Legal

Rootwurks Master Service Agreement

Last Updated February 28, 2022

This Master Services Agreement (“Agreement”) governs Customer’s purchase, license and use of the Rootwurks Services. “Customer” is the organization that you represent in agreeing to this Agreement. If you are not formally affiliated with an organization for whom you are authorized to enter into this Agreement, then you as an individual are the Customer. If you are an individual entering into this Agreement, then the Rootwurks Services made available to you may be limited in Rootwurks’ sole discretion. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions

Order

1.1 “Order” means the Rootwurks order form executed by the parties for purchase of the Rootwurks Services that references this Agreement

Rootwurks Services

1.2 “Rootwurks Services” means the software platform and content (including assessments, audits, action plans, courses, guides) and any other services and functions provided by Rootwurks to Customer (including Rootwurks APIs, documentation and technical support in connection with such services), subsequent updates or upgrades of any of the foregoing made generally available by Rootwurks, and any Rootwurks Materials, Rootwurks Content Modifications, and Rootwurks Custom Content provided to Customer hereunder.

Subscription Term

1.3 “Subscription Term” means the subscription period of time specified in the Order during which the Rootwurks Services will be provided to Customer. Usage Allowance

1.4 “Usage Allowance” means any usage limits (e.g. number of Users, number of facilities and designated location), quantities or other parameters specified in the Order with respect to Customer’s access to the Rootwurks Services

Users

1.5 “Users” means the individuals who are designated by Customer to access and use the Rootwurks Services under this Agreement solely for the benefit of Customer, and for whom Customer has issued or approved access credentials. Each User must be a single identified individual using a single login with one unique email address. Customer may permanently (i.e., not for a predefined temporary period of time) replace one named User with another if the original named User no longer has access to the Rootwurks Services.

2. Rootwurks Services

Provision of Services

2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Rootwurks will make available to Customer the Rootwurks Services on a non-exclusive, limited, revocable, non-transferable and non-sublicensable basis only: (a) during the applicable Subscription Term, (b) internally for Customer’s own internal business purposes, and not for resale or license to third parties, (c) by the authorized number of Users, (d) subject to any additional applicable Usage Allowances, and (e) in accordance with the additional Rootwurks Services rights and limitations specified in the Order. Rootwurks may change any Rootwurks Services or features of the Rootwurks Services from time to time; provided that Rootwurks will not materially reduce or degrade the quality of any Rootwurks Services purchased by Customer during the applicable Subscription Term.

Restrictions

2.2 Customer will have no right to assign or transfer (except in accordance with Section 12.4 below), or sublicense its right to use, or otherwise grant access to, the Rootwurks Services. Customer is not granted the right to: (a) modify, disassemble, decompile or reverse engineer any portion of the Rootwurks Services nor authorize any third party to do so, or (b) copy any portion of the Rootwurks Services. It is further expressly understood and agreed that Customer’s business operations will not include, without Rootwurks’ express written consent, any use of the Rootwurks Services for the purpose of any transaction: (i) undertaken for a fee or other consideration, (ii) performed substantially for the benefit of any third party, or (iii) which is not reasonably related to Customer’s business operations. Customer may use the Rootwurks Services only for its business purposes and will not: (A) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (B) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (C) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (D) interfere with or disrupt the integrity or performance of the Rootwurks Services or the data contained therein, or (E) attempt to gain unauthorized access to the Rootwurks Services or its related systems or networks.

Trial Licenses

2.3 If Customer orders Trial Services, then Rootwurks will make the applicable Rootwurks Services available to Customer on a Trial basis until the earlier of (a) the end of the Trial period set forth in the Order, or (b) the start date of any Subscription Term for Rootwurks Services ordered by Customer, or (c) termination of the Trial by Rootwurks in its sole discretion. Additional Trial terms and conditions may be included in the Trial Order. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE TRIAL THE ROOTWURKS SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. “Trial Services” means Rootwurks Services that may be made available to the Customer to try at its option whether as a trial, pilot, evaluation, proof of concept, or by a similar description.

Limited Rights

2.4 The rights of Customer to use the Rootwurks Services are limited to those expressly granted in this Section 2 and will terminate automatically upon the termination of this Agreement for any reason. There are no implied licenses. Rootwurks hereby reserves all rights not expressly granted to Customer under this Agreement.

Account Registration; Other Customer

Responsibilities

2.5 (a) To use the Rootwurks Services, Customer will be asked to create an account. As part of the account creation process, Customer will be asked to provide Customer email address and create a password. When registering an account, Customer must provide true, accurate, current and complete information about Customer as requested during the account creation process. Customer must also keep that information true, accurate, current and complete after Customer create Customer account. (b) Customer will (i) be responsible for all use of the Rootwurks Services under Customer’s account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Rootwurks Services and notify Rootwurks promptly of any such unauthorized access or use, and (iii) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Rootwurks Services. Customer will be solely responsible for Customer’s failure to maintain such equipment and services and Rootwurks will have no liability for such failure. With Customer permission (which may be by email or other reasonable means), Rootwurks may log into user accounts in order to debug the Rootwurks Services.

Responsibilities

2.6 Customer will access and use the Rootwurks Services in accordance with this Agreement, applicable laws, rules, and regulations, and Rootwurks’ Acceptable Use Policy.

3. Support & Feedback

Support

3.1 Rootwurks will provide Support Services for the Rootwurks Services (a) for the duration of the Subscription Term, and (b) to the extent and for the time period that Customer pays the associated fees without interruption. Rootwurks reserves the right, in its sole discretion, to modify, discontinue, add, adapt, or otherwise change its Support Services, but will not take any such action during a Subscription Term that would materially reduce or degrade the applicable Support Services. Support Services will terminate upon expiration or termination of the Subscription Term or upon Customer’s failure to pay applicable fees for such Support Services. “Support Services” means the support and maintenance services for the Rootwurks Services.

Service Level Commitment

3.2 As of the Effective Date, Rootwurks uses Amazon Web Services (“AWS”) as its hosting services provider for the Rootwurks Services. Rootwurks hereby agrees to extend to Customer the same service level commitments as are extended to Rootwurks by AWS, details of which will be provided to Customer upon request.

Professional Services

3.3 Rootwurks will provide the professional services identified in the Order or set forth in a statement of work. Professional services fees will be specified in the Order or the statement of work. All statements of work will incorporate and be subject to the terms of this Agreement.

4. Fees and Payment & Taxes

Fees and Expenses

4.1 Customer will pay all fees specified in each Order and any applicable additional fees if Customer exceeds the allotted capacity, use or access rights, or other applicable Usage Allowances specified in the Order. Except as otherwise specified herein or in an Order (a) fees are payable in United States dollars, (b) fees are based on Rootwurks Services purchased, (c) payment obligations are non-cancellable and fees paid are non-refundable, (d) all Rootwurks Services will be deemed accepted upon delivery, and (e) the Rootwurks Services purchased cannot be decreased during the relevant Subscription Term. Customer will reimburse Rootwurks for any expenses specified in the Order or otherwise authorized by Customer in writing (including via email). All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Unless otherwise specified in the Order or invoice, all payments by Customer to Rootwurks under this Agreement are due and payable within 30 calendar days of the invoice date.

Taxes

4.2 Customer is solely responsible for the payment of, and will pay when due, all applicable Taxes now in force, enacted or imposed in the future arising from or relating to this Agreement and the provision of products and services under this Agreement including sales, service, use or value-added taxes. If, for any reason, Rootwurks pays any such Taxes, Customer will reimburse Rootwurks for such Taxes. “Taxes” means any form of taxation, levy, duty, charge, contribution, or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of Rootwurks. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Rootwurks, then the sum payable to Rootwurks will be increased by the amount necessary so that Rootwurks receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

Fee Disputes

4.3 Customer must notify Rootwurks in writing if Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer must provide that written notice to Rootwurks within 60 days of the applicable charge and Rootwurks will work in good faith with Customer to resolve the applicable dispute promptly. If Customer does not provide Rootwurks with this written notice of Customer fee dispute within this 60-day period, Customer will not be entitled to dispute any fees paid or payable by Customer.

Past Due Invoices

4.4 If any payment is not made when due, interest will begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or 1.5% per month, accrued from the date due until paid in full. If any amount owed by Customer under this Agreement is 10 days or more overdue, Rootwurks may, without limiting Rootwurks’ other rights and remedies, suspend any Rootwurks Services to Customer until such amounts are paid in full. Rootwurks will not exercise the foregoing rights if the applicable fees are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.

5. Intellectual Property Rights

Intellectual Property Rights

5.1 “Intellectual Property Rights” means all or any of the following: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, domain names and social media names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.

Rootwurks Ownership

5.2 Notwithstanding any other provision of this Agreement, as between Rootwurks and Customer, Rootwurks and/or its licensors will exclusively own all right, title and interest in and to the Rootwurks Services, including any modification thereof no matter by whom made, and all Intellectual Property Rights thereto. Customer acknowledges that the use of the Rootwurks Services outside the scope of this Agreement without Rootwurks’ prior express written consent constitutes an infringement of Rootwurks’ Intellectual Property Rights and Customer expressly covenants that, during the term of this Agreement and after the termination of this Agreement for any reason, Customer will not, either directly or indirectly, commit an act of infringement, or contest or aid in contesting the validity or ownership of any of Rootwurks’ Intellectual Property Rights in and to the Rootwurks Services or any variations thereof, or take any other action in derogation of Rootwurks’ or any of its affiliates’, subsidiaries’ or licensors’ ownership and Intellectual Property Rights in and to the Rootwurks Services.

Customer Materials; Customer Content; Customer Records

5.3 Customer will own all Customer Materials, and all associated Intellectual Property Rights. “Customer Materials” means: (a) Customer Content; (b) records of Customer or to which Customer is entrusted (“Customer Records”) and (c) Customer’s domain names and trademarks. “Customer Content” means (i) any pre-existing content of Customer provided to Rootwurks for use with the Rootwurks Services or for Rootwurks’ provisioning of Rootwurks Services under this Agreement, (ii) content created by Customer during the Subscription Term that is used in the Rootwurks Services, and (iii) any information or data that Customer or a Customer User uploads to the Rootwurks Services, including Customer’s Confidential Information (as defined below). Customer grants to Rootwurks a worldwide, non-exclusive, non-transferable (except in accordance with Section 12.4 below), royalty-free license under its Intellectual Property Rights during the Subscription Term to use, reproduce, perform, display, transmit, operate, maintain, alter, transform, modify and prepare derivative works of Customer Materials for the sole purpose of providing Rootwurks Services to Customer in accordance with this Agreement.

Customer Materials

5.4 Customer will ensure that all Customer Materials is at all times compliant with this Agreement, Customer’s privacy policies, and all applicable laws and regulations and conventions. Customer is solely responsible for the accuracy, content and legality of all Customer Materials. Customer represents and warrants that Customer has sufficient rights in the Customer Materials to grant the rights granted to Rootwurks hereunder and that the Customer Materials does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

Rootwurks Content Modifications

5.5 To the extent Customer Content is created or used to add to or modify any Rootwurks Materials (as defined below) and/or Rootwurks Services provided to Customer hereunder (for example, modifications to Rootwurks-developed assessments, audits, training materials or templates), the modified Rootwurks Materials and/or modified Rootwurks Services are referred to as the “Rootwurks Content Modifications”. Such Rootwurks Content Modifications will be owned by Rootwurks, and are hereby licensed back to Customer on an exclusive basis. Customer hereby assigns all right, title and interest to Rootwurks of such Rootwurks Content Modifications, and all Intellectual Property Rights therein and thereto. For clarity, (a) Customer retains ownership of the Customer Content incorporated into any Rootwurks Content Modifications and does not obtain any ownership to the underlying Rootwurks Materials or Rootwurks Services whatsoever, and (b) Rootwurks retains ownership of the Rootwurks Materials and Rootwurks Services in any Rootwurks Content Modifications and does not obtain any ownership to Customer Content whatsoever.

Rootwurks Material; Aggregate Data

5.6 Rootwurks will own (a) all art, software, tools, designs, documentation, data and other materials, whether or not copyrighted or copyrightable, developed by or for Rootwurks as may be necessary to provide the Rootwurks Services and any deliverables hereunder, and (b) any routines, tools, methodologies, processes or technologies created, adapted or used by Rootwurks in completing any services hereunder together with all associated Intellectual Property Rights (collectively, the “Rootwurks Materials“). Rootwurks will also own any and all Aggregate Data produced from Customer’s use of the Rootwurks Services. For the purposes of this Agreement, “Aggregate Data” means any and all data produced from the Customer’s use of the Rootwurks Services or provisioning of the Rootwurks Services for broad groups or categories in which the characteristics of individual persons are no longer identifiable, including metadata.

Rootwurks Trademarks

5.7 Customer acknowledges that the trademarks, trade names, service marks, trade dress, logos, domain names, social media names and identifying marks under which Rootwurks markets the Rootwurks Services (the “Rootwurks Marks”) are the exclusive property of Rootwurks and that no license to such Rootwurks Marks is granted to Customer under this Agreement. Customer will not change, modify, alter, obscure or remove any of the Rootwurks Marks on the Rootwurks Services without the express written consent of Rootwurks under a separate written agreement. Customer will at no time adopt or use without Rootwurks’ prior review and express written consent, any new mark or any variation of any Rootwurks Marks, or any mark likely to be similar to or confusing with any Rootwurks Marks.

Rootwurks Custom Content

5.8 “Rootwurks Custom Content” means all deliverables and other work product and services that are developed or provided specifically for Customer pursuant to a statement of work or addendum mutually agreed in writing by the parties, including assessments, audits, video or audio works, software, literary works, manuals, training materials, documentation and other works of authorship, but excluding any Rootwurks Materials, Customer Materials and Third Party Material (defined below). Unless otherwise expressly set forth in a statement of work or addendum mutually agreed in writing by the parties, (a) Rootwurks will own all right, title and interest (including all Intellectual Property Rights) in the Rootwurks Custom Content and all legally protectable elements, contributions, collective works thereof or derivative works thereto, and Customer hereby assigns all right, title and interest to Rootwurks of such Rootwurks Custom Content, and all Intellectual Property Rights therein and thereto, and (b) Rootwurks hereby grants Customer a worldwide, non-exclusive, non-transferable (except in accordance with Section 12.4 below), royalty-free license under its Intellectual Property Rights during the Subscription Term to use such Rootwurks Custom Content as part of the Rootwurks Services.

Non-exclusivity; Third-Party Material

5.9 Customer acknowledges that Rootwurks provides services similar to those provided under this Agreement to third parties and Rootwurks may be providing deliverables to third parties that are substantially similar to the deliverables being provided to Customer, but Rootwurks will not use any Customer Material or Customer Confidential Information in performing services for third parties. Rootwurks will not be prevented from using Rootwurks Custom Content or providing any services or deliverables to any third party, except as may be provided in this Section 5, provided that Rootwurks does not use or incorporate any Customer Materials or Customer Confidential Information in connection with or into such services or deliverables. In performing the Rootwurks Services, Rootwurks will not incorporate into any Rootwurks Custom Content any art, software, tools, designs, documentation, data or other material of any third party (“Third Party Material“) unless Rootwurks or Customer has all necessary licenses and rights to do so.

6. Confidentiality

Confidential Information

6.1 “Confidential Information” means any information or data disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, except for information that must be kept private or confidential under applicable law (whether or not coming within the following exceptions), “Confidential Information” will not include any particular information of the Disclosing Party that the Receiving Party can demonstrate: (a) is in the public domain through no fault of Receiving Party; (b) was properly known to Receiving Party, without restriction, before disclosure by the Disclosing Party; (c) was properly disclosed to Receiving Party, without restriction, by another person with the legal authority to do so; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

Use of Confidential Information

6.2 The Receiving Party will (a) keep the Disclosing Party’s Confidential Information in its strictest confidence and take reasonable precautions to protect such Confidential Information (including all precautions the Receiving Party employs with respect to its confidential materials); (b) not make any use of the Disclosing Party’s Confidential Information except to carry out its rights and obligations under this Agreement; (c) not divulge the Disclosing Party’s Confidential Information or any information derived therefrom to any third party except to Receiving Party’s affiliates and its and their employees, directors, officers, agents, consultants and contractors (“Representatives”) as is reasonably required in connection with the exercise of Receiving Party’s rights and obligations under this Agreement; and (d) not copy (except as necessary to carry out its rights and obligations under this Agreement) the Disclosing Party’s Confidential Information. Any Representatives given access to the Disclosing Party’s Confidential Information must have a legitimate “need to know” and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 6. The Receiving Party will be liable for any of its Representatives’ failure to comply with such obligation.

Authorized Disclosures

6.3 The Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body. To the extent not prohibited by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.

Business Associate Agreement

6.4 If applicable and pursuant to Health Insurance Portability and Accountability Act (“HIPAA”), the parties will enter into a Business Associate Agreement.

6.5 Each party acknowledges that monetary remedies may be inadequate for any breach of this Section 6 or the License Restrictions and, without prejudice to any rights or remedies at law or in equity otherwise available to the Disclosing Party, the Disclosing Party will be entitled to seek injunctive relief, specific performance or other appropriate equitable remedies to protect its interest therein, without the posting of bond or proof of actual damages.

7. Security and Data Privacy

Security

7.1 Rootwurks will operate an information security program designed to protect Customer Content and Customer Records under Rootwurks’ control and utilizing industry standard policies and technologies. As of the Effective Date, the Rootwurks Services run on Amazon Web Services (“AWS”). AWS’s security commitments are set forth at https://aws.amazon.com/compliance/data-protection/ . In the event Rootwurks replaces AWS with another cloud hosting services provider which does not have substantially similar or better security commitments, Rootwurks will notify Customer thereof (email notification is acceptable), and as Customer’s sole remedy, Customer may, on or before 30 days after such notification, terminate this Agreement and receive a pro-rata refund of all pre-paid Rootwurks Services fees corresponding to the portion of the then-current Subscription Term after the date of such termination.

Privacy

7.2 Rootwurks will access and use the Customer Content and Customer Records solely to perform its obligations in accordance with the terms of this Agreement and Rootwurks’ Privacy Policy published at https://rootwurks.com/privacy-policy/. Where Customer’s use of the Rootwurks Services includes the processing of personally identifiable information by Rootwurks that is subject to the General Data Protection Regulation (EU) 2016/679, (a) such data processing by Rootwurks as a data processor complies with the requirements of the aforementioned regulation, and (b) Rootwurks will process personally identifiable information on behalf of and in accordance with Customer’s instructions consistent with this Agreement, as necessary to provide the Rootwurks Services.

8. Warranties and Disclaimers

General Warranty

8.1 Each party hereby represents and warrants to the other that (a) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder, and (b) the making of this Agreement does not violate any agreement existing between such party and any third party.

Limited Warranty for Services

8.2 Rootwurks represents and warrants to Customer that (a) the Rootwurks Services performed hereunder will be performed in a competent, workmanlike manner in accordance with standard industry practices, and (b) the Rootwurks Services provided under this Agreement will be free from material defects. As Customer’s sole remedy, and Rootwurks’ sole liability and obligation, for any breach of the foregoing warranties, Rootwurks will promptly repair, replace or reperform the defective Rootwurks Services provided to Customer pursuant to this Agreement at no additional charge.

Disclaimer

8.3 (a) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE ROOTWURKS SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, AND ROOTWURKS HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND ROOTWURKS HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ROOTWURKS DOES NOT WARRANT THAT THE ROOTWURKS SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
(b) RELIANCE BY CUSTOMER OR ITS PERSONNEL OR CLIENTS ON ANYTHING IN THE ROOTWURKS SERVICES OR ANYTHING SAID OR DISTRIBUTED BY ROOTWURKS OR ITS AGENTS IN CONNECTION WITH THE ROOTWURKS SERVICES WILL BE AT CUSTOMER’S SOLE RISK. ANY AND ALL USE OF, INTERPRETATIONS AND DECISIONS MADE BY CUSTOMER AS A RESULT OF USING, THE ROOTWURKS SERVICES OR OTHER INFORMATION PROVIDED BY ROOTWURKS UNDER THIS AGREEMENT ALSO INCLUDE THE OPINION AND JUDGMENT OF CUSTOMER. CUSTOMER HAS FULL RESPONSIBILITY FOR THE USE OF, AND ALL SUCH INTERPRETATIONS AND DECISIONS MADE BY CUSTOMER USING, ANY ROOTWURKS SERVICES OR OTHER INFORMATION PROVIDED BY ROOTWURKS UNDER THIS AGREEMENT. ROOTWURKS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE ABILITY, COMPETENCE, KNOWLEDGE OR SKILL OF CUSTOMER’S PERSONNEL OR CLIENTS TO UTILIZE SUCCESSFULLY OR APPROPRIATELY, IN ANY CIRCUMSTANCE, ANY OF THE ROOTWURKS SERVICES.

9. Indemnification

By Rootwurks

9.1 Rootwurks will defend, indemnify and hold harmless Customer and its affiliates and its and their directors, employees and agents from and against any liability, claim, damage, cost or expense (including reasonable attorneys’ fees) awarded against Customer or agreed upon by Rootwurks in settlement to the extent arising out of or resulting from a claim that the Rootwurks Services infringe or misappropriates any copyright, trade secret or any patent of a third party issued in the U.S., Canada, the European Union, United Kingdom, countries of the European Economic Area and/or Switzerland. If such notice, suit or action occurs, or if Customer’s authorized use of the Rootwurks Services hereunder is, or in Rootwurks’ opinion is likely to be, enjoined due to the type of infringement specified above, then Rootwurks may undertake at its sole option, and at its expense, one or more of the following: (a) procure for the Customer the right to continue using the affected Rootwurks Services under the terms of this Agreement; (b) replace or modify the affected Rootwurks Services to render them non-infringing and substantially equivalent or better in function to the enjoined item; or (c) if options (a) and/or (b) above cannot be accomplished despite Rootwurks’ commercially reasonable efforts, then Rootwurks may terminate this Agreement with respect to such affected Rootwurks Services and upon return or cessation of use of the affected Rootwurks Services issue a pro-rata refund or credit to Customer corresponding to the portion of the then-current Subscription Term for such affected Rootwurks Services after the date of such termination. Notwithstanding the terms of this Section 9.1, Rootwurks will have no liability or obligation of any kind to the extent it results from: (i) any Rootwurks Services manufactured to specifications furnished by or on behalf of Customer, (ii) any infringement arising out of the use of the Rootwurks Services in combination with other hardware, equipment, software or materials not furnished by Rootwurks (if such infringement would not have occurred but for such combined use), (iii) use of a Rootwurks Services in a manner not normally intended, or with respect to any patent, copyright or trade secret in which the Customer or its affiliate has a direct or indirect interest, (iv) modification or alteration of the Rootwurks Services by Customer, without Rootwurks’ express written authorization and direct supervision; (v) Customer’s continuing such allegedly infringing activity after being informed by Rootwurks and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications, (vi) Customer’s use of such Rootwurks Services in breach of this Agreement, or (vii) Customer’s use of the Rootwurks Services after the then-current Subscription Term for such Rootwurks Services. This Section 9.1 contains and limits the entire liability and obligations of Rootwurks for Intellectual Property Rights infringements by the Rootwurks Services.

By Customer

9.2 Customer will defend, indemnify and hold harmless Rootwurks and its affiliates and its and their directors, employees and agents from and any liability, claim, damage, cost or expense (including reasonable attorneys’ fees) awarded against Rootwurks or agreed upon by Customer in settlement to the extent arising out of or resulting from (a) a claim that any Customer Materials infringe or misappropriate any copyright, trade secret or any patent of a third party issued in the U.S., Canada, the European Union, United Kingdom, countries of the European Economic Area and/or Switzerland, (b) Customer’s activities under or in connection with this Agreement or Customer’s acts or omissions in connection with use of the Rootwurks Services, (c) personal injury or death not caused solely and directly by Rootwurks; (d) the breach by Customer of any informed consent obligations applicable to its use of the Rootwurks Services; (e) the breach by Customer of applicable laws including HIPAA and other privacy laws; and/or (f) any disputes between Customer and any of its clients or their families, successors, assigns and/or estates.

Indemnity Process

9.3 The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnified party settle any such action without the written consent of the indemnifying party (which consent will not be unreasonably withheld or delayed). The indemnifying party will have no right to settle any claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.

Other Proceedings

9.2 Rootwurks will not be required or compelled to be a party to, assist in, or otherwise participate, whether as a witness or in any other capacity, in any investigation, audit, action or proceeding, whether judicial, arbitral or administrative, instituted by Customer, any Customer client or any third party (collectively, a “Proceeding”), provided, however, that in the event that Rootwurks is made a party to or is threatened to be made a party to, or otherwise becomes involved in, any such Proceeding (including, without limitation, via deposition, interrogatories or otherwise subpoenaed for any purpose), then in any such case Customer agrees to pay in advance, upon receipt of written demand therefor from Rootwurks, any and all expenses that may be incurred by Rootwurks in connection therewith, including, without limitation, reasonable attorneys’ fees, disbursements and retainers, court costs, transcript costs, fees of accountants, experts and witnesses, travel expenses, and all other expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness or other participant in a Proceeding.

10. Limitation of Liability

Total Liability

10.1 ROOTWURKS’ TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY KIND OF LOSS, DAMAGE OR LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO ROOTWURKS HEREUNDER FOR THE ROOTWURKS SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY AROSE (“GENERAL LIABILITY LIMIT”). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.

Exclusion of Damages

10.2 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ROOTWURKS SERVICES RENDERED BY ROOTWURKS HEREUNDER MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS OUTSIDE THE CONTROL OF ROOTWURKS BUT INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS AND REMOTE COMPUTING SERVICES. ROOTWURKS IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH DELAYS, DELIVERY FAILURES OR OTHER SIMILAR PROBLEMS.

10.3 Customer understands and agrees that (a) the Rootwurks Services are a tool and not a replacement for Customer’s obligations and responsibilities under the law, (b) the Rootwurks Services only supplement and facilitate Customer’s legal obligations and responsibilities established outside of and separately from this Agreement including with respect to Customer’s personnel and clients, and (c) while Rootwurks strives to ensure the accuracy, completeness and consistency with current laws, regulations and other information of the Rootwurks Services, it is Customer’s sole responsibility and obligation to educate and inform Customer’s personnel and clients.

Failure of Essential Purpose

10.4 The limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

11. Term and Termination

Term of Agreement

11.1 This Agreement will begin on the Effective Date and will remain in force until terminated.

Subscription Term

11.2 The term of each Subscription Term for the Rootwurks Services granted to Customer hereunder will begin upon the Subscription Term start date set forth in the applicable Order and will remain in force for the Subscription Term, unless terminated earlier in accordance with the terms of this Agreement. The Subscription Term will automatically renew without notice to Customer for the same period of time as the initial Subscription Term (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew such Subscription Term at least 60 days before the expiration of the then-current term.

Termination for Breach

11.3 Each party will have the right to terminate this Agreement if the other party breaches any term of this Agreement, including nonpayment, and fails to cure such breach within 30 days after written notice thereof.

Immediate Termination

11.4 Either party may terminate this Agreement (including all Orders) immediately upon delivery of written notice if: (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation and, where such proceedings are involuntary, they remain undismissed for 60 days after their institution, or a receiver is appointed with respect to a substantial part of its assets.

Effect of Termination

11.5 All rights granted to Customer hereunder will immediately terminate upon any termination of this Agreement. Upon termination by either party, Customer will within 10 business days: (a) pay to Rootwurks any and all unpaid amounts due under this Agreement, (b) return or destroy, at Rootwurks’ direction, any and all Rootwurks Materials, Rootwurks Content Modifications and Rootwurks Custom Content (if any, but excluding any Customer Materials or Third Party Materials) and all copies thereof, relating to the Rootwurks Services, and (c) certify in writing to Rootwurks that all actions required by the preceding clauses (a) and (b) have been satisfied. Further, upon such termination Rootwurks will within 10 business days return or destroy, at Customer’s direction, any Customer Materials, Customer Content, and certify in writing to Customer that it has done so. With respect to Customer Records, (i) during the Subscription Term Customer will have access to and the ability to download the Customer Records, and (ii) within 30 days of the termination of this Agreement, upon Customer’s request, Rootwurks will deliver a file to Customer of the Customer Records. Further, both parties will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party’s reasonable request.

Non-Exclusive Remedy

11.6 Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.

Survival

11.7 Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the license restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

Suspension of Services

11.8 In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Rootwurks reserves the right to suspend provision of the Rootwurks Services (and all other services under this Agreement) upon prior written notice to Customer (which will be reasonable prior notice unless Rootwurks reasonably believes immediate suspension is necessary); (a) if Customer is 15 days or more overdue on an undisputed payment, (b) if Rootwurks deems such suspension necessary as a result of Customer’s breach of Section 2 (Rootwurks Services), (c) if Rootwurks reasonably determines suspension is necessary to avoid material harm to Rootwurks or its other customers, including if the Rootwurks Services are experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Rootwurks’ control, or (d) as required by law or at the request of governmental entities. Rootwurks will restore Customer’s access and use rights promptly after Customer has resolved the issue giving rise to the suspension. Rootwurks will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur in connection with any suspension of Customer’s account pursuant to this section. Customer will continue to be charged for the Rootwurks Services during any period of suspension.

12. General

Governing Law

12.1 Disputes under this Agreement will be governed by the laws of the State of Texas excluding rules as to choice and conflict of law. Each party consents to the exclusive jurisdiction and venue of the State and Federal Courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or party to be enjoined is located. The parties hereby exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

Force Majeure

12.2 Except with respect to any payment to be made to Rootwurks hereunder, neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.

Independent Contractors

12.3 The parties are independent contractors. Nothing contained herein or done pursuant to this Agreement will constitute either party the agent of the other party for any purpose or in any sense whatsoever, or constitute the parties as partners or joint venturers.

Assignment

12.4 Either party may assign or transfer its rights and delegate its obligations (in whole or in part) under this Agreement, without the other party’s consent, to such party’s affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates. Any assignment or transfer contrary to the foregoing will be void This Agreement is binding upon the parties and their successors and permitted assigns.

Amendment

12.5 Except as otherwise provided in this Agreement, no addition to or change to the Agreement will be effective or binding on either of the parties unless agreed to in writing by an authorized representative of each party. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of Rootwurks to object to such terms, provisions, or conditions. Any purchase order or similar document from Customer will be for billing reference only.

Waiver

12.6 No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.

Severability

12.7 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.

Notices

12.8 Except as otherwise expressly stated in this Agreement, all notices given hereunder will be in writing, and will be deemed to be duly given if delivered by any of the following methods: (a) by electronic mail; (b) by personal delivery; (c) by registered or certified mail, postage prepaid, return receipt requested; or (d) by a globally or nationally (as the case may be) recognized express mail, courier, or delivery service (“Express Courier”). A notice sent by electronic mail will be deemed given on the date of electronic confirmation of receipt. A notice sent by personal delivery, certified mail or Express Courier will be deemed given on the date of receipt or refusal of receipt. Notwithstanding the foregoing, notices of breach or termination sent by email (except for a notice not to renew a Subscription Term) are not valid unless also sent and received by one of the other methods stated herein. Notices to Rootwurks will be sent to the attention of CEO, and notices to Customer will be sent to the designated contact of Customer.

Publicity

12.9 Neither party will publicize nor disclose to any third party without the consent of the other party the terms of this Agreement, except as may be necessary to comply with other obligations stated in this Agreement. Notwithstanding the foregoing, Rootwurks may use Customer’s name and logo/trademark, in connection with the Rootwurks website, general lists of Customers, and experience.

Feedback

12.10 In the event that Customer makes suggestions to Rootwurks regarding new features, functionality or performance that Rootwurks adopts for the Rootwurks Services (“Feedback”), such Feedback will become the sole and exclusive property of Rootwurks, free from any restriction imposed upon Rootwurks. Rootwurks will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Rootwurks Services.

Order of Precedence

12.11 In the event of conflict, the following order of precedence will apply: (a) the Order, (b) the terms and conditions of this Agreement, (c) the exhibits and Rootwurks policies attached or incorporated herein by reference, and (d) any statement of work or addenda attached or incorporated by reference to this Agreement.

No Third-Party Beneficiaries

12.12 There are no third-party beneficiaries to this Agreement.

Modification of Agreement Terms and Conditions

12.13 Rootwurks reserves the right, in its discretion, to modify the terms and conditions of this Agreement (collectively, “Changes”), at any time. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Last Updated” date. We will notify you of Changes through communications via Customer’s Account, email or other means. Continued use of the Rootwurks Services after Rootwurks’ notice to Customer of such updated version of this Agreement will constitute Customer’s acceptance of such updated version. Within 30 days’ notice of any Changes, if Customer certifies in writing that the Changes are material and adverse to Customer, then Rootwurks may elect in writing to (a) waive the Changes for Customer, or (b) provide Customer with 30 days for Customer to elect in writing whether to (i) terminate this Agreement without any Customer liability for Rootwurks Services that Rootwurks has not yet provided, or (ii) accept the Changes despite the adversity.

Entire Agreement

12.14 This Agreement, including the Orders, and the applicable exhibits, addenda, statements of work and Rootwurks policies incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. The term “including” and/or “includes” and the like means “including without limitation”. The headings used in this Agreement are for reference only and do not change the meaning of any provision of this Agreement, and will not be used in interpretation of any provision of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party.