SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (“Agreement”) is by and between SPENDBOSS LLC, a North Carolina company having a principal place of business at 13850 Ballantyne Corporate Place #500, Charlotte, NC 28277, (“SPENDBOSS”) and the customer (“Customer”). Customer and SpendBoss agree to be bound by these terms and Customer desires to engage SPENDBOSS to perform certain services, and to provide Customer with direct access to SPENDBOSS’s Software. SPENDBOSS desires to provide certain services to Customer and to provide Customer direct access to SPENDBOSS’s software subject to the terms, conditions and restrictions set forth herein:

1. DEFINITIONS

For purposes of this Agreement, the terms below shall have the meanings defined below. Additional terms are defined throughout this Agreement.

1.1       “Customer Data” means and includes any personally identifiable information, user profiles, records, information, databases, page views, information about the activity of Customer’s Users, and summaries thereof, generated, developed or created by the interaction and use of Users and all other information provided directly by Customer’s Users or generated by Customer’s use of the Services.

1.2       “Intellectual Property Rights” means all right, title and interest in and to any and all now known or hereafter known, worldwide patents, copyright, moral rights, trademarks, trade secrets, confidential information or other intellectual property rights, whether arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, modifications, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in the foregoing).

1.3       “Proprietary Information” means, collectively and without regard to form, any third party information, which either party hereto has agreed to treat as confidential, information that is regulated by state or federal law concerning disclosure or use, Confidential Information, and Trade Secrets.

1.4       “Software” means the SPENDBOSS spend management solution, including any associated interface solution.

1.5       “Term” has the meaning given to it in Section 5.1 below.

1.6       “Users” means Customer’s personnel authorized to access or use the Software.

1.7       “User Documentation” means the SPENDBOSS user instructions relating to the Software in printed or electronic form.

1.8       “Work Product” means any tangible expression of SPENDBOSS’s Services, such as, without limitation, written analyses, plans or instructions; software programs, tools, applications, and interfaces(object code only) and other information (collectively “Work Product”) created by SPENDBOSS in the course of performing the Services hereunder.

1.9       “Services” are services provided by SPENDBOSS which may consist of development, consulting, implementation, delivery of, training on, customization of Software, enhancement and support services related to the Software, as well as the implementation, access, use, hosting, maintenance, support, and other services provided by SPENDBOSS pursuant to this Agreement.

1.10     “Trade Secrets”: Information which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Proprietary Information has tangible value, is the intellectual property of the owner thereof, and is protected by law and international treaties.

2. LICENSE

SPENDBOSS grants to Customer, and Customer accepts, a nontransferable, nonexclusive license and right to access the Software and use the Software and the User Documentation only as authorized in this Agreement, for itself and its internal use and operations, during the Term.

3. ACCESSIBILITY

SPENDBOSS will provide Customer with access to the latest supported version of the Software on a 24×7 basis except for scheduled system back-up, routine maintenance or other downtime as required and scheduled in advance by SPENDBOSS.

4. FEES AND PAYMENT

4.1       License Fee. Customer shall pay a monthly “License Fee” based on the number and type of Users, payable 30 days in advance, during the Term.

4.2       Fees.  Fees are the Fees for Services associated with the software,  implementation, support, and any other fees agreed to by the Customer and payable to SPENDBOSS.  In the event Fees are not expressly provided for, then fees shall be billed at SPENDBOSS’s then-current rates for the applicable Services agreed to by Customer prior to billing.

4.3       Expenses. Customer shall reimburse SPENDBOSS for all reasonable and pre-approved out-of-pocket (including travel and living) expenses incurred by SPENDBOSS in performing its obligations hereunder.  All such expenses shall be reimbursed in accordance with Customer’s travel and expense policies.

4.4       Due Dates; Currency. Unless otherwise specified or agreed by the parties, all payments hereunder are due within thirty (30) days after the date of invoice. All payments shall be made in United States dollars.

4.5       Taxes and Other Charges. All amounts specified herein are net amounts to be received by SPENDBOSS and are exclusive of, and Customer shall be responsible for and shall pay, any and all taxes, duties, and charges incurred in the performance of this Agreement wherever incurred (but excluding corporate income taxes of SPENDBOSS), whether payable directly by Customer or indirectly through SPENDBOSS in compliance with applicable law. All such obligations shall be Customer’s responsibility and are not subject to set-off, reduction, or deduction for any reason whatsoever.

4.6       Late Payment. TIME IS OF THE ESSENCE IN ALL PAYMENT TERMS. Except for invoiced amounts that Customer has successfully disputed, ANY AMOUNTS NOT PAID WHEN DUE SHALL BEAR INTEREST AT A NOMINAL RATE OF FIVE PERCENT (5.0%) PER ANNUM, OR THE MAXIMUM LEGAL RATE IF LESS, COMMENCING WITH THE PAYMENT DUE DATE. SPENDBOSS shall be entitled to withhold performance until such undisputed amounts are paid in full. Customer shall reimburse SPENDBOSS for all reasonable costs of collection of amounts it has not successfully disputed, including reasonable attorneys’ fees. If SpendBoss suspends Customer’s Account as a result of late payment and Customer wishes to re- activate Customer’s Account, then SpendBoss may charge Customer a re-activation fee equal to 50% of the then-current applicable customer set up fee.

5. TERM AND TERMINATION

5.1       Term. The Term will begin on the “Commencement Date” when SPENDBOSS begins making the Software available to the Customer. The Term shall continue in effect for the period agreed to in the sales order (the “Initial Contract Term”), unless sooner terminated as provided herein. Upon expiration of the Initial Term, the Term shall automatically renew for successive terms of one (1) month (each a “Renewal Term”) unless sooner terminated as provided herein.  Collectively, the Initial Term and any Renewal Terms are referred to as the “Term”.

5.2       Termination for Breach. Either party may terminate this Agreement in the event of a breach of any material term or condition hereof by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not resolved within thirty (30) days of notification, or, in the case of a failure to pay fees in a timely manner by Customer, a ten (10) day period.

5.3       Termination for Convenience. Customer may terminate this Agreement for convenience with thirty (30) days prior written notice.

5.4       Effect of Termination.  In the event the Term is terminated by Customer for convenience, or by SPENDBOSS as a result of a material breach by Customer, Customer shall pay SPENDBOSS half (½) the License Fees owed for the remaining Term of this Agreement. In the event of termination of the Term as outlined in this Agreement, Customer’s access and use of the Software shall cease immediately, SPENDBOSS will make available a copy of the Customer’s database file, and the provisions of Sections 4, 12, 14, 15, 16, and 20 shall survive.

6. SYSTEM MONITORING

SPENDBOSS will monitor performance indicators on the systems and network infrastructure in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain application performance.

7. BACKUPS

SPENDBOSS shall create fully restorable Customer Data backups in accordance with the following:

Hourly incremental back-ups.

Daily Full back-ups.

SPENDBOSS shall regularly store a copy of the backup materials in a secure location and not at the same location as its server.

8. SUPPORT

Priority Email 8am – 7pm (M-F) EST

Phone Hotline 8am – 7pm (M-F) EST

9. UPGRADES

9.1       Minor Upgrades. SPENDBOSS will install minor upgrades/releases of the Software which are generally made available to its other subscribers, including patches and/or fixes, as they are made available at no charge during the Term. SPENDBOSS will determine and announce all planned upgrades.

9.2       Major Upgrades. Upgrades to major releases (and related conversions) require careful planning and data decisions that must be managed jointly by Customer and SPENDBOSS.

10. CUSTOMER CONTACTS

Customer shall identify and name an appropriate individual, with corresponding contact information, including electronic mail address, as the “Primary Contact” with whom SPENDBOSS should communicate matters regarding the Software and Services, such as maintenance notifications, and who has the authority to make requests including the release of Customer Data to SPENDBOSS, the restoration of data, and other configuration changes.

11. CUSTOMER RESPONSIBILITIES

Customer is responsible for maintaining its User desktops, laptops, tablets, and/or phones and providing Users’ network access to the Software. Customer is also responsible for ensuring that its Users comply with the terms and conditions of this Agreement with respect to use of the Software and Services. Customer shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to Software hosted at the Site. SPENDBOSS shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Customer in accessing the Internet to access the Software. Customer shall provide adequate industry “best practice” standards to ensure reasonable security for integration between Customer’s applications and the Software at the Site. Customer shall provide accurate input information in the manner reasonably prescribed by SPENDBOSS in connection with the Software and Services provided hereunder. Customer shall advise SPENDBOSS of any changes to Customer’s operations, Primary and Secondary Contacts, or other information that would require a change in the support, operation, or configuration of the hosted Software. Customer shall be responsible for ensuring that any Customer Data is accurate, not corrupt in any way, and does not contain any viruses.

12. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

12.1     SPENDBOSS Rights. SPENDBOSS owns and shall retain all Intellectual Property Rights to the Software, User Documentation and Services. The Software and User Documentation contains Trade Secret and other Proprietary Information owned by SPENDBOSS and is protected by United States copyright laws and international trade provisions. Customer must treat the Software like any other copyrighted material and Customer may not copy or distribute the Software, electronically or otherwise, for any purpose. Customer hereby grants to SPENDBOSS a nonexclusive right to use all Customer Data as necessary during the Term solely for the purposes of providing the Software and Services to Customer and its authorized Users pursuant to this Agreement.

12.2     Customer Rights. Customer owns and shall retain all Intellectual Property Rights in and to Customer Data and other proprietary information of Customer.

13. OTHER RESTRICTIONS

Use of the Software and Services is restricted to use by the specific licensing entity only, and only for Customer’s internal business purposes. Customer may not use the Software for the benefit of any non-affiliate third parties or provide service bureau or other access or use of the Software to non-affiliate third parties. Customer may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Software, Services (or any portion thereof, including without limitation any capacity) or the User Documentation, or any portions thereof, to any non-affiliate third party, and any attempt to do so is null and void. Customer may not reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software. Software and Customer Data shall not be used for any commercial purpose beyond the functionality driven by the Software.

Customer will not use the Software or Services to take any actions that (i) infringe` on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation (including those regarding export control); (iii) are defamatory, trade libelous, threatening, harassing, or obscene; or (iv) constitute unauthorized entry to any machine accessible via the network. Customer shall not interfere with or disrupt network users, services or equipment with the intent to cause an excessive or disproportionate load on SPENDBOSS’s or its suppliers’ infrastructure by means of (but not limited to) distribution of unsolicited bulk emails or chain letters, viruses, Trojan horses, worms, or other similar harmful or deleterious programming routines. Customer will comply with the usage policies of SPENDBOSS’s suppliers. SPENDBOSS may, in its discretion, revise these service use restrictions upon thirty (30) days’ prior notice to Customer.

14. WARRANTIES

14.1     Mutual Warranties. Each party warrants that (i) it has the right and power to enter into this Agreement, and (ii) it will comply with any applicable laws and regulations pertaining hereto.

14.2     Limitation of Liability. SPENDBOSS SHALL HAVE NO LIABILITY WITH REGARD TO INVENTORY LEVELS OR CUSTOMER’S OUTCOMES USING THE SOFTWARE THAT ARE NOT THE RESULT OF SPENDBOSS’S NEGLIGENCE.

14.3     Confirmation of Assignments. Neither party may assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld.

14.4     Nondisclosure. Customer acknowledges that Work Product, Intellectual Property Rights and other information provided by SPENDBOSS to Customer hereunder represent Proprietary Information of SPENDBOSS. SPENDBOSS acknowledges that Customer Trade Secrets, Intellectual Property, Customer Data and other information provided by Customer to Spendboss hereunder represent Proprietary Information of Customer. Each party agrees with the other (i) to hold the Proprietary Information in the strictest confidence, (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, subject to the provisions of subsection (iv) below, (iii) not to make use of the Proprietary Information other than for the permitted purposes under this Agreement, and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement, and shall exercise due care to monitor and ensure compliance with this Agreement. The nondisclosure and confidentiality obligations set forth in this Section 14.4 shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of five (5) years after termination hereof.

15. INDEMNITY

15.1     Indemnification by Customer.  Customer shall indemnify and hold SPENDBOSS, its affiliates and subsidiaries and their respective directors, officers, employees and representatives, harmless from any and against any claims, damages, losses, liabilities, causes of action or injuries alleged by a third party (other than an Affiliate of SPENDBOSS) together with all costs and expenses, including penalties, interest levied, reasonable attorneys’ fees and court costs, arising out of or resulting from (a) any failure by Customer, its Users, employees or representatives to comply fully with the obligations set forth in this Agreement, including without limitation obligations for payment of taxes and against unauthorized copying, use, reverse engineering and related infringing activities and disclosure of Proprietary Information; and (b) any failure by Customer, its employees or representatives to comply fully with the posted or published terms of use, privacy policies, security policies and guidelines of SPENDBOSS with respect to the Services, as amended from time to time.

15.2     Indemnification by SPENDBOSS.  SPENDBOSS shall indemnify and hold Customer, its affiliates and subsidiaries and their respective directors, officers, employees and representatives, harmless from any and against any claims, damages, losses, liabilities, causes of action or injuries,  alleged by a third party (other than an affiliate of Customer) together with all costs and expenses, including penalties, interest levied, reasonable attorneys’ fees and court costs, arising out of or resulting from (a) any failure by SPENDBOSS, its employees or representatives to comply fully with the obligations set forth in this Agreement, including without limitation disclosure of Proprietary Information; and (b) any claim that any of the Services, or Customer’s or any User’s authorized use of the Software, actually does or threatens to infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other proprietary rights of a third party; provided however, that SPENDBOSS shall have no liability or obligation for any such third party action or losses to the extent that such action or losses arise out of or result from any unauthorized copying, use, reverse engineering or other related infringing activities by Customer.

16. RIGHTS TO WORK PRODUCT

Subject to Section 14 above, all Work Products are the property of SPENDBOSS and are available to Customer. Customer shall have no right to transfer, assign, convey or permit any third party to use or copy any Work Product.

17. INDEPENDENT CONTRACTOR STATUS

SPENDBOSS performs the Services as an independent contractor, not as an employee of Customer. Nothing in this Agreement is intended to construe the existence of a legal partnership, joint venture, or agency relationship between Customer or Customer and SPENDBOSS.

18. AUDIT RIGHTS

SPENDBOSS shall have the right to audit Customer’s use of the Software and compliance with this Agreement from time to time at SPENDBOSS’s sole discretion. Customer agrees to permit SPENDBOSS reasonable access to its facilities and personnel during normal business hours for the purpose of conducting such audits. In the event such audit reveals Customer is exceeding the scope of use permitted by this Agreement, then Customer shall pay SPENDBOSS’s additional fees for such use (at the then-current list price). SPENDBOSS shall be responsible for all costs and expenses incurred in connection with any such audit.

19. DISPUTE RESOLUTION

Except for claims brought under Section 4, 12, 13, and 16, SPENDBOSS and Customer, shall arbitrate any dispute resulting from or arising from the performance of this Agreement. Any such arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA”). Any such arbitration shall be held in Charlotte, NC USA and directed by the AAA. Notwithstanding the foregoing or the then-current specified commercial rules of the AAA, the following shall apply with respect to the arbitration proceeding: (a) the arbitration proceedings shall be conducted by one (1) arbitrator selected by the parties, provided; if the parties fail to make such designation within five (5) days after receipt by the AAA of the demand for arbitration, the AAA shall make the appointment in its sole discretion (provided such arbitrator shall have a minimum of ten (10) years experience and knowledge of spend management software systems and related agreements); and (b) the existence, subject, evidence, proceedings and rulings resulting from the arbitration proceedings shall be deemed Confidential Information, and shall not be disclosed by either party, their representatives, or the arbitrator except: (i) to the professional advisors of each of the parties; (ii) in connection with a public offering of securities of either of the parties; (iii) as ordered by any court of competent jurisdiction; or (iv) as required to comply with any applicable governmental statute or regulation.

20. MISCELLANEOUS

20.1     Authority. Each party possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder.

20.2     Force Majeure. No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that they are unable to perform and is directly or indirectly due to any cause or circumstance beyond the reasonable control of such party including, without limitation, acts of God, fire, flood, storms, earthquake, strike or other labor dispute. The party affected by an event of Force Majeure shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.

20.3     Language. The language of this Agreement and any documents required by it or arising in connection with it as well as any negotiations between the parties shall be English.

20.4     Amendments. SpendBoss may amend the Terms and Conditions of this SAAS Agreement at any time by giving reasonable notice, including without limitation posting the most current agreement at the URL spendboss.com/terms. All revised and amended Terms and Conditions of the SAAS Agreement shall be binding upon you.

20.5     Governing Law. This Agreement is in all respects to be exclusively construed, governed and enforced in accordance with the internal laws of the State of North Carolina, USA, excluding all conflict of laws rules as from time to time amended and in effect. Venue shall be in the State or Federal Courts sitting in Mecklenburg County, North Carolina.

20.6     Injunctive Relief. In the event either party is in breach of any covenant of this Agreement, the parties acknowledge and agree that the non-breaching party will be greatly damaged, and such breach(es) will be irreparable and difficult to quantify; therefore, either party may apply to any court of competent jurisdiction in the United States or any other jurisdiction accepting jurisdiction under this specific provision of the Agreement, who, notwithstanding the provisions of Section 20.5 (Governing Law), will apply the laws of its own jurisdiction in determining whether relief shall be granted to the non-breaching party, for injunctive or other equitable relief to restrain such breach or threat of breach, without impairing, invalidating, negating or voiding the non-breaching party’s rights to relief either at law or in equity.

20.7     Litigation Costs and Expenses. If any party institutes any legal suit, action or proceeding against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses.

20.8     Compliance with Laws. Each party shall comply with all applicable laws, ordinances, rules and regulations of governmental authorities.

20.9 All notices under this Agreement shall be given in writing and shall be delivered either by hand, by overnight courier, fees pre-paid by sender, addressed to the receiving party at the address then specified on the receiving parties corporate website or last shared Corporate Headquarters.

20.10   Severability and Waiver. If any provision of this Agreement is determined to be invalid by any court of final jurisdiction, then it shall be omitted and the remainder of the Agreement shall continue to be binding and enforceable. In addition, the Court is hereby authorized to enforce any provision of the Agreement that the Court otherwise deems unenforceable, to whatever lesser extent the Court deems reasonable and appropriate, rather than invalidating the entire provision. Except where otherwise provided, the waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.