BY ACCEPTING THE TERMS AND CONDITIONS OF THE SUBSCRIPTION AGREEMENT (THE “AGREEMENT”), YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.  

YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY NAMED IN THE REGISTRATION FORM.  SUCH ENTITY SHALL BE DEEMED TO BE THE “CUSTOMER” REFERRED TO IN THE AGREEMENT. 

CUSTOMER SHALL INSURE THAT ALL OF CUSTOMER’S PERSONNEL WHO UTILIZE THE SERVICES (AS DEFINED IN THE AGREEMENT) (EACH, A “REPRESENTATIVE”) ARE, PRIOR TO UTILIZING ANY SUCH SERVICES, PROVIDED WITH A COPY OF THE AGREEMENT AND AGREE IN WRITING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS THEREOF TO THE SAME EXTENT AS THE CUSTOMER.  CUSTOMER AGREES THAT IT WILL BE RESPONSIBLE FOR ANY BREACH OF THE AGREEMENT BY ANY REPRESENTATIVE.

THIS SUBSCRIPTION AGREEMENT (the “Agreement”), made as of the Effective Date, is entered into by and between Cumulus Digital Systems, Inc. (“Cumulus”), and the entity identified as the “Customer” on the Subscription Form.  The parties, intending to be legally bound, hereby agree as follows:

1.       DEFINITIONS

“Administrative User” means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by Cumulus.

“Customer Content” means all data and materials provided by Customer to Cumulus for use in connection with the SaaS Services, including, without limitation, customer applications, data files, and graphics.

“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Cumulus to Customer regarding the use or operation of the SaaS Services.

“Host” means the computer equipment on which the Software is installed, which is owned and operated by Cumulus or its subcontractors.

“Maintenance Services” means the support and maintenance services provided by Cumulus to Customer pursuant to this Agreement and Schedule A.

“Other Services” means all technical and non-technical services performed or delivered by Cumulus under this Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SaaS Services and the Maintenance Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a Schedule and mutually agreed to by the parties. All Other Services will be provided on a non-work-for-hire basis.

“Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.

“SaaS Services” refer to the specific Cumulus’s Smart Torque System^TM (STS) and/or Cumulus WorkFlow^TM Software that is hosted by Cumulus or its services provider and made available to Customer over a network on a term-use basis.

“Subscription Form” is a written document executed separately by Cumulus and Customer for the purpose of purchasing SaaS Services under the terms and conditions of this Agreement.

“Subscription Term” shall mean that period specified in a Subscription Form during which Customer will have on-line access and use of the Software through Cumulus’s SaaS Services. The Subscription Term shall renew for successive monthly or annual periods, as applicable, unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.

2.       SAAS SERVICES

• During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty-free, worldwide right to access and use the SaaS Services solely for Customer’s internal business operations subject to the terms of this Agreement.

• Customer acknowledges that this Agreement is a services agreement and Cumulus will not be delivering copies of the Software to Customer as part of the SaaS

3.       RESTRICTIONS

Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Cumulus shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title, and interest it may have in the foregoing to Cumulus.

4.       CUSTOMER RESPONSIBILITIES

• Customer shall provide commercially reasonable information and assistance to Cumulus to enable Cumulus to deliver the SaaS Services. Upon request from Cumulus, Customer shall promptly deliver Customer Content to Cumulus in an electronic file format specified and accessible by Cumulus. Customer acknowledges that Cumulus’s ability to deliver the SaaS Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.

• Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Cumulus exercises no control over the content of the information transmitted by Customer through the SaaS Services. Customer shall not upload, post, reproduce, or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such

• Unauthorized Use; False Information. Customer shall: (a) notify Cumulus immediately of any unauthorized use of any password or user ID or any other known or suspected breach of security, (b) report to Cumulus immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any authorized user, and (c) not provide false identity information to gain access to or use the SaaS Services.

• Administrator Access. Customer shall be solely responsible for the acts and omissions of its Administrative Users. Cumulus shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrative Users.

• Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Cumulus immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Cumulus immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer, and (iii) not provide false identity information to gain access to or use the

• License from Customer. Subject to the terms and conditions of this Agreement, Customer shall grant to Cumulus a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display, and transmit Customer Content solely as necessary to provide the SaaS Services to

• Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Cumulus or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Cumulus programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Cumulus and not under the

• Suggestions. Cumulus shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS

• Additional Data Services. In addition to the basic SaaS Service, Cumulus will use Customer data to improve its own services and also offer performance benchmarking and other related data services to Customer and other customers. In order to provide these additional services, Customer agrees that Cumulus may, during and after the term of the Agreement, develop and use Aggregated Data for any lawful business purposes, including, without limitation, to develop and improve Cumulus’ products and services and to create and distribute industry reports, standards, benchmarks and other materials. “Aggregated Data” means Customer data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer’s identity. Cumulus will only disclose Aggregated Data externally in a de-identified (anonymous) form that does not identify Customer, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs).

5.       ORDERS AND PAYMENT

• Orders. Customer shall order SaaS Services pursuant to a Subscription Form. All services acquired by Customer shall be governed exclusively by this Agreement.

• Invoicing and Payment. Unless otherwise provided in the Schedule, Cumulus shall invoice Customer for all fees on the Schedule effective date. Customer shall pay all undisputed invoices within 30 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by Customer to Cumulus in United States

• Expenses. Customer will reimburse Cumulus for its reasonable, out-of-pocket travel and related expenses incurred in performing the Other Services. Cumulus shall notify Customer prior to incurring any such expense. Cumulus shall comply with Customer’s travel and expense policy if made available to Cumulus prior to the required travel.

• Taxes. Cumulus shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services. Customer shall not be liable for taxes based on Cumulus’s net income, capital or corporate

6.       TERM AND TERMINATION

• Term. The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this The Subscription Term shall renew for successive monthly or annual periods, as applicable, unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.

• Termination. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such

• Suspension for Non-Payment. Cumulus reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Cumulus under this Agreement, but only after Cumulus notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Cumulus shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.

• Suspension for Ongoing Harm. Cumulus reserves the right to suspend delivery of the SaaS Services if Cumulus reasonably concludes that Customer’s use of the SaaS Services is causing immediate and ongoing harm to Cumulus or others. In the extraordinary case that Cumulus must suspend delivery of the SaaS Services, Cumulus shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Cumulus shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.4. Nothing in this Section 6.4 will limit Cumulus’s rights under Section 6.5

• Effect of Termination.

• Upon termination of this Agreement or expiration of the Subscription Term, Cumulus shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall

• If Cumulus terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Cumulus all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Cumulus, then Cumulus shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination

• Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the

7.       SERVICE LEVEL AGREEMENT

The Service Level Agreement (“SLA”) for the SaaS Services is set forth in Schedule B hereto. The SLA sets forth Customer’s sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in the SLA.

8.       WARRANTIES

• Warranty. Cumulus represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any beach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and

• CUMULUS WARRANTS THAT THE SAAS SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. CUSTOMER ACKNOWLEDGES THAT CUMULUS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY CUMULUS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.

9.       LIMITATIONS OF LIABILITY

NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF CUMULUS) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.  The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.

10.    INDEMNIFICATION

• Indemnification by Cumulus. If a third party makes a claim against Customer that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, Cumulus shall defend Customer and its directors, officers and employees against the claim at Cumulus’s expense and Cumulus shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Cumulus, to the extent arising from the claim. Cumulus shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Cumulus, or (c) use of the SaaS Services other than in accordance with the Documentation and this Agreement. Cumulus may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.

• Indemnification by Customer. If a third party makes a claim against Cumulus that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Cumulus and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the

• Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the

11.    CONFIDENTIALITY

• Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this Agreement, Customer Content is deemed Confidential Information of Customer. Cumulus software and Documentation are deemed Confidential Information of Cumulus.

• Confidentiality. During the term of this Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.

• Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and

12.    GENERAL PROVISIONS

• Non-Exclusive Service. Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Cumulus’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other

• Personal Data. Customer hereby acknowledges and agrees that Cumulus’s performance of this Agreement may require Cumulus to process, transmit and/or store Customer personal data or the personal data of Customer employees and Affiliates. By submitting personal data to Cumulus, Customer agrees that Cumulus and its Affiliates may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Cumulus to perform its obligations to under this Agreement. In relation to all Personal Data provided by or through Customer to Cumulus, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU Directives 95/46/EC and General Data Protection Regulation (EU) 2016/679 (GDPR) and laws implementing those Directives that regulate the processing of Personal Data and special categories of data as such terms are defined in the Directives. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content and using the Enabling Software and Cumulus SaaS. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Content, including any information which any Cumulus SaaS User shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing Customer Personal Data by Cumulus under this Agreement, including that such processing according to Customer’s instructions will not place Cumulus in breach of applicable data protection laws. Prior to processing, Customer will inform Cumulus about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross-border transfer restrictions. Customer is responsible for ensuring that the Cumulus SaaS meets such restrictions or special requirements. Cumulus to process any Personal Data that meets the requirements set forth in this Section according to these Terms of

• Cumulus Personal Data Obligations. In performing the SaaS Services, Cumulus will comply with the Cumulus Digital Systems, Inc. Privacy Policy, which is available at https://www.cumulusds.com/privacy and incorporated herein by reference. The Cumulus Digital Systems, Inc. Privacy Policy is subject to change at Cumulus’s discretion; however, Cumulus policy changes will not result in a material reduction in the level of protection provided for Customer data during the period for which fees for the services have been paid. The services policies referenced in this Agreement specify the parties’ respective responsibilities for maintaining the security of Customer data in connection with the SaaS Services. Cumulus reserves the right to provide the SaaS Services from Host locations, and/or through use of subcontractors, worldwide. Cumulus will only process Customer Personal Data in a manner that is reasonably necessary to provide SaaS Services and only for that purpose. Cumulus will only process Customer Personal Data in delivering Cumulus SaaS. Customer agrees to provide any notices and obtain any consent related to Cumulus’s use of the data for provisioning the SaaS Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of Customer data.

• Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale, or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.

• Notices. Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this Agreement.

• Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

• Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent

• Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full

• Entire Agreement. This Agreement (including all Schedules and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the

• Survival. Sections 3, 6, and 8 through 12 of this Agreement shall survive the expiration or termination of this Agreement for any

• Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.

• No Third-Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or

• Independent Contractor. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s

• Statistical Information. Cumulus may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s

• Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

• Compliance with Laws. Cumulus shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data

• Dispute Resolution. Customer’s satisfaction is an important objective to Cumulus in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to

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SCHEDULE A

SUPPORT & MAINTENANCE SERVICES

1. Support and Maintenance Services

Support and Maintenance Services are included in the SaaS Service subscription in Exhibit A and entitles Customer to the following:

• Telephone or electronic support in order to help Customer locate and correct problems with the
• Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications.
• All extensions, enhancements and other changes that Cumulus, at its sole discretion, makes or adds to the Software and which Cumulus furnishes, without charge, to all other Subscribers of the SaaS

2. Response and Resolution Goals

• “business hours” means 8am-6pm EST, Monday thru Friday, except
• “Fix” means the repair or replacement of Software component to remedy
• “Problem” means a defect in Software as defined in Cumulus’s standard Software specification that significantly degrades such Software.
• “Respond” means acknowledgement of Problem received containing assigned support engineer name, date and time assigned, and severity
• “Workaround” means a change in the procedures followed or data supplied by Customer to avoid a Problem without substantially impairing Customer’s use of the

SCHEDULE B

SERVICE LEVEL AGREEMENT

Online Service Availability

Cumulus shall make commercially reasonable efforts to provide 24 hours, 7 days a week availability and access to the SaaS Service and will continuously and proactively monitor the SaaS Service and its related environment.

Under exceptional circumstances, Cumulus may experience the need for emergency maintenance, during which time, the SaaS Service will be unavailable to Customer (“Service Outage”).  Cumulus will use reasonable efforts to notify Customer a minimum of fifteen (15) minutes prior to a Service Outage. 

Customer will notify Cumulus of service interruptions or delays that may be known to Customer. 

Customer will provide access to its designated contacts to assist Cumulus with correcting any Service Outage problems in a timely manner.  Cumulus will also provide updates to Customer until the Service Outage has been corrected. 

Upon learning of any Service Outage, Cumulus will correct the Service Outage and restore SaaS Service availability. Cumulus shall make commercially reasonable efforts to provide 99.5 percent (99.5%) availability (the “System Availability”) as measured monthly. Cumulus supports use of Customer monitoring tools to enable end to end landscape monitoring by Customer

Cumulus provides access to Real Time Application Health monitoring dashboards, including capacity monitoring.

Cumulus provides an automatic back-up for all hosted data, continuously backed up by our cloud-storage providers (Microsoft Azure and/or Amazon Web Services, where applicable)

Cumulus provides evidential data on agreed SLA measurements

Service Credits

In the event Cumulus fails to meet the System Availability and Response Times noted above, Customer shall be entitled to the following Service Credits:

• Severity Level 1 $200.00/hr in which Cumulus fails to meet the Systems Availability or Response Times noted above, up to a max of one (1) days’ Service Fees for each incident.
• The maximum amount of all Service Credit(s) shall not exceed one (1) months’ Service Fees (one-month Service Fee = annual subscription fee/12) in a year.

Claiming Service Credits: To claim a Service Credit, Customer shall submit a claim to Cumulus within thirty (30) days of the alleged event giving rise to the Service Credit. The claim must be sent to support@cumulusds.com and must include:

• the words “SLA Credit Request” or something reasonably similar, in the subject line;
• the dates and times of each incident;
• logs that document the claimed outage (any confidential or sensitive information in these logs should be removed or replaced).
• screenshots (if available).
• Service Credits, if applicable, will be applied to next subsequent Cumulus invoice. If Customer does not renew the SaaS Service for a subsequent term, Cumulus shall issue a refund in the amount of all accrued Service Credits promptly following the expiration of the Service Term in which such Service Credits accrued.  

Customer’s failure to abide by the above, shall not preclude the availability of Service Credits if Customer’s claim for Service Credits has been in good faith and Cumulus is not prejudiced by Customer’s failure to strictly comply with the above.