to not disclose, provide, or make such Confidential Information or any part thereof available in any form or medium to any person except to the Party’s employees and agents who have a need to access such Confidential Information in order to enable the Party to exercise its rights under this Agreement.

Upon termination or expiration of the Agreement, or upon written request by the Parties, the other Party shall promptly return all documents and other tangible materials representing the Party’s Confidential Information and all copies thereof, and shall permanently erase or destroy all Confidential Information stored by or for the Party in electronic, optical, mechanical, or other storage medium, except as required to comply with any applicable legal requirements and except for any Confidential Information that is maintained or stored in accordance with the Party’s normal archival procedures, and shall certify, in writing, the completion of the foregoing to the Company. The provisions of this section shall survive the termination or other expiration or cancellation of this Agreement.

15. Non-Solicitation

Client shall not cause or attempt to cause any employee or agent of the Company to terminate their employment or agency with the Company during the Term of this Agreement and for a period of two (2) years after the expiration or termination of the Term; however, Client shall not be prohibited from soliciting any employee of the Company solely through a general advertising to the public of an available position. During the Term and for a period of two (2) years after the expiration or termination of the Term, Client further agrees not to cause or attempt to cause any of the Company’s customers to terminate their relationship with the Company. This provision will survive the termination and expiration of the Agreement.

16. Limited Warranty

THE COMPANY, ITS SUPPLIERS AND LICENSORS WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL SUBSTANTIALLY CONFORM TO THE BUSINESS FUNCTIONALITY AND SETUP SCHEDULE SET FORTH IN AN ORDER.

17. Warranty Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY IN SECTION 16 (LIMITED WARRANTY) ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. COMPANY AND ITS SUPPLIERS AND LICENSORS DO NOT REPRESENT OR WARRANT OR GUARANTEE: (a) THE SERVICES WILL MEET THE CUSTOMER’S BUSINESS REQUIREMENTS; (b) THE SERVICES WILL BE ERRORFREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; (c) ALL DEFICIENCIES IN ANY SERVICES CAN BE FOUND OR CORRECTED; OR (d) ANY PARTICULAR OUTCOME FOR THE CLIENT, CLIENT RESPONSIBLE PARTIES, OR THEIR CUSTOMERS OR ANY OTHER THIRD PARTY AS A RESULT OF THIS AGREEMENT OR THE PERFORMANCE OF SERVICES. THE CLIENT AGREES AND UNDERSTANDS THAT IT RETAINS FINAL RESPONSIBILITY FOR COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS, SETTLEMENT AGREEMENTS, AND OTHER OBLIGATIONS IMPOSED BY FEDERAL OR STATE OVERSIGHT AGENCIES AND THAT THE CLIENT CANNOT TRANSFER OR DELEGATE SUCH RESPONSIBILITY TO COMPANY.

18. Exclusive Remedies for Infringement

IN THE EVENT AN INJUNCTION OR ORDER SHOULD BE OBTAINED AGAINST THE COMPANY’S PROVISION OF ANY OF THE SERVICES BY REASON OF ANY ALLEGATIONS THAT ALL OR SOME PART OF THE SYSTEM INFRINGES UPON OR VIOLATES ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT OF ANY PERSON OR ENTITY, OR IF IN THE COMPANY’S OPINION THE SYSTEM IS LIKELY TO BECOME THE SUBJECT OF SUCH A CLAIM OF INFRINGEMENT, THE COMPANY WILL, AT ITS OPTION AND IN ITS EXPENSE, AND AS THE CLIENT’S EXCLUSIVE REMEDY, (a) PROCURE FOR THE CLIENT THE PRODUCTS AND SERVICES NECESSARY FOR THE COMPANY TO CONTINUE PROVIDING THE SERVICES; (b) REPLACE OR MODIFY THE SAME SO THAT IT BECOMES NONINFRINGING (SUCH MODIFICATION OR REPLACEMENT SHALL BE FUNCTIONALLY EQUIVALENT TO THE ORIGINAL); OR (c) IF NEITHER (a) NOR (b) IS PRACTICABLE, IMMEDIATELY TERMINATE THE SERVICES AFFECTED BY SUCH INJUNCTION OR ORDER AND RETURN ANY FEES PREPAID BY THE CLIENT, IF ANY.

19. Limitation of Liability

SUBJECT TO THE EXCLUSIVE REMEDIES AND OTHER LIMITATIONS OF LIABILITY PROVIDED HEREIN, AND EXCEPT WITH RESPECT TO THE COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 21 MUTUAL INDEMNIFICATION) BELOW, FOR ANY BREACH OR DEFAULT BY THE COMPANY OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, THE COMPANY’S ENTIRE LIABILITY, IF ANY, SHALL IN NO EVENT EXCEED ONE-HALF OF THE FEES PAID TO COMPANY BY THE CLIENT PURSUANT TO THIS AGREEMENT AND FOR THAT PORTION OF THE SERVICES GIVING RISE TO THE LOSS OR DAMAGE IN THE TWELVE MONTHS PRIOR TO THE DATE UPON WHICH THE CAUSE OF ACTION FIRST AROSE. THE CLIENT ACKNOWLEDGES THAT THE PRICES QUOTED IN THE ORDERS ARE CONSIDERATION FOR THE STATED LIMITS OF LIABILITY IN THIS PARAGRAPH.

IN NO EVENT WILL THE COMPANY OR THE CLIENT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, DELETION OF FILES, DEFECTS, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.

THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE COMPANY’S NETWORK AND THE INTERNET. THIRD PARTIES CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET. ALTHOUGH THE COMPANY WILL TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, THE COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. IT IS THE CLIENT’S AND THE CLIENT’S RESPONSIBLE PARTIES’ AND THEIR CUSTOMERS’ RESPONSIBILITY TO ENSURE THAT THE INFORMATION TRANSMITTED AND RECEIVED BY THE CLIENT AND THE CLIENT’S RESPONSIBLE PARTIES AND THEIR CUSTOMERS IS SECURE AND COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS.

ALTHOUGH THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TREAT THE CLIENT’S DATA STORED IN COMPANY ENVIRONMENTS AS CONFIDENTIAL, THE COMPANY WILL NOT BE LIABLE TO THE CLIENT, THE CLIENT RESPONSIBLE PARTIES OR ANY OF THEIR CUSTOMERS FOR A BREACH OF CONFIDENTIALITY REGARDING SUCH DATA IF SUCH DATA WAS NOT TRANSMITTED TO AND STORED IN COMPANY ENVIRONMENTS USING ENCRYPTED METHODS (BY A MINIMUM OF A 256 BIT KEY ENCRYPTION) AND MAINTAINED BY A STRONG PASSPHRASE AS SPECIFIED BY THE ENCRYPTION HARDWARE OR SOFTWARE. COMPANY DOES NOT MANAGE, OVERSEE, OR REVIEW AND CLIENT DATA THAT IS STORED IN THE COMPANY ENVIRONMENT.

NO PARTY MAY BRING AN ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT (OTHER THAN TO RECOVER FEES OR EXPENSES DUE TO THE COMPANY) MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN OR THE DATE OF DISCOVERY OF SUCH CAUSE, WHICHEVER IS LATER.

20. Force Majeure

The Company shall not be liable for any delay in or failure in the performance of the Company under this Agreement and neither such delay nor failure shall constitute a default under this Agreement or give rise to a claim for damages to the extent caused by an Event of Force Majeure. An “Event of Force Majeure” shall mean an event beyond the control of the Company and not attributable to the acts or omissions of Company, its employees, or agents, which interrupts, delays, or prevents, totally or partially, the performance of the Company’s obligations hereunder or which causes either the Company to fail in the performance of its duties hereunder or any loss or damage to the Client, a Client Responsible Party, or their customers or end users. Without limiting the generality of the foregoing, Events of Force Majeure shall include one or more of the following events: war, embargo, insurrection, riot, rebellion, social unrest, epidemic, flood, fire, explosion, lightning, earthquake, tornado, storm, court order, enactment, amendment, or repeal of laws or regulations of a public authority, labor unrest, strike, lockout, equipment breakdowns resulting from an event beyond the control of the Party, or a shortage of power, fuel, or other natural resources. If the Company’s performance of an obligation hereunder is delayed by an Event of Force Majeure, the time for performance of such obligation will be reasonably extended.

21. Mutual Indemnification

Subject to the disclaimers, limitations of liability and other provisions contained herein and, except with respect to any infringement or allegation of infringement by the Company for which an exclusive remedy is provided above, and in addition to the Client’s other indemnification obligations set forth in this Agreement, each Party agrees to defend, indemnify and hold the other and its officers, directors, agents, affiliates, distributors, franchisees and employees harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees (including allocated costs for in-house legal services) (“Liabilities”) arising out of any claim, demand, proceeding, or lawsuit by a third party relating to this Agreement but solely to the extent due to: (a) any intentional, willful, wanton, or grossly negligent breach of any representation or warranty of the indemnifying Party (the “Indemnifying Party”) contained in this Agreement; (b) any intentional, willful, wanton, or grossly negligent breach or violation of any covenant or other obligation or duty of the Indemnifying Party under this Agreement or under applicable law; (c) the Indemnifying Party’s infringement of any trademarks, copyrights, or U.S. Patents of a third party or misappropriation of any trade secrets or other proprietary rights of the other Party or a third party; or (d) with respect to Client only, any act or failure to act by Client or any Client Responsible Party in violation of the Company’s Acceptable Use Policy.

22. Insurance

Client and Client Responsible Parties and their customers are solely responsible to obtain and maintain any insurance coverage that they want, need, or desire for their data, software, and equipment associated with the Services. The Company does not provide any insurance for Client and Client Responsible Parties and their customers and their data, software, and equipment.

23. Notices

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next day that is not a Saturday, Sunday, or statutory holiday in the State of Colorado (each, a “Business Day”); (b) on the delivery date if delivered personally to the Party to whom the same is directed; (c) one (1) Business Day after deposit with a commercial overnight carrier, with written verification of receipt; or (d) five (5) Business Days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. All communications shall be sent to the Parties at their respective addresses in the Proposal or at such other addresses as either Party may designate to the other Party in accordance with this paragraph.

24. Assignment

The Agreement may not be assigned partially or completely by either Party without the prior written consent of the other which shall not be unreasonably withheld. E ither Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other Party. The Agreement will be binding upon and inure to the benefit of the Parties and their successors and assigns.

25. Survival of Obligations

Sections 1, 3, 4, 6, 7, 8, 10, 11, and 13 through 33 will survive the termination of this Agreement indefinitely or to the extent set out therein.

26. Amendments

No amendment, modification, or supplement to this Agreement, an Order, or any Addendum shall be binding on any of the Parties unless it is in writing and signed by the Parties in interest at the time of the modification. The Company may modify the Related Agreements in its sole and absolute discretion upon written notice to the Client (each, a “Notice of Modification”). If the Client does not deliver to the Company a written objection to a modification of a Related Agreement within thirty (30) days of its receipt of a Notice of Modification (the “Objection Period”), the Client shall be deemed to have accepted such modification and such modification shall automatically become effective at the commencement of the next calendar month following the Objection Period. If the Client does timely object in writing to such modification, the Company may immediately terminate the Agreement and all Services thereunder.

27. Integration

This Agreement, the Orders, the Related Agreements, and the Addendums hereto, including all additional addendums entered into in the future by the Parties and made a part hereof, constitute the entire agreement between the Parties with regard to the subject matter hereof and thereof.

28. Severability

If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.

29. Attorneys’ Fees and Costs

If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, costs and necessary expenses, in addition to any other relief to which that Party may be entitled. This provision is applicable to the entire Agreement.

30. Compliance with Laws

The Company Services are performed in the U.S. and Company technology is of U.S. origin for purposes of Government Controls promulgated by any U.S. Governmental Body. Client agrees to comply (and to cause its customers to comply) with all applicable Government Controls that apply to Company Services and the Company technology in any jurisdiction in which Company Services and the Company technology is accessed or used, as well as end-user, end-use, and destination restrictions issued by any Governmental Body. Company and Client agree to comply with all laws, statutes, ordinances, rules, regulations and orders of any governmental authority having jurisdiction applicable to its performance of this Agreement, including, without limitation, the export control laws, regulations and orders of the United States.

31. Governing Law and Construction; Dispute Resolution; Venue

This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict of law principles. The Parties agree that in the event of any dispute or disagreement solely between or among any of them arising out of, relating to or in connection with this Agreement or the Services (a “Dispute”), the Parties shall use their best efforts to resolve any such Dispute by good-faith negotiation and mutual agreement. The Parties shall meet at a mutually convenient time and place (whether in person or via video conference) to attempt to resolve any such Dispute prior to initiating any action in state or federal court. If the Parties are unable to resolve any Dispute, the Parties may, but shall not be required to, first attempt to settle such dispute through a non-binding mediation proceeding. If any Party to such mediation is not satisfied with the results thereof, then any unresolved Dispute shall be tried and litigated exclusively in the state and federal courts located in the City and County of Denver, Colorado. Notwithstanding, if a Party is seeking an emergency injunction or order, the Party shall not be required to comply with the “good-faith negotiation” requirement in this paragraph.

The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Transaction Act shall not apply to the Agreement. This Agreement’s final form resulted from review and negotiations among the Parties, and no part of this Agreement shall be construed against any Party on the basis of authorship.

32. Waiver of Jury Trial

THE COMPANY AND THE CLIENT EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OBLIGATIONS OF THE PARTIES HEREUNDER OR EACH PARTY’S CONDUCT IN RESPECT OF ANY OF THE FOREGOING.

33. Conflicts

If there is any conflict between this Agreement and an Order, the Order shall control. If there is any conflict between this Agreement and an Addendum, the Addendum shall control. If there is any conflict between this Agreement and a Related Agreement, this Agreement shall control.