Company offers accounting, business and/or consulting services, or other offering as specified in the Order Schedule. Sage Intacct and Company mutually desire to enter into a relationship as further described in the Order Schedule(s) and below:

1. Definitions

1.1 “Agreement” means collectively, these Terms and Conditions, together with each Order Schedule and all attachments, exhibits, schedules, policies, and instructions incorporated by reference thereto.

1.2 “Company” means the entity identified as such on the first page of this Agreement.

1.3 “Company Data” means information submitted by, or entered by a User including, but not limited to, account information, credit card information, bank account information, accounting information, transactions and reports.

1.4 “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, but not limited to, the terms and conditions of this Agreement, and any information that relates to business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party.

1.5 “Customer” means a client, customer or franchisee of Company who sublicenses from Company the Services that are bundled with Company’s product, service or business opportunity and who enters into an agreement between Company and Customer in a form substantially similar to the Supplemental Services Agreement attached hereto as Exhibit A or as subsequently amended by Sage Intacct.

1.6 “Customer Data” means information submitted by, or entered by a Customer or by Company for a Customer including, but not limited to, account information, credit card information, bank account information, accounting information, transactions and reports.

1.7 “Documentation” means the written instructions or manuals, including any updates thereto, relating to the use of the Services. Documentation may be more fully described in the applicable Order Schedule.

1.8 “Error” means the failure of the Services to substantially conform to the Documentation.

1.9 “Intellectual Property” means any intellectual property or proprietary rights, including but not limited to copyright rights, moral rights, trademarks (including logos, slogans, trade names, service marks), patent rights (including patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights, recognized in any country or jurisdiction in the world.

1.10 “Offering” means the Services offered as a bundle with Company’s product, service or business opportunity.

1.11 “Services” means the online, Internet-based On-Demand Financial Applications services (including Documentation therefor), more fully described in the Order Schedule, that are provided by Sage Intacct through use of the System.

1.12 “System” means the software and hardware used by Sage Intacct to provide the Services, including application software, Web and/or other Internet servers, any associated offline components, and all updates thereto.

1.13 “User” means any named individual who is an employee, consultant, contractor or agent of a Customer and who is authorized to use the Services on behalf of such Customer and for whom fees have been paid pursuant to the applicable Order Schedule. In addition, with respect to Services provided to Company, “User” also means any named individual who is an employee, consultant, contractor or agent of Company and who is authorized to use the Services, for whom Company has paid fees and who has been supplied user identifications and passwords by Company (or by Sage Intacct at Company’s request).

2. Licenses

2.1 License. Subject to the terms and conditions of this Agreement, Sage Intacct grants to Company a non-exclusive, non-transferable, non-sublicensable, limited license to:

(a) market and promote the Services for use with Company’s product(s) and/or service(s), solely as part of the Offering; and

(b) sublicense to Customers the use of the Services solely as part of the Offering by Customers’ Users, provided that each Customer enters into a Supplemental Services Agreement substantially in the form of Exhibit A and Company reports and pays the applicable fees to Sage Intacct as set forth in the Order Schedule; and

(c) if the XML Gateway is included in the Order Schedule, internally use the components of the XML Gateway to develop an integration between Company’s product(s) and/or service(s) and the Services; and

(d) appoint Users within Company, subject to payment therefor, to use the Services for Company’s own internal productive purposes.

2.2 Subscription. Each User must have a paid subscription. User subscriptions are for named Users and cannot be shared or used by more than one User, but may be transferred to new Users from Users who have terminated an employment or contracting relationship with Company, or who otherwise no longer require ongoing use of the Services.

2.3 Duration of User Subscriptions. Unless otherwise stated in the applicable Order Schedule: (a) all User subscriptions will begin and continue on an annual basis (the “Subscription Period”), (b) any additional User subscriptions added in the middle of a Subscription Period will continue for the remaining duration of that Subscription Period; (c) pricing for such additional User subscriptions will be the same as that for the pre-existing User subscriptions, prorated for the remainder of the then-current Subscription Period; and (d) all User subscriptions will automatically renew for additional Subscription Period(s) of the same duration, at the Sage Intacct per-User price in effect at the date of renewal unless either party gives the other party notice of non-renewal prior to the end of the relevant Subscription Period.

2.4 Restrictions. Company will not, and will not allow any Customer or other third party to (a) modify, copy, or otherwise reproduce the System in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the System; (c) provide, lease or lend the Services or System except as expressly authorized hereunder; (d) remove any proprietary notices or labels displayed on the System; (e) modify or create a derivative work of any part of the System; (f) use the Services or System for any unlawful purpose or (g) create Internet “links” to or from the Services or System, or “frame” or “mirror” any of Sage Intacct’s content which forms part of the Services or System.

2.5 Third-Party Providers. Certain third-party providers, some of which may be listed on pages within Sage Intacct’s website, offer products and services related to the Services, including implementation, customization and other consulting services related to customers’ use of the Services and applications (both offline and online) that work in conjunction with the Services, such as by exchanging data with the Services or by offering additional functionality within the user interface of the Services. Sage Intacct does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Sage Intacct as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Company or a Customer and a third-party provider, and any purchase by Company or a Customer of any product or service offered by such third-party provider, is solely between Company and/or the Customer, and such third-party provider.

3. Company Alliance Obligations

3.1 Marketing Obligations. Company will use commercially reasonable efforts to market the Offering to current and prospective Customers. Company will prominently display (or retain the display of) the words “Powered by Sage Intacct” on each web page that displays the results of the Services. Company’s additional marketing obligations will be as set forth in Order Schedule.

3.2 Customer Satisfaction. Company agrees that high Customer satisfaction is material to the success of this Agreement, and that direct contact with Customers is required to achieve such high satisfaction. Company agrees to:

(a) Have at least one person trained on the use of the Services;

(b) Verify the successful operation of the Services before or after implementation or integration, as applicable;

(c) Report promptly to Sage Intacct all suspected and actual problems with the Services;

(d) Conduct business in a manner which reflects favorably at all times on the Services, goodwill and reputation of Sage Intacct;

(e) Avoid deceptive, misleading or unethical practices that are or might be detrimental to Sage Intacct or the Services;

(f) Refrain from making any false or misleading representations with regard to Sage Intacct or the Services;

(g) Refrain from making any representations, warranties, or guarantees to Customers or other third parties with respect to the specifications, features or capabilities of the Services that are inconsistent with this Agreement or the Documentation; and

(h) Refrain from marketing the Services or the Offering directly or indirectly via mass-marketing channels such as mail order, bulk e-mail or bulk faxing. In any case, Company will comply with any and all applicable mass marketing laws and regulations.

3.3 Co-Branding. Company has the option to offer a version of the Services that displays both Company’s and Sage Intacct’s identities (“Co-Branded Service”), as follows:

(a) At its option, Company will send Sage Intacct electronic artwork of its logo or its firm’s identity. The instructions for sending electronic artwork to Sage Intacct and Sage Intacct’s co-branding policies may be obtained from Sage Intacct Customer Support. Sage Intacct retains the right to approve or disapprove any design’s conformance to Sage Intacct’s co-branding policies. Such approval will not be unreasonably withheld.

(b) Upon receipt of approved artwork from Company, Sage Intacct will create a sample co-branded web page in a reasonable period and send the sample to Company. Company will give Sage Intacct its approval via e-mail confirmation of the co-branded web page as the identity to be used for the Co-Branded Service. Any alterations requested by Company after approval are subject to additional consulting charges. Upon approval, Sage Intacct will then send to Company via e-mail, a URL (Uniform Resource Locator) reference on the World Wide Web, which may be used to launch the Co-Branded Service. Company may permit its Customers to access the Co-Branded Service via clicking on a hyperlink on Company’s web site or by logging into Sage Intacct’s Site. Other login methods must be agreed to in advance by both parties.

(c) Company acknowledges that some of the services offered as a part of the Co-Branded Service may display the trademarks, trade names or copyright notices of third party organizations. Company agrees to the display of such names and marks.

(d) Company will have access to marketing materials, online demonstration software, preview versions of new applications, and demonstration data made generally available on the Sage Intacct web site. Company acknowledges that any and all of the Sage Intacct-provided materials that Company may receive, display, download, or otherwise utilize may be copyrighted by Sage Intacct or third parties. Company will not alter such documents in any way and agrees to prominently display such copyright and trademark claims when using or reproducing such materials.

4. Fees and Payments

4.1 Fees. The fees applicable to this Agreement will be stated in Sage Intacct’s current price list. Sage Intacct reserves the right to change fees or to institute new fees at any time. Company will be notified in advance of the effective date of changes in fees or new fees via electronic mail. Such changes or new fees will become effective upon the later of Company’s next billing cycle or 30 days from the date of notice. Company will establish its own charges for the Services to its Customers at its sole discretion.

4.2 Payment and Reporting. Company agrees to pay the fees in the amounts and under the terms set forth in the Order Schedule. Company agrees to provide Sage Intacct with and maintain accurate Company information, including, without limitation, Company legal name, address, telephone number, email address, and a valid credit card (number and expiration date) with sufficient available credit or a valid bank account with sufficient funds for automatic charges by Sage Intacct. Failure to maintain this information may, at Sage Intacct’s option, result in suspension or termination of Company’s or its Customers’ right to use the Services.

4.3 Billing. For Company’s internal-use account, if any, and for each Customer account, Sage Intacct will charge Company’s bank account or credit card account, as applicable, at the beginning of each billing period for all fees then due and any applicable taxes on such amounts. In the event that funds are unavailable from Company’s account and Company’s account is 10 days or more overdue, in addition to any of its other rights or remedies, Sage Intacct reserves the right to terminate the applicable Order Schedule, this Agreement and/or access to the Services. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Company expressly agrees that if a Customer account is terminated because of Company’s non-payment, Sage Intacct may solicit the affected Customer to enter into a direct sales agreement with Sage Intacct. Subject to prior credit approval, Sage Intacct will grant payment terms to Company. Fees for the Services will be billed in advance of each Subscription Period. Subscriptions added in the middle of a Subscription Period will be pro-rated and billed in the next billing cycle. Company will pay amounts due and properly invoiced within thirty (30) days after receipt of invoice.

4.4 Third Party Fees and Costs. Company and its Customers are responsible for all third party expenses and charges associated with accessing the Services.

4.5 Taxes. All fees listed in the Order Schedule(s) are exclusive of any taxes. Company will be responsible for all taxes, including sales or use taxes, imposed on such amounts, excluding taxes on Sage Intacct’s net income.

4.6 Audit. During the term of this Agreement and for one year thereafter, Company will keep and maintain all books and records relating to all Customer accounts and the fees payable under this Agreement. At any time within such period, Sage Intacct may audit such books and records in order to verify the calculation and payment of fees under this Agreement. Any such audit will be conducted at Sage Intacct’s option by Sage Intacct personnel or a third-party accounting firm reasonably acceptable to both parties, during normal business hours at Company facilities, and on no less than fifteen (15) days’ prior written notice. Company will pay the full amount of any underpayment revealed by such audit. In addition, if an audit reveals an underpayment of more than five percent (5%) for the period covered by the audit, Company will also pay the auditor’s fee and any reasonable out of pocket expenses incurred by Sage Intacct in conducting such audit.

5. Proprietary Rights

5.1 Ownership. As between Sage Intacct and Company, Sage Intacct owns all rights, including Intellectual Property rights, in the Services and System, any materials relating thereto, and any modifications, enhancements, customizations, updates, revisions or derivative works thereof, and all results of consulting services, whether made pursuant to this Agreement or a separate statement of work. No transfer of ownership will occur under this Agreement. All rights not expressly granted to Company are reserved by Sage Intacct.

5.2 Feedback. Company, or Customers, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information provided to Sage Intacct (“Feedback”). For any and all Feedback, Company grants to Sage Intacct a non-exclusive, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense any Feedback in its products and services.

6. Confidentiality and Security

6.1 Confidential Information. Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the other party’s Confidential Information to any person or entity other than its officers, principals, employees and subcontractors who need access to such Confidential Information in order to effect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement.

6.2 Exceptions. The restrictions set forth in Section 6.1 will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party; (e) has been approved for release by the Disclosing Party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.

6.3 Injunctive Relief. The parties agree that a breach of Section 6.1 may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.

6.4 Company and Customer Data. Company Data and Customer Data shall be treated as Confidential Information under this Agreement. Sage Intacct and Company agree to comply with the privacy policy set forth at https://www.sageintacct.com/privacy_policy_full.php in collecting and using Company Data and Customer Data.

6.5 Security. Sage Intacct uses commercially reasonable practices, including encryption and firewalls, to ensure that Company Data is disclosed only to Company and Users. However, Company acknowledges that the Internet is an open system and Sage Intacct cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Company Data or Customer Data.

6.6 Passwords. As part of the registration process, Company will select passwords for accounts. Company is responsible for maintaining the confidentiality of passwords, and Company agrees that Sage Intacct has no liability with regard to the use of such passwords by third parties. Company agrees to notify Sage Intacct immediately if Company has any reason to believe that the security of Company’s account or any Customer’s account has been compromised.

7. Availability

7.1 Availability. Sage Intacct uses commercially reasonable efforts to maintain availability of the Services and System 24 hours per day, 7 days per week, in accordance with Sage Intacct’s Buy With Confidence Program found at https://www.sageintacct.com/customer-terms (the “Program”). Sage Intacct commits to achieve Service Availability of 99.8%, as defined in the Program. Beginning August 1, 2007, if Sage Intacct is unable to meet this level of Service Availability in any month, Sage Intacct will provide to Company an Availability PlusSM credit for the downtime, as defined in the Program. Company will receive a credit of 10% of the applicable subscription fees for the month in which the outage event(s) occurred for every 1% that Service Availability falls below 99.8%, up to a maximum of 50% of the applicable subscription fees for that month. In order to receive a credit Company must submit a request for credit to Sage Intacct within 15 days after the month in which the outage event(s) occurred. Any credit will be applied against subsequent monthly subscription fees due to Sage Intacct. The Availability Plus credit feature of the Program may be terminated by Sage Intacct at any time upon written notice. The commitment and credit above is for the benefit of Company only and is not extended to any Customer or other third party.

7.2 Downtime. Scheduled and unscheduled interruptions may occur, and Sage Intacct does not warrant uninterrupted availability of the System. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Standard Time, and designed to cause a minimum amount of interruption to Services and System availability. Company will be notified of scheduled interruptions in advance. In the event that an unscheduled interruption occurs, Sage Intacct will use commercially reasonable efforts to resolve the problem and return the System to availability as soon as practical. During these scheduled and unscheduled interruptions, Company may be unable to transmit and receive data through the Services. Company agrees to cooperate with Sage Intacct during the scheduled and unscheduled interruptions if assistance from Company is necessary in order to restore the System to working order.

7.3 Changes. Sage Intacct reserves the right to modify or temporarily suspend use of the Services or portions thereof. Sage Intacct may also impose temporary limits on certain features and services or temporarily restrict Company’s access to parts of the Services for maintenance or system administration purposes without notice or liability.

8. Support and Services

8.1 Support. Sage Intacct will provide technical support to Company as specified in the Order Schedule. Sage Intacct will provide second tier technical support to Company (and not directly to Customers) through a variety of systems, including on-line help, FAQ’s, training guides and templates and the use of live help. Customers and Users must first contact Company for support prior to requesting support from Sage Intacct directly.

8.2 Professional Services and Training. Sage Intacct will provide to Company the professional services and training specified in the Order Schedule or a separate Statement of Work signed by the parties. Any services, training or other requirements not expressly stated in the Order Schedule or a separate Statement of Work are outside the scope of work and will be provided only for additional fees. Fees for such items are payable as specified in the applicable Order Schedule and unless otherwise specified will be paid upon receipt of invoice. For the purposes of computing daily rates, Sage Intacct’s standard workday is 8 hours. Changes in any statement of work will be effective only if a change request is signed by the parties. If a Services implementation is delayed by Company and is not completed more than 6 months from the Effective Date, a 20% additional charge will apply for the consulting services involved. Sage Intacct is not obligated to maintain or support any customization to the System or Services except under a separate agreement signed by the parties.

8.3 Support of Company-Provided Services. Company agrees that it is Company’s sole responsibility to support its Customers’ use of additional services, products and/or technologies, and that Sage Intacct is in no way responsible for providing support for Company’s or Customer’s products, services or technologies.

9. Term and Termination

9.1 Term. Unless expressly stated otherwise in the applicable Order Schedule, the initial term of this Agreement and any Order Schedule hereunder will be 1 year from the Effective Date, and will automatically renew for successive 1 year periods unless one party notifies the other party that it does not wish to renew this Agreement at least 30 days prior to the end of the then-current term.

9.2 Termination for Cause. Either party may terminate this Agreement and/or the affected Order Schedule for cause upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In addition, Sage Intacct may terminate this Agreement immediately for any failure of Company to pay amounts due by it that are 10 days or more past due.

9.3 Effect of Termination. Termination will not relieve Company of the obligation to pay any fees due or payable to Sage Intacct prior to the effective date of termination, including annual fees, implementation fees, training fees, User subscription fees, or any other fees or payments that Company has committed to under the Agreement. Sections 5, 9.4, 10.4, 11, 12 and 14 will survive any termination or expiration of the Agreement. Sections 6.1-6.3 will survive for 3 years after termination of the Agreement.

9.4 Existing Customer Subscriptions. Termination of this Agreement will not affect the duration of any Customer User subscription properly entered into and paid for in accordance with this Agreement for the User subscription’s remaining Subscription Period.

9.5 Termination of Individual Accounts. Company may terminate individual Customer accounts, if any, without notice by canceling (“opting” out of) that account; provided that all transactions in progress prior to expiration or termination of this Agreement will be completed by Sage Intacct, and Company will pay any fees and charges associated with such transactions.

9.6 Return of Materials. All Confidential Information, designs, drawings, formulas or other data, financial information, business plans, literature, and sales aids of every kind will remain the property of the Disclosing Party. No later than 30 days after termination, each party will prepare all such items in its possession for shipment to the other at the Disclosing Party’s expense. The Receiving Party will not make or retain any copies of any confidential information.

9.7 Company and Customer Data. In the event of any termination of the applicable Order Schedule or this Agreement, Company Data will be made available to Company either from Sage Intacct or through a third party offsite storage provider for up to 90 days after termination. If a Customer’s account is terminated, Customer Data will be made available to Company or Customer either from Sage Intacct or through a third party offsite vault storage provider for up to 90 days after termination. Reasonable storage charges may apply.

10. Warranties

10.1 Authority. Each party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence. Each party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under the Agreement; that the execution, delivery and performance of the Agreement has been duly authorized; that the Agreement is enforceable in accordance with its terms; that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under the Agreement.

10.2 Warranty. Sage Intacct warrants that (i) the Services will function substantially in conformance with the Documentation and (ii) any consulting services provided by Sage Intacct will be performed consistent with accepted industry standards.

10.3 Notices and Correction of Errors. Company will notify Sage Intacct in writing of any Errors, and will require its Customers to do so. Sage Intacct will use commercially reasonable efforts, at its own expense, to determine if there is an Error, and to correct or remedy Errors within 30 days of such notice. Company will make reasonably appropriate adjustments to mitigate adverse effects of any Error until Sage Intacct corrects or remedies such Error, and will require its Customers to do so.

10.4 DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, INTACCT DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, SYSTEM, AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COMPANY ACKNOWLEDGES AND AGREES THAT NEITHER INTACCT NOR ANY SYSTEM, SERVICES, DOCUMENTATION, DATA, OR MATERIALS PROVIDED BY INTACCT WILL BE CONSTRUED AS PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO COMPANY, CUSTOMERS, END USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.
10.5 Remedies. For any breach of the warranties contained in Section 10.2 above, Company’s exclusive remedy, and Sage Intacct’s entire liability, shall be (i) in the case of an Error in the Services, the correction of Errors that cause breach of the warranty, or if Sage Intacct is unable to make the Services operate as warranted, Company shall be entitled to terminate this Agreement; and (ii) in the case of a breach of warranty with respect to the consulting services, the reperformance of the consulting services, or if Sage Intacct is unable to perform the consulting services as warranted, Company shall be entitled to recover the fees paid to Sage Intacct for the nonconforming consulting services.

11. Indemnification

11.1 Sage Intacct Indemnification. Sage Intacct agrees to indemnify Company against any losses or damages finally awarded against Company incurred in connection with a third party claim alleging that the Company’s use of the unaltered Services or System infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, provided that Company (a) provides prompt written notice of such claim to Sage Intacct, (b) grants Sage Intacct the sole right to defend such claim, and (c) provides to Sage Intacct all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, Sage Intacct may, at its sole option, (i) revise the Services and/or System so that they are no longer infringing, (ii) obtain the right for Company to continue using the Services and System, or (iii), terminate the Agreement upon 10 days notice. THIS SECTION 11.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF INTACCT AND THE EXCLUSIVE REMEDY OF COMPANY FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS.

11.2 Indemnification by Company. Company will defend, indemnify and hold Sage Intacct harmless against any loss or damage incurred in connection with a third party (including without limitation Customer) claim arising from (i) any allegation that Company Data, Customer Data, or the collection or use thereof by Sage Intacct or Company, infringes or misappropriates any third party right, or (ii) a claim related to Company’s modifications or misrepresentation of the Services in the marketing, use or provision of the Offering, or (iii) an allegation that the Offering infringes any third party right, including any Intellectual Property right, where the Services or System alone would not infringe; provided, that Sage Intacct (a) provides prompt written notice of such claim to Company, (b) grants Company the sole right to defend such claim, and (c) provides to Company all reasonable assistance.

12. Limitation of Liability

EXCEPT FOR LIABILITY ARISING UNDER SECTION 6.1 OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) WILL BE LIMITED TO THE LESSER OF $100,000 OR THE TOTAL AMOUNT PAYABLE TO INTACCT UNDER THIS AGREEMENT.

13. Publicity

13.1 Identity. Each party may identify the other party (a) on websites or in sales presentations or marketing materials provided that such website, lists or materials list only the party by name and/or logo and state generally the relationship between the parties, or (b) in disclosures to the extent required to meet legal or regulatory requirements.

13.2 Press. All media releases, public announcements, and public disclosures by either party relating to this Agreement or the subject matter of this Agreement (“Press Activities”), will be subject to review and approval by the other party prior to release, which will not be unreasonably withheld. Such approval will be deemed to be given if a party does not object to a proposed Press Activity within 10 business days of receiving a request for approval of a Press Activity.

13.3 Trademarks. All usage of the owning party’s trademarks must first be submitted to the owning party for approval (which must not be unreasonably withheld) of design, color and other details or will be exact copies of those used by the trademark owner. In addition, the other party will fully comply with all reasonable guidelines, if any, communicated by the owning party concerning the use of its trademarks.

14. General Provisions

14.1 Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (b) U.S. express mail, or national express courier with a tracking system, to the address specified in the applicable Order Schedule. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.

14.2 Independent Contractors. The relationship of Sage Intacct and Company is that of independent contractors. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer-employee, or agents of each other.

14.3 Governing Law Arbitration; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of California, excluding its conflict of laws provisions. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim or action arising out of or relating to the Agreement will be settled by binding arbitration in Santa Clara County, California, under the rules of the American Arbitration Association by three arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California for any action permitted under this Section, challenge to this Section, or judgment upon the award entered.

14.4 Assignment. The Agreement may not be assigned by either one of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.

14.5 Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either party to the other.

14.6 Compliance With Laws. Each party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering and/or using the Services.

14.7 Miscellaneous. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.

14.8 Counterparts; Fax Signatures. The Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The parties agree that facsimile signatures are valid signatures for enforcement of the Agreement.

14.9 Order of Precedence. These Terms and Conditions are hereby incorporated by reference for purposes of the Agreement between the parties. The Agreement constitutes the entire agreement between Sage Intacct and Company with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter. No modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings. Additional Order Schedules may be added to the Agreement by reference to these Terms and Conditions, provided that each such Order Schedule is signed by both parties. No term or condition contained in Company’s purchase order or similar document will apply unless specifically agreed to by Sage Intacct in writing, even if Sage Intacct has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Sage Intacct.

Exhibit A
Supplemental Services Agreement

This Supplemental Services Agreement (“Agreement”) governs the Sage Intacct On-Demand Financial Applications services (“Services”) provided to the company or entity (“Customer”) through the company that provides additional accounting or other software services to Customer (“Service Provider”). The Services are provided by Sage Intacct, Inc., who is a third party beneficiary of this Agreement. BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE “I ACCEPT” BUTTON, YOU AGREE TO BE BOUND BY THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CLICKING THE “I ACCEPT” BUTTON BELOW. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD CANCEL THE REGISTRATION BY EXITING THIS PAGE.

1. Services

1.1 License. Subject to the terms and conditions of this Agreement and the payment of fees to Service Provider, Service Provider grants Customer a non-exclusive, non-transferable, non-sublicenseable right to have its Users access and use the Services for its internal business purposes.
1.2 Users. A “User” is an employee or agent of Customer authorized to use the Services. Each User must have a paid subscription. User subscriptions are for named Users and cannot be shared or used by more than one User but may be transferred to new Users from Users who have terminated an employment or contracting relationship with Customer, or who otherwise no longer require ongoing use of the Services.
1.3 Restrictions. Services are provided by web-based software applications known collectively as the “System”. Customer shall not, and shall not allow any third party to, (a) modify, copy, or otherwise reproduce the System in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the software used in the System; (c) provide, lease or lend the Services or System to any third party as expressly authorized hereunder; (d) remove any proprietary notices or labels displayed on the System; (e) modify or create a derivative work of any part of the System; or (f) use the Services or System for any unlawful purpose.

2. Proprietary Rights

2.1 Ownership. Sage Intacct owns all rights, including intellectual property rights, in the Services and System. All rights not expressly granted to Customer are reserved.
2.2 Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information provided to Service Provider or Sage Intacct (“Feedback”). For any and all Feedback, Customer grants to Sage Intacct a non-exclusive, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense any Feedback in its products and services. Customer represents that it holds all intellectual or proprietary rights necessary to grant to Sage Intacct such license, and that the Feedback will not violate the personal, proprietary or intellectual property rights of any third party.

3. Privacy and Security

3.1 Privacy. Sage Intacct, as the operator of the Services, will collect and have access to Customer Data. Sage Intacct will collect, use, and treat Customer Data in accordance with the privacy policy set forth at https://www.sageintacct.com/privacy_policy_full.php in collecting and using Customer Data. “Customer Data” means information collected from, submitted by, or entered by Service Provider or Customer relating to Customer, including, but not limited to, account information, credit card information, bank account information, accounting information, transactions and reports.
3.2 Security. Customer acknowledges that the Internet is an open system and Sage Intacct cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Customer Data.
3.3 Password. Customer is responsible for maintaining the confidentiality of its passwords, and Customer agrees that Sage Intacct has no liability with regard to the use of such passwords by third parties. Customer agrees to notify Sage Intacct immediately if Customer has any reason to believe that the security of Customer’s account has been compromised.

4. Availability

Scheduled and unscheduled interruptions may occur, and there is no warranty or guarantee of uninterrupted availability of the Services. Normal software or hardware upgrades are scheduled for nights and weekends, Pacific Standard Time, and designed to cause a minimum amount of interruption to Services and System availability. During these interruptions, Customer may be unable to transmit and receive data through the Services. Customer agrees to cooperate with Sage Intacct during interruptions if assistance from Customer is necessary in order to restore the System to working order. In addition, the Services, or any features therein, may be modified or suspended by Sage Intacct at any time.

5. Support

All support for Customer’s use of the Services will be provided by Service Provider, and not by Sage Intacct.

6. Term and Termination

6.1 Cancellation. Customer may terminate this Agreement in conjunction with the termination of its agreement for services for Service Provider. Customer acknowledges that Sage Intacct may terminate Customer’s access to the Services if Service Provider is not current on Customer’s account, or for any other reason.
6.2 Termination for Breach. Sage Intacct also reserves the right to restrict, suspend or terminate Customer access to the System in whole or part without notice and without liability in the event of a Customer breach or threatened breach of this Agreement.
6.3 Customer Data. If this Agreement is terminated by Sage Intacct for reasons other than Customer breach, Customer Data will be made available to Customer either from Sage Intacct or through a third party offsite vault storage provider for up to ninety (90) days after termination. Charges may apply.

7. Warranty

EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICE PROVIDER AND INTACCT DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER INTACCT NOR ANY SYSTEM, SERVICES, DOCUMENTATION, DATA, OR MATERIALS PROVIDED BY INTACCT WILL BE CONSTRUED AS PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO CUSTOMER, END USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.

8. Indemnification

Customer shall defend, indemnify and hold Service Provider and Sage Intacct harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with claims made or brought against Service Provider or Sage Intacct by a third party alleging that the collection and use Customer Data infringes the rights of a third party; provided, that Service Provider or Sage Intacct (a) provides prompt written notice of such claim to Customer, (b) grants Customer the sole right to defend such claim, and (c) provides to Customer all reasonable assistance.

9. Limitation of Liability

IN NO EVENT SHALL SERVICE PROVIDER OR INTACCT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE LIABILITY OF INTACCT AND SERVICE PROVIDER REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR IN TORT) SHALL BE LIMITED TO $10,000.

SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF WARRANTIES OR LIMITATION OF LIABILITY, SO SECTIONS 7 AND 9 MAY NOT APPLY TO CUSTOMER.

10. Miscellaneous

10.1 Governing Law Arbitration; Venue. The validity, construction and interpretation of this Agreement shall be governed by the internal laws of the State of California, excluding its conflict of laws provisions. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim or action arising out of or relating to this Agreement shall be settled by binding arbitration in Santa Clara County, California, under the rules of the American Arbitration Association by 3 arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California for any action permitted under this Section, challenge to this Section, or judgment upon the award entered.

10.2 Assignment. This Agreement may not be assigned by either one of the parties by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Such consent is not required in connection with the assignment of this Agreement pursuant to a merger, acquisition or sale of all or substantially all of the assigning party’s assets.

10.3 Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent. This clause shall not apply to the payment of any sums due under this Agreement by either party to the other.

10.4 Service Provider Agreement. This Agreement supplements any other agreement between Customer and Service Provider. In case of any conflict between this Agreement and such other agreement with respect to the provision of the Services, the terms of this Agreement shall control.