TERMS OF SERVICE

This is a legal agreement between the person or organization (“Customer” or “you“) agreeing to these Terms of Service (the “Terms“) and Digital Boardwalk, Inc. (“Digital Boardwalk“, “Service Provider,” “us,” or “we“). By accepting these Terms, you represent that you are of legal age and have the authority to bind the Customer to: (a) Service Provider’s quote to Customer (the “Quote“); (b) these Terms; (c) the “Service Terms” located at https://db.mytos.page; and (d) the “Service Descriptions” located at https://db.mytos.page, (all of the foregoing, the “Agreement“). This Agreement remains valid until superseded by a revised agreement mutually endorsed by the parties. Customer and Service Provider hereby enter into this Agreement for information technology services upon the following terms and conditions.

1. Services

Service Provider agrees to provide Customer the services described in the Quote and the corresponding Service Descriptions (the “Services“). Service Provider may from time to time change the Services provided to Customer under this Agreement. Customer may order, and Service Provider may agree to provide, additional services not covered by this Agreement (“Out of Plan Services“) at rates set forth in the “Standard Labor Rates” located at https://db.mytos.page/standard-labor-rates. The Services and the Out of Plan Services shall be referred to, collectively, as the “Services.”

2. Term and Termination

2.1 Term

The initial term of this Agreement begins upon Customer’s acceptance of the Quote (the “Effective Date“). Unless specified otherwise on the Quote, this Agreement is effective for a term of thirty-six (36) months from the Effective Date (the “Term“). Thereafter, unless terminated in accordance with the terms of this Agreement, this Agreement will automatically renew on the expiration of each Term for an additional Term.

2.2 Termination

2.2.1 Termination Without Cause

Either party may terminate this Agreement at any time upon ninety (90) days’ written notice to the other party. The terminating party’s notice of termination must include an effective date of termination (the “Termination Date“) upon which all Services shall be terminated. The Termination Date shall be no less than ninety (90) days from the date the notice of termination was delivered to the receiving party.

2.2.2 Termination With Cause by Customer

Upon Service Provider’s failure to perform or observe any material term or condition of this Agreement and failure to correct within sixty (60) days after receipt of written notice from Customer of such failure, Customer may terminate the Services affected by such breach. Customer’s notice of termination must include an effective date of termination (the “Termination Date“) upon which all Services shall be terminated. The Termination Date shall be no less than thirty (30) days from the date the notice of termination was delivered to Service Provider.

2.2.3 Termination With Cause by Service Provider

Upon Customer’s failure to pay any outstanding charges within ten (10) days of receipt of written notice from Service Provider of delinquency, Service Provider may terminate this Agreement and the Services immediately.

2.3 Effect of Early Termination

Upon early termination of this Agreement by Customer pursuant to Section 2.2.1 or by Service Provider pursuant to Section 2.2.3, Customer will be liable for the following: (a) All charges incurred as of the date of termination; (b) 100% of the balance of any licensing and service commitments as defined in the Service Descriptions; (c) return to Service Provider any rental or promotional equipment as defined in the Service Descriptions; (d) 100% of the remaining Agreement balance including all fees, costs, expenses, or other items charged by Service Provider to Customer as of the Termination Date; and (e) any costs caused by Customer’s early termination of the Agreement. Notwithstanding anything to the contrary herein, Customer shall remain fully responsible for full and complete performance of its obligations to third parties for any third party products and services provided to Customer in connection with Service Provider’s Services, including but not limited to full and complete payment of any and all third party fees and costs.

2.4 Responsibilities Following Notice of Termination

2.4.1 Customer Termination Responsibilities

Prior to Service Provider beginning any termination or transfer of the Services, Customer must (a) perform its obligations under and in accordance with this Agreement including, if applicable, Section 2.3; (b) remit full and complete payment for all outstanding balances owed to Service Provider under and in accordance with this Agreement; and (c) return to Service Provider any rental or promotional equipment as defined in the Service Descriptions, (all of the foregoing, the “Customer Termination Responsibilities“).

2.4.2 Service Provider Termination Responsibilities

Upon Customer’s complete performance of its obligations pursuant to Section 2.4.1, Service Provider will (a) provide Customer any administrative credentials for Customer-owned systems that are documented in Service Provider’s knowledge base; (b) upon request by Customer to Service Provider, create administrative credentials on Customer-owned systems specified by Customer to which Service Provider has administrative access at the time of Customer’s request; (c) provide Customer a list of any technical tasks Customer must complete prior to Service Provider’s termination of the Services to avoid interruption to Customer’s operations; (d) approve any third party service transfer requests initiated by Customer to Service Provider; and (e) to the best of its ability, remotely remove all software and access in connection with the Services from Customer systems, (all of the foregoing, the “Service Provider Termination Responsibilities“). Unless otherwise listed as a Service Provider Termination Responsibility, Service Provider shall not have any obligation to provide Customer information or support both during and following termination of the Services, including, without limitation, repair of any Customer systems that experience technical issues or interruption following termination of the Services.

3. Eligibility

Customer equipment (computers, servers, network devices, and software) must meet minimum eligibility requirements in order to be eligible for a support and maintenance program. These minimum eligibility requirements (the “Service Requirements“) are located at https://db.mytos.page/service-requirements. If Customer equipment does not meet the Service Requirements, Service Provider may provide one of the following: (i) Provide the services necessary at the Standard Labor Rates to achieve eligibility; or (ii) Service Provider will continue to support and maintain Customer equipment at the Standard Labor Rates without guarantee of serviceability as set forth in the Service Descriptions.

4. Payment

4.1 Fees

Service Provider’s monthly fee as established by the Quote will be paid by Customer on or before the fifteenth (15th) day of each month during the Term of this Agreement. Service Provider will charge Customer in advance for Services unless an alternative payment schedule is set forth. Service Provider will invoice Customer on, or within reasonable timeframe of, the first (1st) day of each month. Service Provider will commence invoicing on the Effective Date for all Services, whether or not Services have been activated before the time of invoicing. Service Provider will not be liable for refunding Services not activated before the time of invoicing, or for issuing partial refunds for Services not yet activated that Customer cancels following acceptance of this Agreement.

4.2 Service Quantity Adjustments

Based on Customer’s usage of the Services, Customer may increase or decrease the licensed quantity of individual Services at any time during the Term of this Agreement, and Service Provider will increase or decrease the invoice amount to Customer respectively, subject to any specific term commitments for the individual Service. Unless requested by Customer in writing to Service Provider, and unless approved in writing by Service Provider, the licensed quantity of individual Services shall be no less than the licensed quantity of individual Services in the Quote.

4.3 Price Adjustments

Service Provider reserves the right to assess additional fees or increase the price of any third-party licenses to which Customer subscribes at any time during the Term of this Agreement. Third-party licenses include, but are not limited to, Microsoft 365 licensing, backup and disaster recovery licensing, cybersecurity licensing, and cloud hosting licensing. Service Provider also reserves the right to increase the price of Services annually by 3% or the Consumer Price Index (“CPI“), whichever is greater, or such other broadly equivalent index which Service Provider substitutes, over the previous year. Service Provider shall provide Customer thirty (30) days’ written notice of any such price adjustment.

4.4 Taxes

Amounts payable by Customer hereunder do not include local, state, or federal sales, use, value-added, or other taxes or tariffs of the United States of America or other countries based on the licenses of Services provided under this Agreement or Customer’s use thereof. Customer will pay all such taxes or tariffs as may be imposed upon Service Provider or Customer, except income taxes imposed on Service Provider by the United States of America or any state or local government therein. Customer will be invoiced for, and Customer will pay, any such taxes or tariffs if Service Provider is required to pay them on Customer’s behalf.

4.5 Delinquent Payments

The unpaid amount of any payment due from Customer under this Agreement shall accrue interest at the rate of fifteen percent (15%) per annum of the balance, or $10.00, whichever total is greatest, from the first day following the date on which payment is due until the date payment is made. Upon Customer’s failure to pay any outstanding charges within five (5) days of receipt of written notice from Service Provider of delinquency, Service Provider may suspend Services immediately.

5. Customer Responsibilities

5.1 Support Requests

Customer shall submit all support requests via Service Provider’s “Support Portal” located at https://support.digitalboardwalk.com. In the event of an emergency as defined in “Service Request Priority” located at https://db.mytos.page/service-request-priority, Customer shall, in addition to submitting the support request via the Support Portal, call Service Provider at (850) 637-8000.

5.2 Customer Authorized Contact

Customer will identify one individual to be Service Provider’s primary Customer contact (the “Primary Contact“). Customer represents that the Primary Contact has the authorization to make decisions on behalf of Customer and may be relied upon by Service Provider when providing the Services.

5.3 Cyber Liability Insurance Coverage

Customer acknowledges that Customer is solely responsible for obtaining and maintaining, for the duration of this Agreement, its own Cyber and Privacy Liability Insurance to adequately insure its cyber exposures. Customer acknowledges that Service Provider does not provide Customer with any form of Cyber and Privacy Liability or other insurance coverage in connection with the Services and that Customer’s use of the Services does not, in any way (i) replace a Cyber and Privacy Liability policy, (ii) mitigate Customer’s need for Cyber and Privacy Liability insurance coverage, or (iii) relieve Customer’s responsibility for obtaining its own Cyber and Privacy Insurance coverage.

5.4 Provision of Materials and Services

Customer agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials, and appropriate and safe workspaces for purposes of Service Provider performing the Services. Customer will also provide Service Provider with access to all information, passwords, and facilities requested by Service Provider that is necessary for Service Provider to perform the Services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Customer understands that the Service Provider may be unable to perform their duties adequately and if such a situation should exist, the Service Provider will be held harmless.

5.5 Remote Access

In order to deliver Services in a timely manner, Service Provider may use unattended remote support technologies to fulfill support requests. Customer acknowledges that Service Provider may, as required to deliver Services, access Customer’s computer network without further consent or approval.

5.6 Customer Responsibility for Equipment

Customer acknowledges that from time to time (a) Service Provider may identify additional items that need to be purchased by Customer; and (b) changes to Customer’s systems may be required in order for Service Provider to meet Customer’s requirements. In connection therewith, Customer agrees to work in good faith with Service Provider to effectuate such purchases or changes. In the event that Service Provider is required to purchase any assets (including computer hardware and/or software) in connection with Service Provider providing the Services, all such assets will remain the sole property of Service Provider unless specifically stated otherwise in writing. Customer will be responsible for the quality, completeness, and workmanship of any item or service furnished by it and for ensuring that the materials provided to Service Provider do not infringe or violate the rights of any third party. Customer will maintain adequate backup for all data and other items furnished to Service Provider.

5.7 Customer Responsibility for Rental Equipment

Service Provider may deliver to Customer technology hardware (“Rental Equipment“) as part of an equipment rental program. Rental Equipment delivered to Customer remains the property of Service Provider (or its third party service providers) and will never be deemed a fixture to any real property owned by Customer or any third party. Customer accepts for use in its “AS-IS” condition the Rental Equipment listed on the Quote and accepts full financial responsibility for its care while in Customer’s possession. Customer agrees to return all Rental Equipment to Service Provider no later than seven (7) days prior to the Termination Date (the “Return Window“) pursuant to Section 2.2. Customer will be responsible for the replacement, at full retail value, of any Rental Equipment included under this Agreement that is (a) not returned to Service Provider during the Return Window; (b) returned to Service Provider in a non-functional state; or (c) returned to Service Provider with damage, missing components, excessive wear, or any other condition worse than the condition Customer received the Rental Equipment in. Customer will not remove or relocate Rental Equipment without Service Provider’s prior written consent.

5.8 Timeliness

Any timetable for the Services is dependent on timely receipt from Customer of all necessary items and authorizations to be supplied by it. In the event of a delay in delivery of any such items by Customer, any estimated completion date will be deferred for a period equal to the time lost by reason of the delay.

5.9 Software Installation or Replication

If Service Provider is required to install or replicate Customer software as part of the Services, Customer will independently verify and warrant to Service Provider that all such software is properly licensed. Customer’s act of providing any software to Service Provider will be deemed Customer’s affirmative acknowledgement and warranty to Service Provider that Customer has a valid license for such software which permits Service Provider to perform the Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless Service Provider, in a written statement of work (“SOW“), expressly agrees to conduct such monitoring. Customer will indemnify, defend, and hold harmless Service Provider against all damages and expenses it may incur (including reasonable attorney’s fees and costs, as well as any expert fees and costs incurred) related to, caused by, or arising from Customer providing infringing materials to Service Provider or any Customer breach of this Section 5.9.

6. Proprietary Rights

6.1 Service Provider Intellectual Property

The parties acknowledge and agree that Service Provider may use proprietary computer software, methodology, inventions, improvements, works of authorship, trademarks, service marks, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how, or other intellectual property owned by Service Provider or its licensors, and Service Provider may also create additional intellectual property in the performance of the Services (all of the foregoing, the “Service Provider Intellectual Property“). Service Provider Intellectual Property shall include, without limitation, Service Provider’s User Guides, the information and content found at Service Provider’s Self-Help Center, the information and content found in Service Provider’s ticketing system and Support Portal, as well as Service Provider’s scripts, monitors, alerts, diagrams, documented procedures, documented fixes, and Customer-specific documentation. Customer agrees that any and all proprietary rights to the Service Provider Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of providing the Services, including patent, copyright, trademark, and trade secret rights, to the extent that they are available, are the sole and exclusive property of Service Provider, free from any claim or retention of rights thereto on the part of Customer, and Customer hereby assigns to Service Provider any rights it may have in any of the foregoing.

6.2 Customer Data Ownership and Responsibility

Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary to Customer and provided or submitted by Customer to the Service Provider in the course of using the Services (collectively, “Customer Data”), and Service Provider shall only be responsible or liable for the deletion, destruction, damage, or loss of Customer Data due to Service Provider’s negligence or failure to perform its requirements herein. Customer has, and shall retain, ownership of all Customer Data. Customer maintains the right to request full copies of Customer Data at any time and Service Provider shall deliver Customer Data as expediently as the Services and physical transit permits. In the event that this Agreement is terminated, Service Provider shall make available to Customer a file of the Customer Data within thirty (30) days of termination if Customer so requests at the time of termination, provided, however, that (i) Customer has performed its obligations pursuant to Section 2.4.1; and (ii) if third parties whose products or services are terminated as a result of the termination of this Agreement are unable to provide Customer Data in their possession, Service Provider shall not have any obligation to provide such Customer Data to Customer. Customer is responsible for all costs associated with the export, physical storage, and shipment of Customer Data from Service Provider to Customer including, but not limited to encrypted storage drives, shipment and logistics costs, bandwidth, and data export costs. No Customer Data shall be released by Service Provider without the written consent of Customer.

6.3 Restrictions

Customer will not copy, use, modify, or distribute any Service Provider Intellectual Property except as expressly licensed in this Agreement. Customer will not remove the Service Provider Intellectual Property from any deliverables or cause or permit the modification, distribution, reverse engineering, decompilation, disassembly, or other translation of the Service Provider Intellectual Property. Customer will not alter, change, or remove from the Service Provider Intellectual Property any identification, including copyright and trademark notices, and further agrees to place all such markings on any copies thereof.

7. Relationship of Parties

Service Provider is an independent contractor. The relationship between Service Provider and Customer shall be that of independent contractors. Neither party has the right or authority to assume or to create any obligations or responsibility on behalf of the other party. This Agreement shall not be construed to create a joint venture, partnership, employment relationship, or any other type of relationship between the parties.

8. Services Warranty

Service Provider warrants that it will perform the Services substantially in accordance with the specifications set forth in the Service Descriptions and Quote. For any breach of the foregoing warranty, Service Provider will exercise commercially reasonable efforts to re-perform any non-conforming Services that were performed within the ten (10) business day period immediately preceding the date of Customer’s written notice to Service Provider specifying in reasonable detail such non-conformance. If Service Provider in its sole discretion concludes that conformance is impracticable, then Service Provider will refund all fees paid by Customer to Service Provider hereunder, if any, to the extent such fees are allocable to such nonconforming Services.

9. Third Party Products

As part of the Services, Service Provider may offer or provide products or services from third parties. Customer will accept and agree to all terms and conditions required by third parties which provide products or services in connection with the Services. Customer will accept and agree to such third party terms even if the duration of third party agreements exceeds the duration of this Agreement. Customer’s breach of any third party terms and conditions for third party products or services provided in connection with the Services shall constitute a breach of this Agreement by Customer. Service Provider makes no representations or warranties regarding any third party products or services. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by Service Provider. Service Provider’s sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty.

10. Disclaimers

10.1

The express remedies set forth in Section 8 will constitute Customer’s exclusive remedies for any breach by Service Provider of any term or condition herein, and Service Provider’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective; or (b) that the Services were performed improperly.

10.2

Service Provider shall not be responsible for impairments to the Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licenses, the interoperability of Customer applications, or other cause reasonably within Customer’s control and not reasonably related to services provided under this Agreement.

10.3

Service Provider shall not be responsible for any claims, losses, damages, or costs resulting from a security incident (a “Cyber-Attack“) due to Customer’s non-compliance with the requirements set forth in the Service Requirements. Customer is responsible for preventing unauthorized access to its premises, systems, machines, and networks. Service Provider will not communicate with, or pay ransoms to, cyber-criminals, either directly or on behalf of Customer. Service Provider will not be responsible for any financial compensation or reimbursement to Customer if Customer incurs costs from a Cyber-Attack, or pays ransoms to cyber-criminals.

10.4

EXCEPT FOR THE WARRANTIES MADE BY SERVICE PROVIDER IN SECTION 8, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND ANY DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” SERVICE PROVIDER DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE SERVICES OR ANY DELIVERABLES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.

10.5

SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.

10.6

Except as may be done in accordance with Section 10.1, no statement by any Service Provider employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.

11. LIMITATION OF LIABILITY

IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ENHANCED DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, SERVICE PROVIDER’S PERFORMANCE UNDER THIS AGREEMENT, OR OTHER CONDUCT OF SERVICE PROVIDER REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTORY, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SERVICE PROVIDER’S LIABILITY TO CUSTOMER ON ACCOUNT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVIDED DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE LESSER OF $1,000 OR THE AMOUNTS PAID BY CUSTOMER FOR ANY SERVICES DURING THE THREE (3) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES. THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT.

IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY DAMAGES OR LIABILITY WHATSOEVER, WHETHER DIRECT, INDIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ENHANCED DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, OR INJUNCTIVE OR EQUITABLE RELIEF OF ANY KIND, ARISING OUT OF OR RELATING TO ANY PRODUCT OR SERVICE PROVIDED BY A THIRD PARTY, REGARDLESS OF: (A) WHETHER THE DAMAGES OR INJURY WERE FORESEEABLE; (B) WHETHER OR NOT SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES OR INJURY; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTORY, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12. Essential Basis of Bargain

Customer acknowledges and agrees that the fees charged by Service Provider in this Agreement reflect the overall allocation of risk between the parties, including by means of provisions for limitation of liability and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between the parties and a modification of such provisions would affect substantially the fees charged by Service Provider hereunder. In consideration of such fees, Customer agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.

13. Force Majeure

With the exception of Customer payment for service rendered, neither party shall be liable or responsible to the other party, or be deemed to have breached this Agreement for any failure to fulfill or perform any term or condition of this Agreement, or for a delay in performance of any term or condition of this Agreement, where such failure or delay is caused by or results from acts or circumstances reasonably beyond the impacted party’s (the “Impacted Party“) control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (i) epidemics, pandemics, and disease outbreaks; and (j) other events beyond the control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event(s) are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ninety (90) days following written notice given by it under this Section 13, either party may thereafter terminate this Agreement upon thirty (30) days’ written notice.

14. Confidentiality

14.1 Confidential Information

In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 14.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.”

14.2 Protection of Confidential Information

As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 14.4, not disclose or permit access to Confidential Information other than to its representatives who (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 14, and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 14; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 14.

14.3 Exclusions

Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records, was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

14.4 Mutual Representations and Warranties

If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 14.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 14.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

15. Non-Solicitation

During the term of this Agreement and for a period of one (1) year thereafter, each party to this Agreement will not, without the prior written approval of the other party, solicit for employment of employee(s) of the other party, or directly or indirectly induce any such employee to terminate his or her employment with the other party.

16. Insurance

Service Provider agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by the following insurance policies, Service Provider will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services in a single limit per occurrence amount of not less than Two Million Dollars ($2,000,000).

17. Modification of Agreement

Customer agrees and acknowledges that Service Provider may change the terms and conditions of this Agreement, including the Service Terms and Service Descriptions, from time to time. Service Provider will provide Customer with thirty (30) days’ written notice of any such changes via Customer’s e-mail address, that being the e-mail address for Customer set forth in accordance with Section 19.8. It is Customer’s responsibility to check its e-mail account for any such notices. Service Provider will post all terms and conditions on its website located at https://db.mytos.page for Customer to review upon notice of changes. Customer agrees that if Customer does not provide Service Provider with notice of an objection to such change(s) within thirty (30) days of receipt of an e-mail providing notice of such change(s), Customer will be deemed to have accepted such change(s). If Customer does provide notice of an objection to such changes within thirty (30) days, the parties will negotiate regarding the proposed change(s), but all other terms and conditions will remain valid and binding.

18. Publicity

Customer grants to Service Provider a worldwide, perpetual right and license to use and display Customer’s name, logo, trademarks, trade names, and written or recorded testimonials by Customer about its experience with Service Provider, (all of the foregoing, the “Customer Materials“), on Service Provider’s website and in other advertising and promotional materials for the purposes of identifying Customer as a client of Service Provider and publicizing Service Provider’s services. Upon request by Customer to Service Provider, Service Provider will not publicize Customer Materials and will remove Customer Materials from Service Provider’s website and other advertising and promotional materials within thirty (30) days following receipt of the request.

19. General

19.1 Entire Agreement

This Agreement together with the Quote, Service Descriptions, Order Terms, and Service Terms, which are hereby incorporated herein by this reference, contain all the agreements, representations, and understandings of the parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. To the extent there is any inconsistency between a term of this Agreement and a term of any Service Description or Quote, the term of this Agreement will govern the performance of Services thereunder.

19.2 Severability

If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable by any court or authority in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to, and if they cannot agree, the court or other authority may, modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

19.3 No Waiver

No failure on the part of either party to exercise, and no delay in exercising, any right, power, or privilege will operate as a waiver thereof; nor will any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

19.4 Choice of Law

This Agreement, including all Service Descriptions and other related documents, and all matters arising out of or relating to this Agreement, whether sounding on contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its choice of law provisions.

19.5 Jurisdiction

Any legal suit, action, or proceeding arising out of or relating to this Agreement, including all Service Descriptions and other related documents, shall be instituted in any state or federal court located in Escambia County, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

19.6 Attorneys' Fees

In the event that any party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement, including all Service Descriptions and other related documents, the prevailing party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.

19.7 No Third Party Beneficiaries

This Agreement is an agreement between the Parties, and confers no rights upon any of the Parties’ employees, agents, contractors, or customers, or upon any other person or entity other than Service Provider.

19.8 Notices

Any notice required under this Agreement shall be sent by e-mail to the e-mail address of the party set forth below, and in addition, may also be sent by registered mail, return receipt requested, facsimile, overnight express mail, or personal delivery to the physical address of the party set forth below.

Customer: Notices to Customer shall be sent to the Customer contact listed on the accepted Quote. Additional Customer contacts for notices will be added upon request by Customer to Service Provider.

Service Provider: Notices to Service Provider shall be sent to the e-mail address as set forth under “Legal Notices” located at https://db.mytos.page.

Notices sent by e-mail shall be deemed effective upon sending. Notices sent by registered mail shall be deemed effective on the third business day following mailing. Notices sent otherwise shall be deemed effective on receipt. A party may change its e-mail address and/or physical address for notices upon thirty (30) days’ prior written notice.

19.9 Assignment

Customer shall not assign or delegate any of its rights or obligations hereunder without the prior written consent of Service Provider, which consent shall not be unreasonably withheld. Any purported assignment or delegation by Customer in violation of this Section 19.9 shall be null and void. No assignment or delegation by Customer shall relieve Customer of any of its obligations hereunder (including, but not limited to, full and complete payment) unless Service Provider enters into an express written fully executed novation releasing Customer of its obligations under the Agreement.

19.10 Online Access to Agreement and Terms

Service Provider will maintain a current form of its Agreement on its website, located at https://db.mytos.page.

19.11 Survivability

Sections 2, 6, 10, 11, 12, 14, 15, 18, and 19 shall survive the termination of this Agreement.

Changelog

Date	Previous Language	New Language
07/18/2022	–	[Original Publishing]
09/08/2022	–	[Section anchor addition. No change to language.]
04/11/2023	–	4.5 Delinquent Payments
09/26/2024	5.3 Cyber Liability Insurance Coverage Customer agrees to maintain cyber liability insurance coverage during the Term of this Agreement with a limit not less than One Million Dollars ($1,000,000) for each occurrence covering (i) claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration to electronic information, extortion, and network security; (ii) breach response costs including, without limitation, legal costs, notification costs, forensics, credit protection services, call center services, identity protection services, and crisis management/public relations expenses; and (iii) payment of regulatory fines and penalties.	5.3 Cyber Liability Insurance Coverage Customer acknowledges that Customer is solely responsible for obtaining and maintaining, for the duration of this Agreement, its own Cyber and Privacy Liability Insurance to adequately insure its cyber exposures. Customer acknowledges that Service Provider does not provide Customer with any form of Cyber and Privacy Liability or other insurance coverage in connection with the Services and that Customer’s use of the Services does not, in any way (i) replace a Cyber and Privacy Liability policy, (ii) mitigate Customer’s need for Cyber and Privacy Liability insurance coverage, or (iii) relieve Customer’s responsibility for obtaining its own Cyber and Privacy Insurance coverage.
10/07/2024	–	[Section anchor addition. No change to language.]