Legal Terms: Subscription Services Agreement

This Subscription Services (“Agreement”) between you and Encompass + Orchestra, Inc. Inc., a Colorado corporation having its principal place of business at 420 Linden Street, Suite 200, Fort Collins, Colorado 80524 (“Encompass”) governs your access and use of the Encompass Products. Customer accepts this Agreement, which becomes binding on Customer upon the earlier date of Customer’s signing of an Order Form or acceptance of this Agreement and associated commercial terms as part of an online sign-up procedure or by accessing, browsing, or using the Encompass Products. This Agreement is effective between Customer and Encompass on the date of acceptance. You agree that you have read, understood, accept and agree to be bound by this Agreement and confirm that you are authorized by bind Customer. Encompass reserves the right to update this Agreement and any other information contained at any time as described below. By using the Encompass Products, you agree to be bound by the version of this Agreement that is in force during such use. You can always review the most current version by clicking on the Legal Terms link located at the bottom of the Encompass web page.

1. DEFINITIONS. Capitalized terms in this Agreement have the following meanings:

1.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with a party to this Agreement. With respect to Encompass, Affiliates will be limited to Encompass + Orchestra, Inc., and any entities that Encompass + Orchestra, Inc. controls through one or more intermediaries. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through ownership of fifty percent (50%) or more of the voting or equity securities of such entity or its assets.

1.2 “Aggregate Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable, and (ii) learnings, logs and data obtained by Encompass in connection with its provision of services.

1.3 “Beta Features” means a new feature or functionality of the Encompass Product that may be made available to Customer to try at its option at no additional charge, which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or similar description, including features or functionality made available via Encompass; a Beta Feature shall not be deemed part of the Encompass Product for purposes of this Agreement unless and until it is put into production.

1.4 “Competitor” means any entity that offers directly competitive functionality or services to those offered by Encompass.

1.5 “Customer” means the entity accepting this Agreement as described above and any Affiliate of such entity that executes an Order Form with Encompass, which must include a commitment by the Affiliate to be bound by the terms and conditions of this Agreement as though it were an executing party hereto.

1.6 “Customer Data” means electronic data, content, or other information collected, received, created, or hosted by the Encompass Product in connection with Customer’s or its Users’ use of the Encompass Product, including, for the avoidance of doubt, any personal data / personally identifiable information, all of which shall be considered Customer’s Confidential Information.

1.7 “Documentation” means the online user manuals that describe the functions, operation, and use of the Encompass Product, which Encompass makes available to subscribers in its customer portal.

1.8 “Encompass” means the Encompass entity that is the counterparty to the Order Form or Statement of Work as described in Section 11 below.

1.9 “Encompass Product” means the Encompass product designated in the applicable Order Form, including associated Documentation, hosted by Encompass as a Subscription Service.

1.10 “Encompass Data” means data created by, or resulting from, the use of the Subscription Services, including analyses, statistics, reports, and aggregations, which (a) excludes all personally identifiable information, such that there is no reasonable basis on which any individual, or Customer itself, could be identified by the Encompass Data and (b) shall be considered Encompass Confidential Information.

1.11 “Error” means any error or defect in a Encompass Product that causes it not to conform in material respects to the Documentation and “Error Correction” means a modification to the Encompass Product that corrects an Error.

1.12 “Improvements” means updates, enhancements, extensions, modifications, and new releases to the Encompass Product (other than Error Corrections) that Encompass elects to incorporate into and make a part of the Encompass Product, and for which Encompass does not charge an additional Subscription Services fee.

1.13 “Intellectual Property Rights” means any and all worldwide intellectual property rights, including copyright, rights in registered and unregistered trademarks (including domain names), trade secrets, patents, trade or business names, know-how, database rights, and other proprietary rights (including rights in any invention, discovery, or process), whether registered or unregistered, statutory, or common law, under any applicable laws anywhere in the world, and all moral rights related thereto.

1.14 “Order Form” means the document for ordering Subscription Services or other Encompass products and services (excluding Professional Services) executed by the parties from time to time, which is incorporated into and bound by the terms of this Agreement and that specifies, among other things and as appropriate, the Encompass Products being subscribed to, the number of Users, the Subscription Period, and the applicable fees. For avoidance of doubt, accepting this Agreement and associated commercial terms as part of an online sign-up procedure, or in any other way by Customer shall constitute executing an “Order Form” for purposes hereof.

1.15 “Professional Services” means the services performed by Encompass to set up the Encompass Product, as described in one or more Statements of Work referencing this Agreement.

1.16 “Project Materials” means (a) the productized Encompass documents, reports, training courses, and course materials, as customized by Encompass for Customer’s set up and use of the Encompass Product and/or (b) Encompass Product-specific interfaces and code customizations created by Encompass for Customer’s use with the Encompass Product, each (if applicable) as defined in a Statement of Work.

1.17 “Statement of Work” means the document for ordering Professional Services executed by the parties from time to time, which is governed by the terms of this Agreement and that specifies, among other things and as appropriate, the scope of Professional Services to be provided, the timeframe for performance, and the applicable fees.

1.18 “Subscription Period” means the term to which Customer subscribes to a Subscription Service, as set forth in the applicable Order Form.

1.19 “Subscription Services” means services provided by Encompass on a subscription basis, including, but not limited to, the hosting of Encompass Products, the provision of Premium Support, and subscription Professional Services, if and as described in an Order Form.

1.20 “Support Services” means (a) Encompass’s standard support services for the Encompass Product or (b) if purchased by Customer, Encompass’s premium support services for the Encompass Product, as described (“Premium Support”); the terms for both standard support and premium support (“Support Terms”) are found at https://info.encompasstech.com/encompass-sla. Generally, Support Services include the deployment of Error Corrections and Improvements but exclude Upgrades.

1.21 “Upgrades” means significant or material new features, functions, or capabilities of the Encompass Product that Encompass makes available to its customers for an additional Subscription Services fee.

1.22 “User(s)” means Customer's employees, consultants, and contractors (provided they are not Competitors) who are designated by Customer to use the Encompass Product and have been supplied user identifications and passwords (“Access IDs”) by Customer.

2. ENCOMPASS OBLIGATIONS

2.1 Subscription Services and Support Services. Encompass will make the Subscription Services available to Customer for the Subscription Period, pursuant to the terms of this Agreement and any applicable Order Form and Statement of Work. During the applicable Subscription Period, (a) the Encompass Product will perform materially in accordance with the Documentation, (b) the functionality of the Encompass Product will not be materially decreased from that available as of the first day of the Subscription Period, and (c) Encompass will provide Support Services.

2.2 Professional Services. Encompass will provide the Professional Services as described in each Statement of Work. Encompass is responsible for the supervision, direction, and control of its personnel engaged in providing Professional Services. Encompass may subcontract any aspect of the Professional Services and Encompass will be responsible for the performance of any such subcontractor. Encompass’s performance of the Professional Services is contingent upon Customer’s timely and effective performance of its responsibilities, decisions, and approvals, and Encompass may rely on Customer decisions and approvals.

2.3 Data Privacy and Security; Business Continuity

2.3.1 Data Privacy. Encompass will in addition to its confidentiality obligations under Section 6, collect, use, and process Customer Data solely in accordance with Encompass’s Privacy Statement found at https://www.encompasstech.com/privacy-policy/. If Encompass processes any personal data of individuals on Customer’s behalf when performing its obligations under this Agreement, then the parties record their intention that Customer is the data controller or data intermediary (as defined under applicable data protection/data privacy laws) and Encompass is the data processor and, in any such case, Customer shall ensure that it is entitled to transfer the relevant personal data to Encompass so that it may lawfully process the personal data on Customer’s behalf. Furthermore, it is Customer’s responsibility to inform its employees and/or consultants that their data is processed for authentication purposes on Encompass Products, and that access logs are kept for security audit purposes.

2.3.2 Data Security. Encompass has implemented and will maintain security procedures and practices appropriate to information technology service providers designed to protect Customer Data from unauthorized access, destruction, use, modification, or disclosure. In addition, as applicable to each Encompass Product (as specified in the Security Plans), Encompass will maintain sufficient controls to meet the objectives stated in PCI DSS, and/or SOC 1, or equivalent standard (as the case may be) (collectively, the “Standards”). Once per calendar year, Encompass will obtain an assessment against such Standards by an independent third-party auditor and, on Customer’s request, will share a summary of the results. If Customer requires Encompass to respond to privacy and security questionnaires or assessments that are not capable of being readily completed by referencing existing Encompass policies and procedures, or the summary assessment results referenced herein, then Encompass will have the right to charge Customer for the time of its personnel in connection therewith.

2.3.3 Business Continuity. Encompass hosts the Encompass Products at data centers that have attained SSAE 18 Type 2 attestations or have ISO 27001 certifications (or equivalent or successor attestations) for the Subscription Period. Each data center includes full redundancy (N+1) and fault tolerant infrastructure for electrical, cooling, and internet. Production data is backed up according to each Encompass Product’s Recovery Point Objective (RPO) to a different data center location. Base servers are replicated in near real-time to a mirrored data center. Encompass backs up all Customer Data in accordance with Encompass’s standard operating procedure.

2.4 Beta Features. From time to time, Encompass may make Beta Features available to Customer at no charge. Customer may choose to try such Beta Features or not in its sole discretion. Notwithstanding anything to the contrary in this Agreement, Beta Features are for evaluation purposes and not for production use, are not supported, are not covered by any warranty (except as required by law) or service level commitment and may be subject to additional terms. Encompass may discontinue Beta Features at any time in its sole discretion and may never make them generally available. Encompass will have no liability for any harm or damage arising out of or in connection with any Beta Feature.

3. CUSTOMER RESPONSIBILITIES

3.1 Professional Services Assistance. Customer shall assist Encompass in connection with the setup of the Encompass Product as set forth in the applicable Statement of Work.

3.2 Access IDs; Named Users. Customer is responsible for maintaining the confidentiality of all Access IDs and for all acts that occur with them in connection with Customer’s account. Customer must notify Encompass promptly after learning of any unauthorized use of Customer’s account, breach of security, or loss or theft of Access IDs. Subscription Services fees are based on named Users and therefore Access IDs cannot be shared or used by more than one User, however, they may be reassigned by Customer from time to time to new Users, replacing Users who no longer require access to the Encompass Product. Encompass may remotely review Customer’s use of the Subscription Services, and on Encompass’s request, Customer will provide reasonable assistance to verify Customer’s compliance with the limitations on its rights to access and use the Subscription Services. If Encompass determines that Customer has exceeded its permitted access and use rights, Encompass will notify Customer and within thirty (30) days thereafter Customer shall either (a) disable any unpermitted use, or (b) purchase subscriptions for the excess Users in minimum increments of twenty-five (25) Users, at Encompass’s then-current price. The number of Users cannot be decreased during the applicable Subscription Period.

3.3 Use Guidelines and Restrictions. Customer shall use the Encompass Product in accordance with the Documentation, this Agreement, and with all applicable laws. Customer shall not: (a) publish, disclose, copy, rent, lease, modify, loan, distribute, sell, resell, transfer, assign, alter, or create derivative works based on the Encompass Products or Subscription Services, or any part thereof; (b) reverse engineer, decompile, translate, adapt, or disassemble the Encompass Products or Subscription Services, including to: (i) build or create a competitive product or service, and (ii) build or create a product or service using similar ideas, features, functions, or graphics of the Encompass Product, nor shall Customer attempt to create the source code from the object code for the Encompass Product; (c) permit any third party to access the Encompass Product except as expressly permitted herein or under an Order Form or Statement of Work; or (d) create any unauthorized Internet “links” to the Subscription Services or “frame” or “mirror” any content of the Encompass Product.

4. FEES AND PAYMENT

4.1 Subscription Services Fees. In consideration of the Subscription Services, Customer will pay Encompass the applicable fees therefor, as stated in each applicable Order Form.

4.2 Professional Services Fees; Expenses. In consideration of the Professional Services, Customer will pay Encompass the applicable fees therefor, as stated in each applicable Statement of Work. Unless otherwise set forth in the applicable Statement of Work, Customer will pay Encompass for Professional Services on a fixed fee basis. Any estimates regarding fees charged on a time and materials basis for Professional Services are good faith estimates only, based on information known to Encompass at the time the estimate is made; such estimates are not fixed fees or fee guarantees. Customer agrees to reimburse Encompass for all miscellaneous out-of-pocket expenses incurred by Encompass in performing the Professional Services, as well as for reasonable travel expenses, provided such expenses have been pre-approved by Customer. Reimbursement of travel expenses will be in accordance with Encompass's travel expense policy, a copy of which will be provided to Customer upon request.

4.3 Invoicing and Payment. Encompass will invoice all fees in accordance with the applicable Order Form and Statement of Work. All fees are payable in the currency set forth in the applicable document and, if not otherwise specified, all payments are due in United States Dollars ($USD) in full without set off, deduction or withholding of any kind within thirty (30) days from the invoice date. Except as otherwise expressly provided in this Agreement, all fees are non-refundable. Encompass does not require Customer to issue a Purchase Order in order for Encompass to invoice Customer for applicable fees. If Customer requires a Purchase Order number to be included on an invoice in order for the invoice to be processed for payment by Customer, then Customer must issue to Encompass a Purchase Order and/or Purchase Order number: (i) not more than five (5) business days after execution of a new Order Form or Statement of Work and (ii) not less than sixty (60) days prior to the renewal date of a multi-year Subscription Period under an existing Order Form. If Customer fails to timely issue a Purchase Order or Purchase Order number, then Encompass will nonetheless be entitled to issue the applicable invoice, which must be paid within the timeframe specified herein in order to avoid Encompass’s remedies for late payment as specified in Section 4.4 below.

4.4 Remedies for Late Payment. Without prejudice to its other rights and remedies, Encompass may charge Customer interest at the lesser of one and one-half percent (1.5%) or the maximum legally permitted rate, if any, on any outstanding balance due from Customer, from the date such payment was first past due until the date paid. In addition, if Customer's account is thirty (30) days or more past due, Encompass reserves the right to suspend the Subscription Services and related Professional Services, until such amounts are paid in full. The foregoing remedies will not apply to the extent a payment is the subject of a good faith dispute between the parties, provided that Customer has notified Encompass of such dispute and is working in good faith with Encompass to expeditiously resolve the dispute.

4.5 Taxes. Unless otherwise stated, Encompass’s fees do not include any local, state, provincial, federal, or foreign taxes, levies, or duties of any nature (including VAT, value-added, or good and services). Customer is responsible for such amounts in addition to the fees, excluding taxes based on Encompass’s net income.

5. PROPRIETARY RIGHTS

5.1 Encompass’s Rights. As between the parties, Encompass owns all right, title, and interest, including all Intellectual Property Rights, in and to (a) the Encompass Products (and all Improvements, and Error Corrections), the Subscription Services, the Documentation, and the Project Materials, (b) the Encompass trademark and any other trademarks used with the Encompass Products or services provided by Encompass hereunder, (c) the Encompass Data, (d) the Aggregate Data, and (e) all other Encompass-supplied material developed for use in connection with the Encompass Product or Subscription Services generally, exclusive of Customer Data. For the avoidance of doubt, Project Materials are provided to Customer solely for use with the Encompass Product and for no other purpose. Nothing in this Agreement shall be deemed to limit Encompass’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Professional Services. Any rights not expressly granted herein are reserved by Encompass. Except for the access and use rights expressly set forth in this Agreement, no other rights in or to Encompass’s intellectual property are granted to Customer. In no event shall any Encompass Product be deemed to have been sold to Customer, even if, for convenience, Encompass uses words such as “sale” or “purchase” in Order Forms or other documents or communications. Customer agrees that Encompass may generate Aggregate Data, and notwithstanding anything to the contrary herein, the parties agree that Encompass may use Aggregate Data at any time. Customer agrees that Encompass may (i) make Aggregate Data publicly available in compliance with applicable law, and (ii) use Aggregate Data to the extent and in the manner permitted under applicable law; provided that such Aggregate Data do not identify Customer Data or Customer’s Confidential Information and is unable to be reidentified.

5.2 Customer Data. As between the parties, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Encompass a royalty- free, fully paid, non-exclusive, non-transferrable (except as set forth in Section 11.7 (Assignment)), and worldwide right to access and use Customer Data solely to provide the Encompass Products and perform services in support thereof. Encompass is not responsible for reviewing and/or validating the Customer Data for accuracy, correctness, compliance with applicable law, or usability.

6. CONFIDENTIALITY

6.1 Confidential Information. “Confidential Information” means any information disclosed by either party (“Discloser”) to the other party (“Recipient”), in any form, that (a) Discloser identifies at the time of disclosure as confidential or proprietary or (b) should otherwise reasonably be understood by Recipient to be confidential or proprietary given the nature of the information, its legends and markings, or the circumstances of disclosure. Confidential Information may also include third-party confidential or proprietary information disclosed to Recipient. Recipient’s obligations under this Section 6 will not apply to any Confidential Information that Recipient can document: (i) was or becomes in the public domain through no fault of Recipient; (ii) was rightfully known by Recipient, free of any restriction on use or disclosure, prior to receiving the information from Discloser; (iii) is rightfully acquired by Recipient from a third party who has the right to disclose it and provides it free of restriction on use or disclosure; or (iv) was independently developed by Recipient without reference to any Confidential Information.

6.2 Recipient’s Obligations. Recipient will treat all Confidential Information with the same degree of care as Recipient accords to Recipient’s own confidential information, but in no event less than reasonable care. Recipient will not use, copy, disseminate, or disclose any Confidential Information except to the extent necessary for the purpose of providing and/or receiving the Subscription Services, Professional Services, and/or Documentation under this Agreement or to enforce its terms (collectively, the “Purpose”). Recipient will disclose Confidential Information only to those of its employees, agents, officers, directors, and advisors who need to know such information for the Purpose and who are bound by confidentiality obligations no less protective than those required under this Section 6 (each, a “Representative”). Recipient will be responsible for any Representative’s failure to comply with the terms of this Section 6. Disclosure to anyone other than a Representative will require Discloser’s prior written consent. Recipient will give prompt notice to Discloser of any unauthorized use or disclosure of Confidential Information of which it becomes aware and will assist Discloser in remedying any such unauthorized use or disclosure. Recipient may not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody Confidential Information and that are provided to Recipient under this Agreement.

6.3 Compelled Disclosure. A disclosure by Recipient of any Confidential Information that is (a) legally compelled by a court of competent jurisdiction or required by a regulatory or governmental body to be disclosed, or (b) necessary to enforce this Agreement, will not be considered a breach of this Agreement; provided, however, that Recipient will, if legally permitted, provide Discloser (i) prompt notice thereof prior to the compelled disclosure so that Discloser may seek an appropriate protective order or other remedy, and (ii) reasonable assistance in obtaining any such order or remedy. If Recipient is nonetheless legally compelled or otherwise required to disclose, then it will disclose only that portion of the Confidential Information that is legally required and will make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information so disclosed.

6.4 Return or Destruction of Confidential Information. All documents, materials, and other tangible or intangible objects furnished to Recipient by Discloser (whether or not they contain or disclose Discloser’s Confidential Information) are the property of Discloser and all summaries, copies, and excerpts thereof made by Recipient or otherwise in Recipient’s possession are and will remain the property of Discloser. After any request by Discloser, Recipient will promptly return or destroy all such documents, materials, and objects, as well as all such summaries, copies, and excerpts. Notwithstanding the foregoing, Recipient may retain a copy of Confidential Information to the extent required for reasonable internal risk, insurance, or audit purposes, as well as any electronic copies made as part of Recipient’s standard backup and archival practices, provided that any such Confidential Information retained shall remain subject to the terms and obligations set forth in this Agreement.

6.5 Injunctive Relief. Each party agrees that its obligations under this Section 6 are necessary and reasonable in order to protect Discloser and its business, and expressly agree that monetary damages may be inadequate to compensate Discloser in the event of a breach of this Section. Accordingly, each party acknowledges that any such breach or threatened breach may cause irreparable and continuing injury to Discloser and that, in addition to any other remedies that may be available in law, at equity, or otherwise, Discloser will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond to obtain a preliminary injunction. However, the foregoing will not relieve a party of its obligation to demonstrate harm to obtain a permanent injunction.

7. WARRANTIES, REMEDIES, AND DISCLAIMER

7.1 Warranties. Encompass warrants that (a) it will provide the Encompass Product in a manner that materially conforms with the Documentation and (b) it will perform the Professional Services in a competent and workmanlike manner that materially conforms to the Statement of Work requirements.

7.2 Exclusions. Encompass will have no obligation or liability of any kind for a breach of Section 7.1(a) to the extent a warranty claim arises from Customer’s access to or use of the Encompass Product (a) not expressly authorized under this Agreement, (b) in violation of applicable law, (c) as modified by anyone other than Encompass or its contractors, or (d) in combination with any non-Encompass-provided hardware, software, or data with which it was not initially set up by Encompass or subsequently expressly approved by Encompass (“Excluded Combinations”), in each case if breach of warranty would not have occurred but for such access or use. If Encompass provides services in response to a warranty claim and determines that the claim was caused by any of the foregoing exclusions, then Encompass may impose charges at its then- standard time and materials rates, including travel and out-of-pocket expenses.

7.3 Remedies. If the Encompass Product fails to perform as warranted, then Customer must report the relevant Error to Encompass within thirty (30) days after becoming aware of it by submitting a Support Services ticket, and, if Encompass is able to recreate the Error, it will correct or provide a permanent workaround at no additional charge. If Encompass fails to provide the Professional Services as warranted, then Customer must report such failure to Encompass within five (5) days after the performance thereof, and Encompass will re- perform such Professional Services at no additional charge. The provisions of the Section constitute Customer’s sole and exclusive remedy, and Encompass’s sole and exclusive liability, for breach of the warranty set forth above.

7.4 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED HEREIN, ENCOMPASS MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE. ENCOMPASS DOES NOT WARRANT THAT THE ENCOMPASS PRODUCT WILL BE UNINTERRUPTED, ACCURATE, OR ERROR-FREE OR THAT IT WILL BE SUITABLE FOR OR MEET THE REQUIREMENTS OF CUSTOMER.

8. MUTUAL INDEMNIFICATION

8.1 Indemnification by Encompass

8.1.1 Subject to Section 8.3, Encompass will (a) defend Customer from any third-party claims, demands, suits, or proceedings (“Claims”) made or brought against Customer to the extent alleging that the use of the Encompass Product infringes a registered patent or copyright of a third party or misappropriates a trade secret, and (b) pay, with respect to any such Claim, all court-ordered awards of damages or amounts agreed to in settlement by Encompass.

8.1.2 Should the Encompass Product become, or in Encompass’s opinion be likely to become, the subject of a Claim for which indemnity is provided under Section 8.1.1, Encompass will, at its option and expense, either (a) obtain for Customer the right to continue to use the Encompass Product or (b) replace or modify the Encompass Product so that it becomes non-infringing while providing substantially similar features and functions. If Encompass, in its sole discretion, determines that neither of these alternatives is commercially reasonably available, then Encompass will terminate Customer’s access to and use of the Encompass Product and reimburse Customer for any prepaid, unused Subscription Service fees therefor, for the remainder of the then-current Subscription Period.

8.1.3 Encompass will have no obligation or liability for any Claim under Section 8.1.1 to the extent arising from (a) Customer’s access to or use of the Encompass Product (i) not expressly authorized under this Agreement, (ii) in violation of applicable law, (iii) after termination under Section 8.1.2, (iii) as modified by anyone other than Encompass or its subcontractors, or (iv) Excluded Combinations, in each case if the Claim would not have occurred but for such access or use; or (b) Customer Data.

8.2 Indemnification by Customer. Customer will (a) defend Encompass from any Claims made or brought against Encompass alleging that the Customer Data (or Encompass’s use of it in accordance with this Agreement) or Customer's access to or use of the Encompass Product in a manner falling under one of the exceptions set forth in Section 8.1.3 infringes or misappropriates the Intellectual Property Rights of, or has otherwise harmed, a third party and (b) pay, with respect to any such Claim, all court-ordered awards of damages or amounts agreed to in settlement by Customer.

8.3 Indemnification Process. The obligations of the parties under this Section are conditioned on the indemnified party (a) notifying the indemnifying party promptly of any actual or threatened Claim (provided, that the failure to provide prompt notice will not limit the indemnifying party’s obligations under this Section unless and to the extent it was materially prejudiced thereby), (b) giving the indemnifying party sole control of the defense of such Claim and of any related settlement negotiations, and (c) cooperating with and, at the indemnifying party’s reasonable request and expense, assisting in the defense and settlement of the Claim. The indemnifying party will not settle a Claim in a manner that requires the indemnified party to admit fault or liability or admits same on the other party’s behalf, without its prior consent. This Section 8.3 states each party’s entire liability and the other party’s exclusive remedy for any Claims.

9. LIMITATIONS OF LIABILITY

9.1 Cap on Direct Damages. SUBJECT TO SECTION 9.3, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

9.2 Exclusion of Consequential and Related Damages. SUBJECT TO SECTION 9.3, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR LOSS OF OR DAMAGE TO RECORDS OR DATA, ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (INCLUDING COSTS OF COVER), OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGE OR LOSS HOWEVER CAUSED AND IRRESPECTIVE OF THE THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

9.3 Excluded Claims, Cumulative Remedies. The limitations and exclusions of liability shall not apply to (a) payments arising from a party’s obligations under Section 8 (Indemnification), or (b) loss or damage arising from (i) infringement or misappropriation by a party of the other party’s Intellectual Property Rights, or (ii) willful misconduct, or fraud or that cannot legally be limited by contract. Damages arising from a party’s breach of its obligations under Section 6 (Confidentiality) are excluded from Section 9.2 but are subject to Section 9.1. Other than as expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies available to a party at law or in equity.

10. TERM AND TERMINATION

10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until the stated Subscription Period in all Order Forms have expired or been terminated.

10.2 Term of Subscription Services. Subscription Services commence on the start date specified in the applicable Order Form and continue for the Subscription Period specified therein unless earlier terminated in accordance with the terms of this Agreement. Subscription Services shall automatically renew for the then-current number of Users for successive periods equal to the prior Subscription Period unless either party provides the other with notice of non-renewal at least sixty (60) days before the end of the then- current Subscription Period.

10.3 Termination for Cause. A party may terminate this Agreement for cause (a) immediately on notice, if the other party’s material breach of this Agreement remains uncured for a period of sixty (60) days after receipt of notice specifying the material breach from the non-breaching party; or (b) immediately on notice, if the other party has (i) committed a material breach of this Agreement that is incapable or remedy or (ii) is the subject of any corporate action, application, order, proceeding, appointment, or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise), or bankruptcy, or if it is unable to pay its debts as they fall due.

10.4 Effects of Termination. Upon expiration or termination of this Agreement for any reason, Encompass will disable access to the Subscription Service and cease providing Support Services and Professional Services. Upon any termination of this Agreement for cause by Customer, Encompass shall refund any prepaid Subscription Services fees for the remainder of the Subscription Periods of all outstanding Order Forms after the effective date of termination. Upon any termination of this Agreement for cause by Encompass, Customer shall pay any unpaid Subscription Services fees for the remainder of the Subscription Periods of all outstanding Order Forms, which shall be accelerated and become immediately due and payable, to the extent permitted by applicable law. In no event shall termination of this Agreement relieve Customer of the obligation to pay any fees accrued or payable to Encompass for services under any Order Form or Statement of Work performed prior to the effective date of termination. Sections 1, 4, 5, 6, 8, 9.1-9.3, 10.4,10.5, and 11 shall survive any expiration or termination of this Agreement.

10.5 Return of Customer Data. Upon request by Customer made within thirty (30) days after the effective date of expiration or termination of this Agreement, Encompass will work with Customer to arrange for retrieval of Customer Data; depending on factors such as quantity of data, multi- or single-tenant hosting, and format of data file, Encompass reserves the right to charge Customer a reasonable fee for retrieval. Customer may, upon request, extend the retrieval period to a total of ninety (90) days, provided such request is made within thirty (30) days after expiration or termination. After the retrieval period, Encompass will have no obligation to maintain or provide any Customer Data and will, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

11. GENERAL PROVISIONS

11.1 Notice. All notices under this Agreement shall be in writing and shall be deemed to have been given and received upon: (a) personal delivery; (b) three (3) business days after sending by registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (d) except for notices of termination or an indemnifiable claim, which shall clearly be identified as such, the day of sending by email. All communications to Customer will be to the contact and address specified above (or such other address as a party may later specify by notice to the other). Notices to Encompass shall be addressed to the address listed above and to the attention of the CFO, with email notices being sent to Encompass at legal@encompasstech.com.

11.2 Relationship of the Parties; Third-Party Beneficiaries. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. There are no third-party beneficiaries to this Agreement.

11.3 Entire Agreement; Order of Precedence. This Agreement, including any documents referenced herein, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency between the following documents, the order of precedence shall be: (a) the applicable Order Form or Statement of Work, (b) this Agreement, and (c) the Documentation and Support Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer-initiated order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The section headings in this Agreement are solely for the convenience of the parties and have no legal or contractual effect.

11.4 Amendment; Waiver. Encompass reserves the right to amend the terms and conditions of this Agreement. The Customer shall be informed of such amendments by e-mail or through the information being made available on the Encompass website. The Customer shall be deemed to have received such notice within two (2) weeks of the notice being sent by e-mail or made available on the website. Where the Customer does not accept the amendment, the Customer shall be entitled, within thirty (30) calendar days from the date of dispatch of the e-mail or, where appropriate, thirty (30) calendar days from the amendment being published on the website, provided that the changes have an adverse effect, that could not be considered as minor, on the Customer, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions. Otherwise, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. No failure or delay by either party in exercising or enforcing any right under this Agreement shall constitute a waiver of that right.

11.5 No Reliance. Each party acknowledges and agrees that, (a) in entering into this Agreement, it does not rely on and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to this Agreement or not) which is not expressly set out in this Agreement, and (b) the only remedy available to it for breach of any statement, representation, warranty or other term which is expressly set out in this Agreement shall be for breach of contract under the terms of this Agreement.

11.6 Severability. If any provision of this Agreement is determined in any proceeding binding upon the parties to be invalid or unenforceable, that provision shall be deemed severed from this Agreement, and the remaining provisions of this Agreement shall remain valid and in effect.

11.7 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (with the exception of Sections 4 and 6) for causes beyond that party’s reasonable control, including, but not limited to, acts of God, acts of government, pandemic, epidemic, accident, flood, fire, extreme weather conditions, civil unrest, war, riot, theft, malicious damage, acts of terror, power failure, failure of telecommunications networks or default of suppliers or sub-contractors, strikes or other labor problems (other than those involving Encompass or Customer employees, respectively), and malicious cyber- attacks. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

11.8 Assignment. Neither party may sell, assign, transfer, or otherwise convey any of its rights or delegate any of its duties under the Agreement without the prior written consent of the other party; provided, however, that either party may without the prior consent of the other party assign all of its rights under the Agreement : (a) to its Affiliate; or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets, provided that (a) if the scope of use of the Encompass Product is increased thereby, the assignee shall enter into a new Order Form with Encompass addressing the Users being added and associated fees that will be paid therefor and (ii) Customer shall have no right to assign this Agreement to a Competitor. Any other purported attempt to do so is void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

11.9 Governing Law; Venue. This Agreement shall be construed and governed exclusively by the laws of Colorado, without regard to its conflicts of laws principles, to the extent such principles would result in the application of another state’s or jurisdiction’s laws. The state and federal courts located in Denver County Colorado shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. The United Nations Convention on the International Sale of Goods will have no application to this Agreement.

11.10 Attorney’s Fees. Each party hereby consents to the exclusive jurisdiction of such courts. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the other party.

11.11 Export Compliance. The Encompass Product, Documentation, other Encompass technology, and derivatives thereof may be subject to export laws and regulations of the U.S. and other applicable jurisdictions. Each party represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use the Encompass Product or Documentation in a country or region that is embargoed by the U.S. or other applicable jurisdictions or in violation of any export law or regulation of the U.S. or other applicable jurisdictions.

11.12 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the foregoing restriction.

11.13 Non-Solicitation. During the term of this Agreement and for one (1) year after its termination, neither party will solicit for employment or engagement any personnel or hire or enter into a contract with any employee, consultant, or former employee of the other, without first obtaining such other party’s written consent, except for former employees or consultants whose employment or engagement has been terminated for over six (6) months. Notwithstanding the foregoing, this clause will not be interpreted to prohibit (a) solicitations through general public advertising or other publications of general public circulation or (b) the hiring of any employee or contractor responding thereto.

11.14 Counterparts. This Agreement is incorporated into any and all Orders Forms and/or Statements of Work executed by Customer. Order Forms, Statements of Work, and/or amendments related hereto may be executed electronically and in counterparts, which each individually and taken together shall form one binding legal instrument.

11.15 Additional Encompass Products Not Included on Order Form. Customer acknowledges that as part of the Subscription Services provided under this Agreement that additional Encompass Products may be made available by Encompass to Customer from time to time. Such additional Encompass Products may not be listed on the Order Form or explicitly agreed on by the parties at the Effective Date of this Agreement. Customer agrees that any additional Encompass Products provided by Encompass which are not explicitly listed on an Order Form shall be governed by the terms of this Agreement and the pricing, terms and conditions set forth at: https://www.encompasstech.com/legal/products/ as revised by Encompass from time to time. By accessing or using such additional Encompass Products, Customer agrees to be bound by the terms of this Agreement and the terms provided at the site and agrees to pay Encompass the fees associated with additional Encompass Products that are outlined at the site. In addition to pricing, the site may contain terms and conditions related to usage limits, restrictions, service level agreements, data privacy and security and other terms deemed necessary by Encompass. Customer agrees to comply with such terms.