SOFTWARE-AS-A-SERVICE AGREEMENT

This Software-as-a-Service Agreement (this “Agreement”), is by and between Carlson Software, Inc., a Kentucky corporation with an address of 33 East 2nd St., Maysville, KY 41056 (“Carlson”) and the person or entity identified as the customer on the applicable purchase order and invoice (the “Customer”).

This Agreement becomes effective on the earlier of Customer’s access and use of the software as a service identified on the applicable purchase order or invoice (the “Service”) or Customer’s acceptance of the terms of this Agreement (the “Effective Date”).

By signing the order form, paying the requisite fees, clicking the button to indicate acceptance of this Agreement, and/or accessing and using the Service (whichever comes first), Customer and its Authorized Users (as defined below) agree to be bound by the terms and conditions of this Agreement, acknowledge reading and understanding this Agreement, and represent and warrant having the right, power, and authority to enter into this Agreement on behalf of both the Authorized User and the Customer.  

If the Customer does not agree to be bound by the terms and conditions of this Agreement, Customer must not click the button indicating acceptance of this Agreement and must not access or use the Service.

1. Permission. Subject to each and every term and condition of this Agreement, Carlson grants Customer a limited, non-exclusive, non-transferable right to access and use the Service during the Term of this Agreement solely through the Customer’s Authorized Users, solely through the access portal designated by Carlson, and solely for Customer’s internal use. Subject to each and every term and condition of this Agreement, Carlson grants Customer a limited, non-exclusive, non-transferable permission to access and use a single copy of any reference manual, release notes, guide, or other documentation for the Service (collectively, “Documentation”) that Carlson makes available through the portal designated by Carlson solely through Customer’s Authorized Users, and solely for Customer’s internal use in connection with the Service. Carlson reserves all rights not expressly granted to Customer in this Agreement. Nothing in this Agreement grants Customer or any third party any Intellectual Property or other rights by implication, waiver, or estoppel.
2. Restrictions. Customer shall use the Service only for the purpose and with the scope of permission described above. Without limiting the foregoing, Customer shall not, directly or indirectly, and shall not allow Authorized Users or others to engaged in the proscribed activities below.

1. Authorized Users. Customer may only access and use the Service and the Documentation through Customer’s employees that have been authorized by Customer to access and use the Service pursuant to this Agreement and for whom Customer has paid the appropriate fees (“Authorized Users”). Customer shall be responsible for all uses of the Service and Documentation by its Authorized Users and any users to whom Customer provides access, directly or indirectly, whether authorized by this Agreement or not. Without limiting the foregoing, Customer shall be responsible for the acts and omissions of its Authorized Users (including any breaches of this Agreement committed by Authorized Users). Customer shall make Authorized Users aware of the terms and conditions of this Agreement and shall cause its Authorized Users to comply with the terms and conditions of this Agreement.
2. Compliance with Laws. Customer shall comply with all applicable, international, national, state, and local, laws, regulations, rules, and ordinances and shall not engage in any illegal, harmful, or fraudulent activities when using the Service.
3. No copying. Customer shall not copy, reproduce, distribute, publish, transmit, retransmit, broadcast, synchronize, publicly perform, publicly display, rent, lease, lend, sell, license, sublicense, assign, transfer, distribute, publish, or make available to third parties any copies of the Service or the Documentation. Customer shall not use the Service or the Documentation for the benefit of any third party or to generate income or revenue.  
4. No Derivative Works. Customer shall not modify, adapt, edit, improve, fix, amend, alter, enhance, translate, or create any derivative works based on the Service or the Documentation.
5. No Reverse Engineering. Customer shall not decompile, reverse engineer, disassemble, decode, adapt, attempt to derive or gain access to the source code or other software component of, or decrypt the Service.  
6. No Bots. Customer shall not use any robots, spiders, automated inquiry devices, or repetitive data gathering and extraction tools, routines, scripts, or mechanisms to access the Service.
7. No Malicious Code. Customer shall not input, upload, store, or transmit any virus, Trojan horse, worm, trapdoor, time bomb or other computer programming routine intended to damage, interfere with, intercept, or expropriate the Service, or any technology (collectively, “Malicious Code”) or that infringes the intellectual property rights of any third party.
8. Intellectual Property and IP Notices. Customer shall not remove, alter, obscure, or otherwise interfere with any Intellectual Property notice affixed to, within, or associated with the Service or the Documentation, whether of Carlson or its suppliers or licensors. Customer shall not use any Intellectual Property belonging to Carlson or its suppliers or licensors to develop, design, create, license, or distribute any applications, accessories, or devices for use with the Service or to compete with the Service.
9. Limitation on Use. Customer shall not use the Service in any way or for any purpose except as expressly permitted in this Agreement; Customer shall not use the Service in any way for which it was not designed or intended; Customer shall not use the Service or the Documentation in any way or for any purpose that infringes, misappropriates, or otherwise violates the rights of any third party.
10. Benchmarking. Customer shall not conduct or disclose any benchmark tests of the Service.
11. Competing. Customer shall not develop a competing or compatible Service during the Term of this Agreement. Customer shall not use the Service to develop or create any software or service to replace or to be used in connection with the Service.
12. Not for High Risk. The Service is not intended for use in connection with any high-risk activity, including, without limitation, air travel, space travel, fire-fighting, police operations, power plant operation, military operations, rescue operations, hospital or medical operations, nuclear facilities or equipment, or the like. Customer shall not use or allow the use of the Service in connection with such high risk activities.
13. Technology Protection. Customer shall not attempt to avoid, overcome, tamper with, disable, circumvent, remove, disable, or work around any security features or technological measures used to protect the Intellectual Property or other rights of Carlson or its licensors or those of any third party. Customer shall not attempt to gain unauthorized access to parts of the Service to which Customer has not been granted access.
14. Passwords. Customer shall (and shall cause its Authorized Users to) use commercially reasonable efforts to protect the Service from unauthorized access and use. Without limiting the foregoing, Customer shall (and shall cause its Authorized Users to) maintain the confidentiality of all user names and passwords used to access and use the Service. Customer shall promptly notify Carlson of any loss or misuse of such user names and passwords. Customer shall be responsible for any damages or losses Carlson or any third party incurs as a result of Customer’s breach of these obligations.
15. Other Restrictions. Customer acknowledges and agrees that any Customer Data or other content transmitted to, posted, uploaded, or stored in the Service must comply with the restrictions set forth on Exhibit A (Acceptable Use), attached to and made a part of this Agreement. If any Customer Data or other information Customer transmits, posts, uploads, or stores in the Service violates such terms, Customer acknowledges and agrees that Carlson may remove such data and/or suspend access to the Service if Customer fails to remove such data immediately upon written notice. Customer shall cooperate with Carlson in the investigation of any potential violation of the restrictions in Section 2, violations of Section 11(a), or violations of the restrictions set forth Exhibit A (Acceptable Use). Customer acknowledges and agrees that Carlson has the right but not the obligation to monitor the Customer Data, conduct any such investigation and report violations of laws to and cooperate with law enforcement, regulatory authorities, service providers, or other appropriate governmental authorities.

3. Support and Feedback. Carlson may provide technical support by phone at (606) 564-5028 or by email at support@carlsonsw.com between the hours of 8:00 am and 6:00 pm EST Monday through Friday, excluding federal holidays and holidays Carlson observes. Customer may also report problems or provide suggestions (“Feedback”) to Carlson through the online form found at https://carlsonsw.com/support-and-training#support. Carlson has no obligation to take any action to fix a problem that does not reflect a material error in the software underlying the delivery of the Service to Customer. Customer acknowledges that Carlson may install patches and upgrades to the Service without prior notice to Customer. Customer acknowledges and agrees that Carlson may freely use any Feedback without restriction (including without attribution or compensation), that any modifications, developments, improvements or other work product resulting or derived from the Feedback shall belong exclusively to Carlson, and that Carlson has no obligation to treat any such Feedback as confidential information. Customer agrees to and hereby assigns, transfers, and conveys to Carlson all right, title, and interest in and to the Intellectual Property arising out of the Feedback as well as any modifications, developments, improvements, or other work product resulting or derived from such Feedback to Carlson.
4. Intellectual Property. Title to the Service, including all software and content underlying and contained within the Service, the Documentation, the Usage Data, all modifications to the foregoing (including any modifications, developments, and/or improvements based on suggestions and Feedback from Customer), including the copyrights, patents, trade secrets, trademarks, and other intellectual property rights arising out of the foregoing (collectively, the “Intellectual Property”), remains at all times with Carlson and its licensors. The Service, the Documentation, and the Usage Data, including all modifications to the foregoing, are protected by Intellectual Property laws. Customer shall not remove copyright, trademark, or any other Intellectual Property notices from the Service, Documentation, content, or output generated through use of the Service.  Customer shall prevent unauthorized copying of the Service and the Documentation related to the foregoing.  
5. Confidentiality.

1. Confidential Information. Customer acknowledges that during the term of this Agreement, Customer may receive access to certain commercially sensitive information proprietary to Carlson that Carlson desires to protect from unauthorized access, disclosure or use, including without limitation the Service, software (including source code, object code, executables, and other components) and related Documentation owned by Carlson and its licensors, ideas, concepts, plans, business methods or processes, systems, criteria, standards, trade secrets, know-how, inventions, data, pricing, fees, information entrusted to Carlson by third parties, customer or supplier information, information that by its nature would reasonably be considered confidential, and information marked confidential (collectively, the “Confidential Information”), which may be expressed in oral, written, electronic, or other form and through communications from Carlson or otherwise.
2. Exclusions and Exemptions. Confidential Information shall not include information Customer can prove through written records that exist at the time of disclosure is: (a) information that is or becomes generally known to the public other than through breach of a duty of confidentiality to Carlson; or (b) information Customer had in its possession at the time of disclosure that was not acquired from Carlson or a third party that owed a duty of confidentiality to Carlson. If a court order or similar legal obligation requires Customer to disclose Confidential Information, Customer must first give Carlson prompt written notice and the opportunity to seek a protective order or obtain other relief to preserve the confidentiality of the Confidential Information. If Customer is still obligated to disclose any Confidential Information, Customer shall limit disclosure to only that Confidential Information which Customer is legally obligated to disclose and shall use commercially reasonable efforts to impose obligations of confidentiality on the recipients.
3. Obligations. Customer shall not disclose the Confidential Information to any third party or allow any third party to access or use it. Customer shall limit disclosure of the Confidential Information to Customer’s employees who have a need to know it and who are under written obligations to protect it at least to the same extent required under this Agreement. Customer shall protect Carlson’s Confidential Information from unauthorized access, disclosure, loss, or use at least to the same extent and in the same manner Customer protects its own similar information, but in no event using less than commercially reasonable methods. If Customer becomes aware of any unauthorized access to, or disclosure of, loss of, or use of any Confidential Information in its possession or control, Customer shall promptly take all appropriate actions to protect against the further dissemination and use of such Confidential Information and notify Carlson immediately. Customer’s obligations to protect the Confidential Information received or accessed during the term of this Agreement from unauthorized access, disclosure, or use shall survive termination of this Agreement.
4. Restricted Use. Customer may use the Confidential Information only for the limited purposes permitted under this Agreement, and especially not to compete with Carlson or in any way potentially detrimental to Carlson. Customer acknowledges that title to the Confidential Information and any derivative works, improvements upon or modifications to the Confidential Information shall remain at all times with Carlson and that the Confidential Information has value. Upon Carlson’s request at any time, and upon the expiration or termination of this Agreement for any reason, Customer shall return to Carlson all Confidential Information or, at Carlson’s option, destroy any materials containing, regarding or derived from the Confidential Information.

6. Data.

1. Customer Data. Information, data, and other content (other than Usage Data, defined below) that Customer posts or transmits through the Service (collectively, “Customer Data”) belongs to Customer. As between Carlson and Customer, Customer owns all right, title, and interest in and to the Customer Data, including the Intellectual Property rights arising out of or embodied by it. Customer grants Carlson a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license to reproduce, copy, distribute, transmit, display, store, and otherwise use the Customer Data (i) as necessary and desirable to deliver the Service to Customer and (ii) to aggregate the Customer Data and incorporate the aggregated data into the Usage Data. Customer shall be responsible for backing up and maintaining copies of its data, including Customer Data, that it uploads, transmits, posts, or stores through the Service. Customer acknowledges and agrees that, from time to time during the Term of this Agreement, Carlson has the right, but not the obligation, to remove Customer Data that is two or more years old from the Service. Upon notice from Carlson that such Customer Data has been removed from the Service, Customer shall have the option to receive a copy of the Customer Data in form convenient for Carlson by giving written request for the copy within thirty (30) days. Thereafter, Carlson shall have no obligation to maintain such Customer Data but if it has such Customer Data and Customer desires a copy, Customer shall pay Carlson applicable fees for accessing, processing, and delivering such Customer Data.  
2. Usage Data. Customer acknowledges and agrees that Carlson may monitor, gather, and compile data and information about Customer’s use of the Service and Customer Data entered into the Service for use in aggregated, de-identified, and anonymized form (collectively, “Usage Data”). Usage Data may include information about the performance of the Service and statistical information about the Service as well as aggregated, de-identified Customer Data. Carlson may share and use the Usage Data for any purpose (including without limitation predicting industry trends, and improving, promoting, or demonstrating the Service) and with any person during and after the Term of the Agreement and such disclosure and use shall not constitute violations of Section 5 or other provisions of this Agreement. Customer acknowledges and agrees that Carlson owns all right, title, and interest in and to the Usage Data and all Intellectual Property rights arising out of or embodied by it.  

7. Pricing and Payment.

1. Pricing and Payment. In exchange for Carlson providing access to the Service during the subscription period, Customer shall pay Carlson the fees set forth on the applicable order (if set by Carlson) and invoice within the time prescribed without offset or deduction. Payment shall be made in U.S. Dollars and is non-refundable. Carlson may increase pricing after each year during the Term.  
2. Late Fee. For any fees that are not paid when due, late fees shall accrue on the overdue amount form the date payment was due until the date payment is made at the rate of 1% per month or the maximum rate permitted by law, whichever is less. Additionally, Carlson may suspend access to the Service or any features of the Service until such time as the overdue amount is paid in full.
3. Taxes. All fees and other amounts payable by Customer are exclusive of taxes and other assessments. Customer shall be responsible for all fees and other charges and fees due under this Agreement, and shall pay to Carlson all sales, use, excise, or other similar taxes (federal, state, or local) measured directly by amounts payable to Carlson pursuant to this Agreement. In no event shall Customer be obligated to pay any tax imposed on Carlson’s income pursuant to this Agreement or any tax imposed on Carlson’s privilege of doing business.

8. Audits. Customer shall maintain complete and accurate books and records related to its use of the Service during the Term and for two years thereafter. During the Term and for two years thereafter, Carlson shall have the right, on fifteen (15) days advance written notice, on a mutually convenient day during business hours, to inspect, audit, and make copies of Customer’s books and records at Customer’s premises to the extent they relate to Customer’s use of the Service and/or the terms and conditions of this Agreement. If the audit reveals that Customer has failed to pay Carlson amounts due and payable under the Agreement or has otherwise failed to comply with the terms and conditions of this Agreement, Customer shall promptly pay the difference and remedy the failures to comply and shall reimburse Carlson for the reasonable costs of the audit.
9. Suspension. Carlson may temporarily suspend Customer’s or any Authorized User’s access to the Service (or any part of it) (a) for any reason that would entitle Carlson to terminate this Agreement; (b) in the event of an actual or threatened attack on Carlson’s Intellectual Property; (c) if Carlson reasonably suspects Customer’s or an Authorized User’s access to or use of the Service disrupts or poses a security risk to Carlson, its Intellectual Property, the Service, or to any vendor or customer of Carlson; (c) if Carlson reasonably suspects Customer or an Authorized User of using the Service in connection with illegal or fraudulent activities or if any Customer Data or content transmitted, posted, or stored by Carlson is illegal; (d) Carlson’s continued provision of the Service would violate applicable law; (e) any vendor or supplier of Carlson has suspended or terminated services Carlson depends on to provide access to the Service; (f) if Customer is more than ten days overdue on any payment owed to Carlson; (g) if Customer violates the restrictions set forth in Section 2 or Exhibit A (Acceptable Use). Carlson shall use commercially reasonable efforts to notify Customer of suspension and to resume access to Service once the basis for the suspension has been satisfactorily addressed. Carlson shall have no liability for any damage, liability, or losses or any other consequences that Customer or any third party may experience as a result of a suspension.
10. Term and Termination.

1. Term. The initial term of this Agreement shall begin on the Effective Date and remain in force for one year (the “Initial Term”). On the first anniversary of the Effective Date and each anniversary thereafter, so long as Customer has paid the fees invoiced by Carlson, the term shall automatically renew for a period of a single year (each, a “Renewal Term”) unless either party provides the other with sixty (60) days advance written notice of a desire not to renew the Agreement or unless the Agreement is otherwise terminated early in accordance with the terms of this Agreement. The Initial Term and all Renewal Terms together shall be the “Term” of this Agreement.
2. Termination for Breach. Either party may terminate this Agreement on written notice to the other party if such other party fails to cure a curable material breach of this Agreement within thirty (30) days following written notice of the breach or if such other party commits an incurable breach.
3. Termination for Cause. Carlson shall have the right to terminate this Agreement immediately on written notice to Customer if (a) a receiver is appointed for Customer or its property, (b) Customer makes an assignment for benefit of its creditors, (c) proceedings are commenced by or for Customer for relief under bankruptcy, insolvency, or debtor’s relief law, (d) Customer liquidates or dissolves its business or attempts to do so.
4. Effect of Termination. The termination of this Agreement shall not affect the respective rights and obligations of the parties arising under it before the effective date of termination, and shall not limit the parties’ rights and remedies under applicable law or in equity. Termination in accordance with the provisions of this Section 10 shall not constitute breach of this Agreement.
5. Post-Termination. Upon termination or expiration of this Agreement for any reason, the permissions granted to Customer shall immediately terminate and Customer shall immediately cease and discontinue all access and use of the Service and the Documentation, return all Carlson’s Confidential Information to Carlson or, at Carlson’s option, destroy such Confidential Information in Customer’s possession or control and certify its destruction to Carlson. Customer acknowledges and agrees that Carlson has no obligation to maintain any Customer Data and that Carlson may destroy such Customer Data upon termination of the Agreement.

11. Representations, Warranties, and Disclaimer.

1. Customer’s Representations and Warranties. Customer represents and warrants that it has the legal power and authority to enter into this Agreement without consent from any third party. Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service and that the information Customer provides is true, accurate, unaltered, and complete and will contain no untrue statement or omission of material fact or data. Customer represents and warrants that the Customer Data it submits or posts to or through the Service belongs to Customer and does not violate the terms or conditions of this Agreement or infringe or misappropriate the rights of any third party. Customer represents and warrants that none of executing, delivering, entering into, and performing Customer’s obligations under this Agreement will violate any provision of law or any order of any court or any governmental authority to which Customer is subject, or conflict with, result in a breach of, or constitute a default under any contract or agreement by which Customer is bound. Customer represents and warrants that Customer’s use of the Service shall comply with all applicable laws, regulations, rules, ordinances, and court orders. Customer shall not enter into any agreement with a third party that is inconsistent with any provision of this Agreement. Customer represents that this Agreement has been duly authorized, executed, and delivered by Customer. Customer represents, warrants, and covenants that none of the Customer Data posts, submits, or transmits into the Service will contain any virus, Trojan horse, worm, or other malware or malicious code intended to disrupt or interfere with the ordinary use of the Service.  
2. Disclaimer. Carlson may disable, suspend, or remove any part of the Service or the content therein at any time if Carlson is required to do so by one of its licensors or suppliers, if Carlson determines that such portion of the Service or content therein violates applicable law or third party rights, or for other reasons as set forth in this Agreement. Except as set forth in Section 11, Carlson makes no representation or warranty regarding the Service or information provided under this Agreement and expressly disclaims all other warranties, whether express, implied, statutory, or otherwise, including any warranty of non-infringement, any implied warranty of merchantability, title, or fitness for a particular purpose, any warranty regarding information accuracy, any warranty that the Service will be uninterrupted or error-free, any warranty regarding quality, accuracy, timeliness, suitability, usability, completeness, security, availability, or condition of the Service or information, any warranty that the Service will operate with any particular hardware, software, system, or data, any warranty that the Service will achieve any result, and any warranty arising from course of dealing, usage, or trade practice. Except as expressly provided in Section 11, the Service and related information are provided on an “as-is” and “as available” basis with all faults. Neither Carlson nor its licensors shall be liable for any damages caused by viruses or other forms of contamination or destructive features that affect Customer’s computer equipment, software, data, or other property on account of Customer’s access to or use of the Service or Customer’s downloading of any documents.

12. Indemnification. Customer shall indemnify, defend, hold harmless, and reimburse Carlson for all claims, judgments, settlements, causes of action, damages, deficiencies, fines, penalties, losses, costs, and expenses (including reasonable attorneys’ fees and disbursements of counsel) arising out of related to any third party claim (a) that, if true, would indicate that Customer breached the terms and conditions of this Agreement; (b) alleges that the Customer Data or Carlson’s authorized use of it infringes or misappropriates the Intellectual Property rights of any third party; (c) based on Customer’s or any Authorized User’s actual or alleged negligence or willful misconduct.
13. Limitation of Liability. To the maximum extent permitted by law, notwithstanding anything to the contrary in this Agreement, under no circumstances will Carlson or its licensors be liable to Customer for any incidental, special, indirect, punitive, exemplary, or consequential damages of any kind or nature, including without limitation, loss of revenues, business or profits, loss of data, business interruption, regardless of the form of action, whether in contract, tort, strict product liability, or otherwise, even if Carlson has been advised of the possibility of such damages. Carlson assumes no responsibility, and shall not be liable for any damages caused by viruses or other forms of contamination or destructive features that may affect Customer’s computer equipment, software, data, or other property as a consequence of Customer’s access or use of the Service. Notwithstanding any other provision in this Agreement, to the maximum extent permitted by law, under no circumstances will Carlson be liable to Customer for any damages in excess of the amount Customer paid to Carlson under this Agreement during the twelve month period immediately preceding the cause of action.
14. Export Control. The Service, content, and other technology that Carlson makes available and derivatives of the foregoing may be subject to export control laws and regulations in the U.S. or other jurisdictions. Customer represents and warrants that neither it nor any of its employees or authorized users are named on any U.S. government denied-party list and that Customer shall not permit users to access or use any of the Service, Documentation, or technology in a U.S.-embargoed country or in violation of any U.S. export control law or regulation. Without limiting the foregoing, Customer shall not directly or indirectly export, re-export, or release or make available the Service, the Documentation, or other technology provided by Carlson to any jurisdiction or country to which such export, re-export, release, or making available would be prohibited by applicable law, regulation or rule. Customer shall comply with all applicable laws, regulations, and rules.
15. Government Use. The Service and the Documentation are commercial items (as defined in 48 C.F.R. § 2.101). If the Customer is an agency of (or contractor for an agency of) the U.S. government, Customer receives only those rights with respect to the Service and Documentation that other end users receive, in accordance with 48 C.F.R. §§ 227.7201-7204 (with respect to the Department of Defense and its contractors) or 48 C.F.R § 12.212 (with respect to others).
16. General.

1. Notices. All notices required under this Agreement shall be in writing sent by hand, certified mail return receipt requested, or reputable overnight courier service addressed to the party at the address set forth in the introductory paragraph of this Agreement unless changed by notice pursuant to this section.
2. No Assignment. This Agreement is binding on and benefits the parties and their successors and permitted assigns. Customer shall not assign or delegate any of its rights or obligations under this Agreement. If Customer undergoes a change in control, that shall be deemed an assignment for purposes of this Agreement.
3. Amendments and Waivers. Except as otherwise provided in this Agreement, this Agreement may not be modified or amended except in writing signed by the parties, and none of its provisions may be waived except in writing signed by the party charged with waiving its rights. Carlson may update this Agreement from time to time by posting a new version for execution upon logging into the Service or by posting a link to the revised version on the applicable order form. No waivers shall be implied, whether from any custom or course of dealing or any delay or failure in a party’s exercise of its rights and remedies hereunder or otherwise. Any waiver granted by a party shall not obligate such party to grant any further, similar, or other waivers.
4. Remedies. Except as otherwise expressly stated in this Agreement, all remedies are cumulative, and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other. Customer acknowledges that the covenants contained in this Agreement are reasonable and necessary to protect Carlson’s legitimate business interests. A breach or threatened breach of the confidentiality or Intellectual Property provisions of this Agreement may irreparably harm Carlson. Accordingly, in the event of an actual or threatened breach of this Agreement, Carlson shall be entitled to seek injunctive relief, specific performance, or both in addition to all other remedies available to it at law or in equity in such circumstances.
5. Force Majeure. Carlson shall be excused for delay or failure in performance when and to the extent that performance is prevented or delayed by any act of any government authority (whether valid or invalid), act of God, disaster, pandemic, epidemic, terrorism, hurricane, tornado, flood, fire, or other similar event beyond Carlson’s reasonable control (each a “Force Majeure Event”). When performance is prevented or delayed by a Force Majeure Event, Carlson shall use commercially reasonable efforts to end the Force Majeure Event, recover from it, or work around it.
6. Relationship. The parties are independent contractors. Nothing in this Agreement shall create any partnership, agency, or other fiduciary relationship between them.
7. Governing Law and Venue. This Agreement is governed by the laws of the Commonwealth of Kentucky (without regard to conflicts of laws). Customer hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in Mason County, Kentucky for all disputes arising out of this Agreement or the relationship between them.  
8. Survival. Sections 4, 6, 7, 8, 10, 12, 13, 15, 16, the obligation to protect Confidential Information received during the term of this Agreement in accordance with Section 5, as well as all terms and conditions of this Agreement that by their nature are intended to survive termination of this Agreement shall so survive.
9. Third Parties. This Agreement may be enforced only by the parties and their permitted successors and assigns.
10. Entire Agreement. Except as set forth below, this Agreement is the entire agreement between the parties, superseding any and all other prior or contemporaneous agreements, promises or representations between them regarding the subject matter of this Agreement. The identity of the Customer and the identity of the Service set forth on the purchase order and invoice are incorporated into this Agreement by this reference, and if set by Carlson, the amount of the fees set forth on the purchase order and the invoice  are incorporated into this Agreement by this reference, but no standard, conflicting, or additional terms appearing on the purchase order are incorporated by reference and this Agreement shall supersede all such terms and conditions. Except as otherwise specified in this Agreement, no modification shall be made to this Agreement unless expressed in writing signed by authorized representatives of both parties.

EXHIBIT A

Acceptable Use

Customer shall ensure that the Customer Data and any other information or content Customer transmits, posts, uploads, or stores in the Service complies with the following restrictions:

1.  Customer shall not engage in any illegal activity while using the Service and shall not violate others’ rights or harm others (including their reputations). Customer shall not transmit, post, upload, or store content that violates the law, promotes fraudulent goods or services, engages in deceptive business practices, or deceives others into disclosing information.

2.  Customer shall not transmit, post, upload, or store content that infringes or misappropriates the intellectual property or other rights of any third party.

3.  Customer shall not transmit, post, upload, or store content that defames or abuses others, violates the privacy or publicity rights of others, or would be considered obscene or objectionable in Carlson’s sole discretion.

4.  Customer shall not transmit, post, upload, or store content that contains code, macros or other executable code, or any file that contains any Malicious Code or use the Service in any way that could damage, disable, overburden, interfere, or impair the Service or the computer systems or network associated with the Service.         

5.  Customer shall not attempt to gain unauthorized access to the Service or the underlying computer systems or networks, or any third party accounts. Customer shall not attempt to test the vulnerability of the Service or the underlying computer systems or networks or breach or circumvent any authentication or security measures or to circumvent any use limitations imposed on the Service.

6.  Customer shall not monitor data or traffic on the Service and shall not monitor or crawl the Service or the underlying systems and networks.

7.  Customer shall not access the Service through automated queries.

8.  Customer shall not overwhelm or overload the Service with commands or requests to the point that the Service cannot respond or cannot respond within a reasonable time to legitimate requests or commands.