Incorporation Terms & Conditions

These Terms and Conditions (“Terms”) form a binding Services Agreement (the “Agreement”) between Commenda Technologies, Inc. (“Company,” “we,” or “us”) and the customer who purchases the Services (“Customer” or “you”). By checking the box at checkout and completing your order, you accept these Terms together with the order details you select during checkout (the “Order Form”), which is incorporated herein by reference. The Agreement contains, among other things, warranty disclaimers, liability limitations, and use limitations. The Services may include software-as-a-service access, professional services, managed services, or any combination thereof, as specified in the Order Form. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

Contents

1. Services and Support
2. Restrictions and Responsibilities
3. Confidentiality; Proprietary Rights
4. Payment of Fees
5. Term and Termination
6. Warranty and Disclaimer
7. Indemnity
8. Limitation of Liability
9. Miscellaneous

1. Services and Support

Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services, which may include software access, entity management, incorporation services, compliance filings, and/or other professional or managed services as set forth in the Order Form. To the extent the Services include access to Company’s software platform, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate. To the extent the Services include Indirect Tax Software Services or RootFi Software Services, Company will provide such software services in accordance with the Service Level Terms attached hereto as Exhibit A, which is incorporated herein by reference.

Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard support practices then in effect.

2. Restrictions and Responsibilities

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. Confidentiality; Proprietary Rights

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, methodologies, processes, or other technology developed in connection with professional services or support, and (c) all intellectual property rights related to any of the foregoing. For the avoidance of doubt, Customer’s entity data and filings remain Customer Data as defined herein.

Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. Payment of Fees

Customer will pay Company the then applicable fees described in the Order Form for the Services (which may include software subscription fees, recurring service fees, per-transaction fees, professional services fees, and/or other fees as set forth in the Order Form) in accordance with the terms therein (the “Fees”). If Customer requests services beyond the scope set forth on the Order Form, Company will provide a separate quote for such additional work, and Customer agrees to pay the applicable fees upon execution of a new or amended Order Form. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after receipt of the applicable invoice in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

Company will invoice Customer in accordance with the Invoice Period specified in the Order Form, and full payment must be received by Company thirty (30) days after receipt of each invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5. Term and Termination

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. Warranty and Disclaimer

Company shall use reasonable efforts consistent with prevailing industry standards to maintain any software components of the Services in a manner which minimizes errors and interruptions, and shall perform all professional and managed services (including entity management, incorporation, compliance filings, and accounting services) in a professional and workmanlike manner consistent with applicable professional standards. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT ANY SOFTWARE COMPONENTS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR FROM ANY PROFESSIONAL OR MANAGED SERVICES PROVIDED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. Indemnity

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.

8. Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Company may not identify Customer and use Customer’s logo and trademarks on Company’s website and in marketing materials to identify Customer as a customer except where express written approval is provided by Customer, which Customer shall not unreasonably withhold.

Exhibit A: Service Level Terms for Indirect Tax and Software Services

This Exhibit A applies solely where the Order Form specifies that the Services include Indirect Tax Software Services and/or RootFi Software Services (collectively, the “Covered Software Services”). In all other cases, this Exhibit A does not apply and no service level commitments are made with respect to any Services. For the avoidance of doubt, professional services, managed services, and any software services other than the Covered Software Services are not subject to the terms of this Exhibit A.

The Covered Software Services shall be available 99.95% of the time, measured monthly, excluding scheduled maintenance windows, holidays, weekends, and any downtime resulting from outages of third-party connections or utilities or other causes beyond Company’s reasonable control. If Customer requests maintenance during non-standard hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Downtime resulting from Customer’s acts or omissions, including misuse of the Services or failure to maintain required Equipment, shall also be excluded from any downtime calculation.

Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with the availability of the Covered Software Services shall be as follows: for each period of thirty (30) or more consecutive minutes of downtime, Company will credit Customer 5% of the monthly pro-rata equivalent of the Fees attributable to the affected Covered Software Services (calculated by dividing the applicable Fees for the then-current billing period by the number of months in such billing period); provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with written notice to Company) identifies that downtime is taking place, and continues until availability of the affected Covered Software Services is restored. In order to receive a downtime credit, Customer must notify Company in writing within twenty-four (24) hours from the time of the downtime event; failure to provide such notice will forfeit the right to receive a downtime credit for that event. Such credits may not be redeemed for cash, shall not be cumulative beyond a total of credits equal to one (1) week of the monthly pro-rata equivalent of the applicable Fees in any one (1) calendar month, and will only be applied to the month in which the incident occurred. Company’s blocking of data communications or other Service features in accordance with its policies shall not be deemed a failure to meet the service level commitments set forth herein.