PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.  These Terms and Conditions (the “Agreement”) including any Order Form(s) incorporating the Agreement by reference are hereby entered into by and between Topflight, LLC (“Topflight”), a Nevada limited liability company, with offices at 304 S. Jones Blvd. Ste. 372, Las Vegas, NV 89107, and you, the customer indicated on the Order Form, effective as of the date indicated on the Order Form (the “Effective Date”).  The parties may be referred to collectively herein as “Parties” and each individually as a “Party”.

1. DEFINITIONS.  

Capitalized terms within this Agreement shall have the meanings set forth below.

1.1 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise. 

1.2 “Customer Data” means data furnished by Customer, whether created in-house or sourced from one or more third-parties, to be used in conjunction with or collected by the Service.  Customer Data includes User data and User information.

1.3 “Documentation” means user documentation covering usage of the Service created or otherwise made available by Topflight.

1.4 “User” means each user of the Customer Branded Service.

1.5 “Order Form” means the separate order form duly executed by Topflight and Customer.

1.6 “Service” means the white label telehealth platform made available by Topflight as a software as a service (“SaaS”) and licensed by Customer per the terms herein.

2. THE SERVICE.

2.1 Service Description.  The Topflight Service consists of a white label telehealth platform that is Customer customizable with respect to branding.  Customer shall apply its own branding to the Service to create a customer-branded service (the “Customer Branded Service”).  Customer shall have sole discretion, control, and liability, with respect to any communications and information (collectively, “Content”) that is transferred or otherwise made available via the Customer Branded Service.  Content includes, but is not limited to, the personally identifiable information and protected health information of Users.

Topflight shall host the Service (and Customer Branded Service) backend on servers owned or controlled by Topflight, or on a third-party web services platform.  The Customer Branded Service shall be accessible via the internet, and Customer’s Users may access and use the Customer Branded Service subject to the terms herein.

The underlying software making the Service functional shall in no case be provided to or otherwise made available to Customer.  To the extent that Topflight creates customizations to the Services pursuant to and in connection with this Agreement, whether at the direction of Customer or not, such customizations shall be considered part of the Services for the purposes of interpreting this Agreement.

2.2 License Grants.  Topflight hereby grants to Customer the following limited, non-exclusive, non-transferable, non-sublicensable licenses for the duration that this Agreement remains in effect:

1. to market, offer for use, and otherwise make available the Customer Branded Services to Users. Uses not expressly covered by the license grants herein are prohibited.

2.3 Service Levels. Topflight will provide the remedies listed in the SLA attached hereto as Exhibit A for any failure of the Service listed in the SLA.  Such remedies are Customer’s sole remedy for any failure of the Service, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy.  Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement.  Topflight is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.

2.4 Use of Documentation. Customer may reproduce and use the Documentation solely as necessary to support Customer’s use of the Services.

2.5 Customer Data and Content. Customer warrants that it possesses all ownership rights, license grants, and permissions necessary to make use of the Customer Data and Content as contemplated by this Agreement.  Without in any way limiting any other Customer indemnification obligation within this Agreement, Customer shall indemnify Topflight and its Affiliates from and against any action, claim, damages, fine, or loss arising from or relating to the treatment, transfer, offering, use, and/or distribution of Content, Customer Data, personally identifiable information, and/or protected health information.  Customer shall be solely responsible and liable for the treatment, transfer, offering, use, and/or distribution of Content, Customer Data, personally identifiable information, and/or protected health information, including but not limited to, via the Service.

Without in any way limiting the foregoing, Customer warrants that the Content (including but not limited to personally identifiable information and protected health information) and the Customer Data and their treatment, transfer, offering, use, and/or distribution via the Customer Branded Services:  a.) shall adhere to all applicable laws and regulations (including but not limited to those governing the treatment of personally identifiable and protected health information), and; b.) do not infringe upon or misappropriate the rights (including but not limited to copyright rights and other intellectual property rights) of any third-party.

2.6 Technical Support.  Topflight shall provide Customer with the Technical Support Services as described in Exhibit B.  Fees due for such services shall be as described therein.

2.7 Custom Development Services.  Topflight shall provide Customer with the Custom Development Services as described in the attached Exhibit C.  Fees due for such services shall be as described therein.

3. OWNERSHIP.

3.1 Ownership. Topflight owns all worldwide right, title, and interest in and to the Service and the Documentation all derivatives thereof, including without limitation all software and customizations created pursuant to the Custom Development Service in Exhibit C attached hereto, all software used to provide the Service and all the graphics, user interfaces, logos, and trademarks reproduced through the Service (excluding the Customer Marks), and all worldwide intellectual property rights therein.  Customer hereby assigns all such rights to Topflight and agrees to execute any documents to effectuate the foregoing.  This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components not expressly granted herein.  Customer recognizes that the Service and its components are protected by copyright and other laws.  Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the Service or Documentation as delivered to Customer.

As between Topflight and Customer, Customer owns all worldwide right, title, and interest in and to the Customer Data and Content.

3.2 Customer Marks.  Customer hereby grants to Topflight a non-exclusive, worldwide, irrevocable (except for cause), transferable license to display, copy, perform, adapt, publish, and otherwise use Customer’s company name, brand name, tradenames, and/or trademarks (the “Customer Marks”) as necessary to brand the Service as necessary for the provision of the Customer Branded Service.

4. CUSTOMER DATA AND PRIVACY.

4.1 Use of Content and Customer Data. Unless it receives Customer’s prior written consent, Topflight: a.) will not access, process, or otherwise use Content or Customer Data other than as necessary to provide the Service; and b.) will not intentionally grant any third-party access to Content or Customer Data except subcontractors or vendors that are subject to a reasonable nondisclosure agreement.  Notwithstanding the foregoing, Topflight may disclose Content and Customer Data as required by applicable law or by proper legal or governmental authority.  Topflight will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4.2 External Links. The Agreement and any terms incorporated by reference shall apply only to the Service and do not apply to any third-party website or service linked to the Service or recommended or referred to through the Service or by Topflight’s staff.

4.3 Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks.  Topflight offers no representation, warranty, or guarantee that Content and Customer Data will not be exposed or disclosed through errors or the actions of third parties, including but not limited to Topflight’s vendors and subcontractors.

4.4 Data Accuracy. Topflight will have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Content and Customer Data.

4.5 Data Deletion. Topflight may permanently erase Content and Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.

4.6 Excluded Data. Customer represents and warrants that Content and Customer Data does not and will not include, and Customer has not and will not upload or transmit to Topflight’s computers or other media, any data (“Excluded Data”) in violation of any applicable laws or regulations (the “Excluded Data Laws”).  CUSTOMER RECOGNIZES AND AGREES THAT:  A.) TOPFLIGHT HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND B.) TOPFLIGHT’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

4.7 Aggregate & Anonymized Data. Notwithstanding the provisions above, Topflight may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.  “Aggregate Data” means data with the following removed:  personally identifiable information, protected health information, and the names and addresses of Customer and any of its Users.

4.8 Consent to Messages.  Customer hereby consents to receive from Topflight Service related messages through all available mediums, including but not limited to electronic mail, printed mails, phone calls, and text messages.

4.9 End User License Agreement.  Customer shall have in place with each of its Users an End User License Agreement (“EULA”) that is no less restrictive, and no less protective of Topflight and its rights than the EULA attached hereto as Exhibit D and includes all material provisions therein.

4.10 Personal Data.  Customer is solely responsible for the personal data of each of its Users.  Customer hereby represents and warrants that said personal data, your provision thereof, and Topflight’s use and disclosure thereof in accordance with this Agreement, does not violate any third-party rights or any laws, regulations, or obligations imposed by any third-party.  In addition, Customer hereby represents and warrants that it has obtained or will obtain and maintain all necessary consents, approvals, and waivers to permit it to provide Topflight with, or otherwise authorize Topflight’s access to, the personal data of Customer’s Users, and to use and disclose to third-parties said personal data as contemplated by this Agreement.  

5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

5.1 Acceptable Use. Customer will comply with this Agreement and any acceptable use policies published or otherwise made available by Topflight.  Customer will not: a.) use the Service for service bureau or time-sharing purposes or in any other way allow third-parties to exploit the Service; b.) provide Service passwords or other login information to any third-party; c.) share non-public Service features or content with any third-party; or d.) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service.  In the event that it suspects any breach of the requirements of this Section 5.1, Topflight may suspend Customer’s access to the Service without advanced notice, in addition to such other remedies as Topflight may have.  Neither this Agreement nor any acceptable use policies requires that Topflight take any action against Customer or any other third-party for a violation thereof, but Topflight is free to take any such action it sees fit.

5.2 Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other login information.  Customer will notify Topflight immediately of any known or suspected unauthorized use of the Service or breach of its security and will use best efforts to stop said breach.

5.3 Compliance with Laws. In its use of the Service, Customer will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and protected health information, and other laws applicable to the protection of Content and Customer Data.

5.4 Users & Service Access. Customer is responsible and liable for:  a.) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate any acceptable use policies or the requirements of this Agreement applicable to Customer; and b.) any use of the Service through Customer’s account, whether authorized or unauthorized.

5.5 Use By or On Behalf of Competitors.  Customer warrants that it is not a competitor of Topflight.  Customer shall not use the Services on behalf of, or otherwise for the benefit of, any competitor of Topflight, or in any manner that would reasonably be considered to be competitive to the business interests of Topflight.

6. WARRANTIES AND DISCLAIMERS.

6.1 Right to Do Business.  Each Party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

6.2 Disclaimer. Customer assumes sole responsibility and liability arising from its use of the Service.  Topflight shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Topflight by Customer in connection with the Service or any actions taken by Topflight at Customer’s direction. 

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TOPFLIGHT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE.  WITHOUT LIMITING THE FOREGOING, TOPFLIGHT DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  TOPFLIGHT FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE.  TOPFLIGHT FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TOPFLIGHT OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

7. LIMITATION OF LIABILITY.

7.1 Liability Limits. EXCEPT FOR LIABILITY ARISING FROM A BREACH CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL TOPFLIGHT BE LIABLE TO CUSTOMER, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT TOPFLIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. 

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL TOPFLIGHT’S AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, ITS EXHIBIT(S), OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICE EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

7.2 Acknowledgment. The Parties acknowledge that the limitations and exclusions contained in this Section 7 and elsewhere in this Agreement have been the subject of negotiation between the Parties and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that a.) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and b.) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.

8. CONFIDENTIALITY.

8.1 Confidential Information. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information” means all information or knowledge provided by one Party, including such Party’s agents or contractors, to the other relating to this Agreement and the subject matter hereof, whether in physical or electronic form or pursuant to visits to premises and in any form or medium in which such information may be recorded or kept which: a.) if disclosed in writing, is marked as “confidential” or “proprietary”; b.) if disclosed orally, is summarized in writing by the disclosing Party and sent to the receiving Party within thirty (30) days of the initial disclosure; or c.) that given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered as confidential.  Confidential Information shall include, but not be limited to, trade secrets; documentation, reports and manuals, algorithms, ideas, concepts, methodologies, test data, test results, testing procedures and processes; technologies and software; techniques; business information; financial information; business plans; customer lists; marketing information; sales plans; and/or sales projections.  The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a bona fide need to know such information, provided that any such third-parties shall, before they may access such information, either a.) execute a binding agreement to keep such information confidential or b.) be subject to a professional obligation to maintain the confidentiality of such information. 

8.2 Exclusions.  Confidential Information shall not include information that:  a.) is or becomes publicly known through no act or omission of the receiving Party; b.) was in the receiving Party’s lawful possession prior to the disclosure; c.) is rightfully disclosed to the receiving Party by a third-party without restriction on disclosure; or d.) is independently developed by the receiving Party, which independent development can be shown by written evidence.  Notwithstanding anything to the contrary herein, Topflight has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Topflight, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Topflight’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without compensating or crediting Customer or the User in question. Notwithstanding the provisions of this Section 8, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Topflight’s products or services.)

8.3 Use and Nondisclosure.  During the term of this Agreement, and for a period of five (5) years after expiration or termination thereafter, neither Party shall make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement.  Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance.  Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with confidentiality obligations that are at least as restrictive as the obligations set forth herein.  Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.  Notwithstanding anything to the contrary within this section, with respect to Confidential Information that qualifies as “trade secret” under applicable law, the obligations of this Section 8.3 shall survive until such information no longer qualifies as “trade secret”.

9. FEES AND PAYMENT TERMS.

9.1 Fees.  As consideration for the licenses granted herein, Customer shall pay to Topflight the fees described in in the Order Form.  Payment terms shall be as described in the Order Form.

10. TERM AND TERMINATION.

10.1 Term. The term of this Agreement (the “Term”) shall be as specified in the Order Form.

10.2 Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.

10.3 Refund of Fees. Upon any termination due to a material breach of the Agreement by Customer, fees already paid to Topflight shall not be refunded.  Upon any such termination due to a material breach of the Agreement by Topflight, a prorated portion of any prepaid fees shall be returned to Customer.  For the avoidance of doubt, fees expressly delineated as non-refundable shall not be subject to the foregoing.

10.4 Effect of Termination. Upon termination of this Agreement, Customer will cease all use of the Service (including but not limited to the Customer Branded Service), and delete, destroy, or return all copies of the Documentation in its possession or control.

10.5 Survival. The following sections shall survive the termination of this Agreement for any reason:  2.5, 3 – 9, 10.3, 10.4, 10.5, 10.6, 10.7, 11, and 12.  Further any provisions that must survive to fulfill their essential purpose shall do so.

10.6 Non-Solicit.  During the term of this Agreement and for one (1) year thereafter, Customer agrees not to solicit or induce any customer, employee, or independent contractor of Topflight to terminate, breach, or otherwise reduce any employment, contractual, or other relationship with Topflight as to do so would necessarily misuse the Confidential Information of Topflight.

10.7 Liquidated Damages.  Customer acknowledges that a breach of Section 10.6 above will result in significant damages to Topflight, but by their nature such damages are difficult to ascertain.  Accordingly, upon any such breach, Customer shall pay to Topflight liquidated damages in the amount of $30,000 USD per occurrence, due and payable immediately upon such occurrence.  Liquidated damages are not intended to be a penalty and are solely intended to compensate for damages.

11. INDEMNIFICATION.

11.1 Indemnity. Customer will defend, indemnify, and hold harmless Topflight and the Topflight Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Service, or Customer’s breach of any term or warranty of this Agreement, including without limitation:  a.) claims by Users or by Customer’s employees; b.) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; and c.) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other Customer Content or Customer Data.  Customer’s obligations set forth in this Section 11.1 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments.  Topflight will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.  The “Topflight Associates” are Topflight’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.

11.2 Exclusions. Customer will have no indemnification obligations under this Agreement as to any claim, suit or proceeding unless: a.) Topflight promptly notifies Customer in writing of such claim, suit or proceeding (except that Topflight ’s failure to provide the Customer with prompt notice of any such claim only shall relieve Customer of its indemnification obligations to the extent that its ability to defend Topflight against such claim is materially prejudiced by such failure); b.) Customer has sole control of its defense and settlement; and c.) Topflight, upon request of Customer, cooperates in all reasonable respects; provided, however, that Topflight may, at its own cost, participate in such claim, suit or proceeding.  No settlement of a claim, investigation, suit, or other proceeding that involves a remedy other than the payment of money will be entered into by Customer without the consent of Topflight, which consent will not be unreasonably withheld. 

12. GENERAL.

12.1 Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions.

In the event a dispute arises out of or in connection with this Agreement, the Parties will attempt to resolve the dispute through good faith negotiations.  If the dispute is not resolved within 30 days, then all outstanding issues may be submitted to mediation.  The parties will mutually select a mediator.   If they fail to do so within 15 days, then either Party may submit a mediation demand to JAMS Orange County for mediation under the JAMS rules.  If mediation is not successful in resolving the entire dispute, any outstanding issues will be submitted to final and binding arbitration with JAMS under the JAMS rules.  The arbitrator’s award will be final, and judgment may be entered upon it by any court having jurisdiction within Orange County, CA.

With respect to any dispute that cannot be resolved in accordance with the dispute resolution provision above, the Parties agree that the sole and exclusive venue and jurisdiction for any such action shall be in a court of competent jurisdiction in Orange County, California.  The Parties agree that the above referenced courts shall have personal and exclusive jurisdiction over the Parties for any dispute arising out of this Agreement.

12.2 Waiver.  The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.  

12.3 Notices.  All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth above or delivered in person.  The notices shall be deemed to have been given upon: (a) the date actually received; or (b) the day indicated as received by the tracking information provided by a reputable courier. Notices may be confirmed by email or fax.

12.4 Severability.  In the event that any one or more of the provisions of this Agreement is for any reason held to be illegal or unenforceable in any respect, such illegality or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.

12.5 Force Majeure.  Except with respect to the obligation to pay fees due, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and such party continues to use commercially reasonable efforts to resume performance.

12.6 Relationship Between the Parties.  Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. 

12.7 Assignment/Successors.  Customer may not assign, transfer, pledge or otherwise encumber this Agreement, in whole or in part, or delegate any of its duties under this Agreement absent the written consent of Topflight.  This Agreement shall inure to the benefit of the successors and permitted assigns of the parties.  Topflight may assign this Agreement to any acquirer of all or substantially all of Topflight’s assets or business or company equity without notice to Customer.

12.8 Entire Agreement.  This Agreement together with its exhibits constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement and its exhibits.  Topflight may modify or supplement the terms and conditions in the Agreement consistent with how Topflight treats its other customers and will provide you advanced notice of such modifications via e-mail.  If you object to such modification, to the extent the modification is a material change and degrades your rights under the Agreement, you may terminate the Agreement upon thirty (30) days’ notice to Topflight.  

12.9 Non-Exclusive Remedies.  Except as expressly stated herein, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

12.10 Equitable Relief.  Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation.  Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity. 

12.11 Third-Party Beneficiaries.  This Agreement is intended for the benefit of the signatories and is not intended to benefit any third party except as expressly stated herein. 

12.12 Counterparts. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument. 

12.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.

EXHIBIT A

SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) is made part of and incorporated into the Agreement above.  Unless otherwise defined herein, capitalized terms shall have the meanings prescribed to them within the Agreement.

1. SERVICE LEVEL AGREEMENT.
   

1.1 Target Availability Level. The Service shall have a Monthly Uptime Percentage (as defined below) of at least 99.5% (the “Target Uptime Percentage”) during any full calendar month of service.  In the event the Service does not meet this Monthly Uptime Percentage, Customer will be eligible to receive service credits to be applied solely against future, unpaid Service fees (“Service Credits”).  

“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Service was not accessible from the internet.  Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Exclusion.

“Exclusion” means any issues:  a.) that result from an access suspension per the terms herein; b.) that are caused by Customer or Customer’s telecommunications and internet services; c.) that are caused by software or hardware not provided and controlled by Topflight; d.) that are caused by Force Majeure events; or e.) that are caused by planned or unplanned maintenance, so long as Customer is provided not less than three (3) days advance written notice (e-mail notice is acceptable).

1.2 Service Credits Calculation. Service Credits shall be calculated as five percent (5%) of the monthly Subscription Fee.

1.3 Sole Remedy. The receipt of Service Credits shall be Customer sole and exclusive remedy for any failure of Topflight to meet the service levels agreed to herein.

1.4 Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s use of the Services is dependent upon access to telecommunications and internet services.  Customer shall be solely responsible for acquiring and maintaining all telecommunications and internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.  Topflight shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and internet services.

2. GENERAL.

2.1 Resolution of Conflicting Terms. In the event of a conflict between the terms of this end the Agreement, the terms of Agreement shall take precedence.

2.2 Survival.  Sections 1.2, 1.3, 1.4, 2.1, and 2.2 shall survive the termination of this exhibit for any reason.

EXHIBIT B

TECHNICAL SUPPORT SERVICES EXHIBIT

This Technical Support Services Exhibit is an essential part of the Agreement above (the Agreement).  Unless otherwise defined herein, capitalized terms shall have the meanings prescribed to them within the Agreement.

1. SUPPORT SERVICES

1.1 Support Services. Subject to Customer’s adherence to the terms of the Agreement, including but not limited to this exhibit, for the duration that this Exhibit remains in effect, Topflight will provide Customer with support services in accordance with the support policy as it is defined below.  For the avoidance of doubt, Topflight shall have no obligation to provide support to Customer’s Users.

2. POLICY DEFINITION

2.1 Technical Support.  Topflight support staff will make commercially reasonable efforts to resolve material, reproducible bugs in the Service that are reported by Customer (“Technical Support”).  Reported bugs must be reproducible using the Service as it is provided to Customer by Topflight.  Customer must provide all support and information reasonably necessary for the bug’s reproduction, such as hardware and operating system information, and software logs.  Customer may report such bugs to Topflight by e-mail and/or support ticket system.

-mail support and the support ticket system shall be available 24x7x365.

Topflight shall make commercially reasonable efforts to respond to Customer support requests within the response times in the table below.  While Topflight will make commercially reasonable efforts to resolve material, reproducible issues, nothing herein guarantees that issues will be resolved, or that resolution of reported issues will occur within a specific timeframe.

2.2 Exclusions. Topflight shall have no obligation of any kind to provide Technical Support for problems in the operation or performance of the Service caused by any of the following (each, a “Customer-Generated Error”):  a.) non-Topflight approved software or hardware products or use of the Service in conjunction therewith; b.) modifications to the Service not made by Topflight or a party expressly authorized by Topflight; or c.) Customer’s use of the Service other than as authorized in Agreement or as provided in the documentation accompanying the Software.  If it is necessary to perform Technical Support for a problem caused by a Customer-Generated Error, Topflight will notify Customer thereof as soon as Topflight is aware of such Customer-Generated Error and Topflight will have the right to invoice Customer at, and Customer agrees to pay, Topflight’s then-current published time and materials rates for all such Technical Support performed.

3. TERM AND TERMINATION

3.1 Term of Exhibit. This Exhibit shall be effective as of the Effective Date and shall continue in effect for the duration that the Agreement remains in effect.

3.2 Survival.  Sections 2.2, 3.2, 4, and 5 shall survive the termination of this Exhibit for any reason.

4. GENERAL

4.1 Entire Exhibit. This exhibit supersedes in full all prior discussions and agreement between Topflight and Customer relating to the subject matter of this exhibit and constitutes the entire agreement relating to the subject matter herein.  This exhibit may not be modified or supplemented except by a written document executed by an authorized representative of each Party. 

4.2 Resolution of Conflicting Terms. In the event of a conflict between the terms of this exhibit and the main body of the Agreement, the terms of the main body shall take precedence.

5. SUPPORT FEES

5.1 Fees. The Technical Support described in this exhibit shall be provided at no additional cost.

EXHIBIT C
CUSTOM DEVELOPMENT SERVICES

This Custom Development Services exhibit is made part of and incorporated into the Agreement above.  Unless otherwise defined herein, capitalized terms shall have the meanings prescribed to them within the Agreement.

1. DEVELOPMENT SERVICES

To the extent that Customer requires any custom software development or other professional services in connection with its use of the Services, Topflight may provide such services (the “Development Services”) in accordance with the terms of this Exhibit C.  Such Development Services may include, but are not limited to, localization services; changes to the look and feel of to create the Customer Branded Services; and setup, installation, and training.

2. DEVELOPMENT SERVICES FEE

Development Services shall be provided at the rate described in the Order Form.

3. WORK PRODUCT

Topflight shall own all Work Product, their underlying technologies and software, and all intellectual property rights therein, including but not limited to all copyrightable materials that are a part thereof, including but not limited to written copy and visual artwork.

Topflight hereby grants to Customer, a fully paid up, non-exclusive, non-sublicensable, non-transferable, worldwide, license to use, display, perform, copy, and distribute Work Product (as defined below), solely in connection with its use of the Service.

“Work Product” means the work product of the Development Services.

4. TERM AND TERMINATION

4.1 Term of Exhibit. This Exhibit shall be effective as of the Effective Date and shall continue in effect for the duration that the Service Term remains in effect.

4.2 Survival.  Sections 2, 3, 4.2, and 5 shall survive the termination of this Exhibit for any reason.

5. GENERAL

5.1 Entire Exhibit. This exhibit supersedes in full all prior discussions and agreement between Topflight and Customer relating to the subject matter of this exhibit and constitutes the entire agreement relating to the subject matter herein.  This exhibit may not be modified or supplemented except by a written document executed by an authorized representative of each Party. 

5.2 Resolution of Conflicting Terms. In the event of a conflict between the terms of this exhibit and the main body of the Agreement, the terms of the main body shall take precedence.

EXHIBIT D
SAMPLE END USER LICENSE AGREEMENT

This end user license agreement (the “EULA”) is a binding legal agreement, entered into by you and [CUSTOMER NAME], and made effective as of your first use or access of Customer Branded Service services (the “Service”).  In addition to your express agreement to these terms, your use of the Service represents your agreement to this EULA.  You may also be referred to herein as the “End User”.

PLEASE READ THIS EULA CAREFULLY.  

• The Service.  The Service is provided to you as a software as a service (“SaaS”).  Pursuant to the terms of this EULA, you are granted a license to use the Service solely for your personal, non-commercial use.  You shall not allow any third-party to use the Service, or to otherwise make the Service or any of its features available to any third-party.  [CUSTOMER NAME] and its vendors expressly reserve all rights in the Service, and any underlying software, platforms or other technologies, not expressly granted to you in this EULA.  You agree not to attempt to disassemble, decompile, or otherwise reverse engineer the Service or any portion thereof.

• Ownership of User Content.  You represent and warrant that you own the User Content, or possess all licenses and/or permissions necessary, for your copying, publication, performance, distribution, display, or use of the User Content via the Service.  As between [CUSTOMER NAME] and the End User (and its licensors), the End User (and its licensors) shall continue to own the User Content.

“User Content” means content in any medium submitted to, transferred via, or otherwise distributed by you via the Service.  You hereby warrant that User Content shall not include any materials that the transfer or possession of would constitute the violation of any law or regulation.

• Additional Obligations.  You shall not provide or otherwise transfer any third-party personally identifiable information or protected health information via the Services.

• Ownership of the Services.  [CUSTOMER NAME] or its licensors owns the Services, its underlying platforms, software, and other technologies, and all intellectual property rights therein.  You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on any output of, or otherwise generated by, the Service.

• Term.  This EULA shall remain in effect for the duration that you use or otherwise have access to the Service.  The following sections of this EULA shall survive its termination and remain in effect in perpetuity:  2, and 4 – 10.  [CUSTOMER NAME] may terminate this EULA at any time at its sole discretion by providing notice thereof to you.

• Adherence with Laws.  You agree to comply fully with all applicable laws and regulations with respect to your use of the Service.  You represent and warrant that your use of the Service shall not infringe upon or otherwise misappropriate the intellectual property rights of any third party.

• No Warranty.  THE SERVICE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND.   [CUSTOMER NAME] EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM [CUSTOMER NAME] OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS EULA.

• Limitation of Liability.  [CUSTOMER NAME]’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE FEE PAID BY YOU TO [CUSTOMER NAME] IN THE SIX (6) MONTH PERIOD PRECEDING THE ACTION GIVING RISE TO THE LIABILITY.  IN NO EVENT WILL [CUSTOMER NAME] BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE USE OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT [CUSTOMER NAME] HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS EULA IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

• Indemnification.  You shall indemnify and hold harmless [CUSTOMER NAME] and its licensors from and against any claim, damages, fines, or other loss arising from or relating to your use of the Service, including but not limited to any claim, or threat thereof, that your copying, publication, performance, distribution, display, or use of User Content infringes or misappropriates the intellectual property rights of any third-party.
• Modifications.  This EULA may be modified by [CUSTOMER NAME] at any time with conspicuous notice to you.  E-mail notice, and an announcement upon signing onto the Service shall be considered conspicuous notice.  Please check these terms regularly.  Your continued use of the Service after such notice shall constitute your acceptance of such modifications.