THIS MASTER SOFTWARE SERVICES AGREEMENT TERMS AND CONDITIONS (this “Agreement”) is made and entered into as of the Effective Date, by and between Flourish Software, Inc., a Delaware Corporation (“Flourish”), and the individual or entity set forth in the Order (“Client”).

In consideration of the mutual covenants and agreements made herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:

1.1          “Affiliate” means any entity that is controlled by Client, where “control” means the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares, or interests in an entity.

1.2          “Agreement” means this Agreement, and any Orders, exhibits, Statements of Work and amendments to the foregoing. 

1.3          “Client” means the entity entering into this Agreement and any Affiliate designated in this Agreement or an Order which is authorized to receive the Subscription Services.  Client shall be fully responsible for the performance of all of its Affiliates’ obligations under this Agreement.

1.4          “Client Content” means all data, imagery, information and other content (a) transmitted by or on behalf of Client through the System; (b) provided by Client or on Client’s behalf for use in connection with the Subscription Services; or (c) otherwise processed or stored by Flourish or its contractors on Client’s behalf pursuant to this Agreement.

1.5          “Documentation” means the then-current, commercially available user manuals, training materials and technical manuals relating to the Subscription Services provided to Client by Flourish pursuant to this Agreement.

1.6          “Effective Date” means the earlier of (a) the date set forth in the Order; or (b) the date Client begins using or receiving the Subscription Services.

1.7          “Intellectual Property Rights” means, on a world-wide basis, any and all (a) rights associated with works of authorship, including without limitation, copyrights, copyrightable rights, moral rights and mask work rights; (b) trademark, service mark and trade name rights and any similar rights recognized under applicable law; (c) rights in confidential information and trade secret; (d) patents and patentable rights; (e) all rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology; (f) all other intellectual and industrial property rights of every kind or nature, whether arising by operation of law, contract, license or otherwise; and (g) all international, national, foreign, state and local registrations, applications for registration and any renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisions, reissues, substitutions and reexaminations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of the foregoing (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions; to sue for all past, present and future infringements or other violations relating thereto; and to settle and retain all proceeds from any such actions).

1.8          “Marks” means the trademarks, service marks or trade names of Client.

1.9          “Order(s)” means the order(s), and any amendments thereto, executed by the parties and which references this Agreement.  Each Order shall specify the Subscription Services being subscribed for, the licensing parameters, the term of the Order, the applicable fees, billing period, and other charges, as well as payment terms.  Each Order with the terms of this Agreement, and any exhibits and amendments to such Order, is a separate and independent contractual obligation of Flourish from any other Order.  In the event of any conflict between the terms of this Agreement and the terms of any such Order, the terms of such Order shall prevail.

1.10        “Professional Services” means implementation, consulting and training services, including without limitation, technical services to facilitate setup and deployment of the Subscription Services specified in a Statement of Work.

1.11        “Statement of Work” means a document executed by both parties that describes the Professional Services to be performed by Flourish pursuant to the Professional Services Terms (as defined in Section 2.6), including without limitation, the project assumptions, specifications, scope, work plan, responsibilities, duration and fees for such Professional Services, which Statements of Work shall reference this Agreement and be sequentially numbered.  Each Statement of Work with the Professional Services Terms, and any exhibits, change orders and amendments to such Statement of Work, is a separate and independent contractual obligation of Flourish from any other Statement of Work.

1.12        “Subscription Services” means Flourish’s proprietary, web-based services set forth in an Order which are provided to Client on a subscription basis and enable use of the Flourish Software through the System.

1.13        “System” means the Flourish Software and the server grade computers and related networks maintained by or on behalf of Flourish and its third-party providers to host the Flourish Software and provide the Subscription Services to Client, all as hereafter modified, enhanced or replaced by Flourish. 

1.14        “Third-Party Offerings” means services delivered or performed by third parties independently of Flourish related to the Subscription Services, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Subscription Services.

1.15        “Flourish Software” means Flourish’s proprietary software programs used by Flourish to provide the Subscription Services (including, without limitation, all source code, object code, designs, copyrightable works, ideas, inventions, technology and other Intellectual Property Rights therein), as modified, enhanced or replaced by Flourish from time to time.  For the avoidance of doubt, Flourish Software does not include Client Content.

1.16        “Work Product” means any software, data, documentation, graphics, text, code, inventions, pictures, audio, video, animations, enhancements, improvements, methods, processes, works of authorship, work-flow methods or other deliverables or any portions of the foregoing that Flourish creates, whether alone or jointly, while performing Professional Services or any other services hereunder.  Work Product excludes: (a) the Subscription Services; (b) the System; (c) any generic routines or code that have general application to the Flourish Software or System; and (d) all modifications, alterations, derivative works and enhancements to the foregoing, and all copies thereof.

2.             Services.

2.1          Subscription Services.  Subject to the terms and conditions set forth herein, including without limitation, Client’s payment of all applicable fees, Flourish hereby agrees to provide the Subscription Services, and in connection therewith, Flourish hereby grants to Client during the term of the applicable Order a non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) access and use the Subscription Services to operate Client’s facilities that, collectively, may not exceed any limits specified in the applicable Order; (b) to transmit and receive Client Content to and from the System; and (c) use the Documentation in connection with such rights.  The rights granted to Client pursuant to any Order shall terminate upon the termination or expiration of this Agreement or the applicable Order for any reason. All rights not expressly granted to Client are reserved by Flourish and its licensors.

2.2          Limitations.  Client shall not: (a) access or use any portion of the Subscription Services or System except as expressly authorized pursuant to an Order; (b) cause or permit decompilation, reverse assembly or reverse engineering of all or any portion of the Subscription Services or System; (c) copy any ideas, features, functions or graphics of the Subscription Services or System or modify or make derivative works based upon the Subscription Services or System; (d) delete, fail to reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Subscription Services, System or Documentation; (e) directly or indirectly, sublicense, relicense, distribute, disclose, use, rent or lease the Subscription Services or System, or any portion thereof, for third-party use, third-party training, facilities management or time-sharing, or use as an application service provider or service bureau; or (f) record transactions from non-approved payment providers within Flourish's point of sale product.  Without limiting the foregoing, Client may not use the Subscription Services or System to: (i) send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Subscription Services, System or the data contained therein; or (iii) attempt to gain unauthorized access to the Subscription Services or System. Enabling the acceptance, recording, and reporting of non-partner, Third-Party payment methods within Flourish's retail offering will incur a 400-bps (4%) fee of Gross Payment Volume recorded through the system, billed monthly. Furthermore, using payment methods in Flourish Retail (e.g. Check, etc) to record Third-Party payments other than their intended use is strictly forbidden and subject to this fee.

2.3          Support.  Client will be responsible for providing first line maintenance and support to its authorized end users in connection with the Subscription Services.  Flourish will allow up to two (2) qualified employees of Client who have been trained on use of the Subscription Services (the “Designated Employees”) to contact Flourish with technical questions or issues with respect to the Subscription Services and to report System outages or failures.  Flourish shall respond to the technical support questions from the Designated Employees and commence the process of responding to System or Subscription Services outages or failures in accordance with Flourish’s standard procedures.  The Designated Employees shall assist Flourish in resolving issues with the Subscription Services and System.  Flourish is under no obligation to provide functional updates, enhancements or upgrades to the System or Subscription Services by any time certain. 

2.4          System Availability.  Flourish will use commercially reasonable efforts to enable access to the Subscription Services with no more than approximately one (1) hour of down time per day.  Flourish reserves the right to perform maintenance of the Subscription Services and System as needed and, except in the event of emergency maintenance, will schedule such maintenance before or after 8:00 AM – 9:00 PM Monday-Friday (excluding holidays) U.S. Eastern Time.  Client acknowledges and agrees that certain portions of the Subscription Services, including without limitation, data storage, hosting, and System hardware management, may be provided by third-party service providers.  Flourish will provide ongoing management of the System, located at the third-party provider’s location, in accordance with Flourish’s agreement with the third-party provider(s), in order to maintain the best practical availability of the Subscription Services.  Flourish may change its third-party data hosting provider to another hosting provider, in Flourish’s sole discretion, from time to time.

2.5          Browsers.  Client acknowledges and agrees that the Subscription Services will only be compatible with and support use with (a) the then-current version, and (b) the most recently superseded version for one year from the date of the general release of the then-current version, of the following browsers: Firefox, Safari and Google Chrome.

2.6          Professional Services.  If requested and as available, Flourish will provide Client with Professional Services pursuant to mutually agreeable Statements of Work in accordance with the Professional Services Terms attached hereto as Exhibit A (“Professional Services Terms”).

2.7          Provisioning of the Subscription Services.  Flourish may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing improvement of the Subscription Services.  Client agrees that its subscription to the Subscription Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Flourish regarding future functionality or features.

3. Client Obligations.

3.1          Resources.  Except as expressly set forth herein, Client and its end users shall be solely responsible for providing all resources, equipment and software at its or their respective facilities which are necessary for them to access the System and/or receive the Subscription Services.  Client and its end users must provide all equipment and licenses necessary to access and use the Internet, and pay all fees associated with such access and use.  To the extent Flourish’s provision of the Subscription Services requires data, documents, information or materials of any nature to be furnished, in whole or in part, by Client or its employees, agents, contractors, representatives or authorized users, Client will cause such employees, agents, contractors, representatives and authorized users to furnish such data, documents and information in a manner which permits Flourish to perform the Subscription Services as contemplated herein.

3.2          Third-Party Coordination; Required Consents.  To the extent the Subscription Services require access to a third-party service provider who is under contract with Client, or access or use of such provider’s information or interconnection with such provider’s services, facilities, technology or systems in order to receive or transmit Client Content, Client shall be responsible for obtaining any required third-party licenses or consents necessary for Flourish to access and use such information, services, facilities, technology or systems.

3.3          Third-Party Web Sites, Products and Services.  The Subscription Services may rely on or require that Client access Third-Party Offerings. If Client elects to use the Subscription Services with Third-Party Offerings, Client agrees that: (a) its use of Third-Party Offerings must at all times comply with the terms of service governing such offerings; and (b) Flourish has the right to export and import Client Content to and from such Third-Party Offerings for purposes of delivering the Subscription Services purchased by Client. Client’s or its user’s use of third-party websites must at all times comply with the terms of service governing such websites. Client understands and agrees that the availability of the Subscription Services, or certain features and functions thereof, is dependent on the corresponding availability of Third-Party Offerings or specific features and functions of Third-Party Offerings. Flourish will not be liable to Client or any third party in the event that changes in Third-Party Offerings cause the unavailability of the Subscription Services or any feature or function thereof. Flourish may also refer Client to third-party service providers that offer Third-Party Offerings. Flourish does not make any representations or warranties regarding any such Third-Party Offerings, whether or not such Third-Party Offerings or services are designated by Flourish as “certified,” “approved,” “recommended” or otherwise, or the services are provided by a third party that is a member of a Flourish partner program. To the extent that Flourish requires that Client grant Flourish authorizations, passwords or other user credentials to a Third-Party Offering (“Flourish Access Codes”) to retrieve Client Content or to enable interoperability with the Subscription Services, Client shall promptly provide such Flourish Access Codes.

3.4          Integrated Third-Party Software.  Flourish may integrate third-party computer software into the Subscription Services.  In such an event, Flourish will obtain, at no additional charge to Client, all rights necessary for Client to use such third-party computer software with the Subscription Services. Client may obtain a complete machine-readable copy of the source code for such free software under the terms of the appropriate license agreement listed in this Section 3.4 without charge except for the cost of media, shipping, and handling, upon written request to Flourish.  All free software is distributed to Client WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  A copy of the free software is included with the Subscription Services.  Flourish disclaims on behalf of all individuals or entities that distributed such free software to Flourish (the “Contributors”) all warranties and conditions, express and implied, including warranties or conditions of title and non-infringement, and implied warranties or conditions of merchantability and fitness for a particular purpose; and Flourish excludes on behalf of all such Contributors (i) all liability for damages, including direct, indirect, special, incidental and consequential damages, such as lost profits; and (ii) any provisions which differ from this Agreement which are offered by any particular Contributor alone and not by any other party.

 3.5          Compliance with Laws.  Client will comply with all applicable laws, rules and regulations relating to Client’s or its authorized user’s receipt or use of the Subscription Services.  Without limiting the foregoing, Client will be solely responsible for determining the extent to which the design or provision of the Subscription Services is subject to any privacy laws or regulations (“Privacy Laws”) or the oversight of any regulatory agency charged with the enforcement thereof (“Regulatory Oversight”).  To the extent that the design and operation of the Subscription Services is subject to any Privacy Laws or Regulatory Oversight, Client will specify any procedures to be taken by Flourish during the customization and provision of the Subscription Services to cause the Subscription Services to be in compliance with such Privacy Laws and Regulatory Oversight.  Client shall not export the Subscription Services, System or Documentation in violation of U.S. Department of Commerce export administration regulations.

3.6          Activity.  Client will access the Subscription Services using its email addresses and passwords.  Client is responsible for maintaining the confidentiality of such addresses and passwords and any activity that transpires through the use of such addresses and passwords.  Client shall: (a) notify Flourish immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to Flourish immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Client Content that is known or suspected by Client; and (c) not impersonate another Flourish client or user or provide false identity information to gain access to or use of the Subscription Services.

4.             Prices; Ordering; Payment.

4.1          Invoicing and Payment.  Except as otherwise specified in an Order or Statement of Work: (a) Client shall pay to Flourish all fees, charges and expenses due and owing pursuant to an Order or Statement of Work in U.S. dollars to the address designated on the invoice within thirty (30) days following Flourish’s invoice date; and (b) all payment obligations are non-cancellable, non-refundable and non-contingent. Client may not set-off any amounts owing to Client against any payments owing to Flourish hereunder.  Flourish reserves the right to change its fees at any time upon ninety (90) days prior written notice to Client.  Payments which are not received when due shall bear interest at the lesser of the maximum amount chargeable by law or one and a half percent (1½%) per month commencing with the date payment was due.  In addition, in the event Client fails to timely pay any fees or charges when due, Flourish may, in its discretion, suspend or terminate any Subscription Services or other services hereunder in accordance with Section 5.3.  Client will continue to be charged for all Subscription Services and other services during any period of suspension. 

4.2          Taxes and Duties.  Excluding taxes based on Flourish’s net income, Client is liable and responsible for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to Client’s receipt or use of the Subscription Services, whether or not Flourish invoices Client for such taxes, duties or customs fees, unless Client timely provides Flourish with a valid tax exemption or direct pay certificate showing Client is exempt from such payments.  If Flourish is required to pay any such taxes, duties or customs fees, Client shall reimburse Flourish for such amounts in accordance with Section 4.1, and Client further agrees to indemnify, defend and hold harmless Flourish for any such taxes, duties and customs fees and any related costs, interest and penalties paid or payable by Flourish with respect thereto.

4.3          Expenses. Client shall reimburse Flourish for any travel, meal, lodging and out-of-pocket expenses incurred in carrying out its obligations under this Agreement.

4.4          Audits.  During the Term and for a period of two (2) years thereafter, upon five (5) days prior written notice to Client, Flourish may audit Client’s facilities, records and use of the Subscription Services to determine Client’s compliance with the terms and conditions of this Agreement.  Such audits shall occur during regular business hours and shall be conducted in a manner designed to limit disruption to Client’s business.  In the event an audit reveals that Client has underpaid any fees or charges owing to Flourish, or that Client is using the Subscription Services in an unauthorized manner, Client shall immediately pay to Flourish any amounts due, together with interest thereon at the lesser of the maximum amount chargeable by law or one and a half percent (1½%) per month commencing with the date payment was due, and Client shall reimburse Flourish for all costs of conducting the audit.

5.             Term and Termination.

5.1          Term.  The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue until terminated in accordance with the provisions hereof.  Either party may terminate this Agreement upon written notice to the other party in the event no Order or Statement of Work is outstanding hereunder.

5.2          Termination.  Either party may terminate this Agreement or the applicable Order or Statement of Work if the other party breaches this Agreement or such Order or Statement of Work, as applicable, and fails to correct the breach within thirty (30) days following receipt of written notice from the non-breaching party.  In addition, Flourish may terminate this Agreement immediately if Client files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or if a trustee is set up to administer a substantial portion of Client’s assets or business. Any Client request to terminate before the completion of the applicable term must be received before the 15th of the month. Any early termination requests received on or after the 15th of the month will be processed the following calendar month. 

5.3          Suspension of Services.  In the event (a) Client fails to timely pay any fees when due; or (b) Flourish believes, upon advice of counsel, that any element of the Subscription Services, or Client’s receipt or use thereof, violates any applicable law, rule or regulation, Flourish may it its sole discretion suspend or terminate any Subscription Services and other services immediately without notice.

5.4          Effect of Termination.  Upon termination of this Agreement or an Order or Statement of Work for any reason, all payment obligations shall become immediately due and owing and Client shall immediately cease using the applicable Subscription Services and return all Documentation to Flourish.  In addition, in the event this Agreement or any Order is terminated early, before completion of the applicable term, for any reason other than due to Flourish’s breach, Client shall pay to Flourish (in addition to any other amounts due under this Agreement) as liquidated damages within thirty (30) days following any such termination, (a) any non-refundable costs incurred by Flourish in connection with such termination including, but not limited to, hardware costs and licensing fees paid to third-party licensors; and (b) seventy-five percent (75%) of the remaining recurring fees (including, without limitation, the subscription fees paid to use and access the Subscription Services) that would have been charged for the then remaining term of the Agreement or Order(s), as applicable, all of which shall be immediately accelerated.  Client acknowledges and agrees that (i) the payment of such fees does not constitute a penalty, but is due to the difficulty in estimating actual damages for early termination; (ii) such fees are a reasonable estimate of the amounts required to fairly compensate Flourish in such events; and that (iii) such fees have taken into consideration Flourish’s cost savings due to the termination of this Agreement and the present value of accelerated payments.  Upon termination of this Agreement, Client shall also return to Flourish or destroy all copies of Flourish’s Trade Secrets and Confidential Information in every form.  Upon request of Flourish, Client agrees to certify in writing to Flourish that it and each of its Affiliates have performed the foregoing obligations.  Sections 1, 4, 5.4, 6.2, 6.3, and 7, 8, 9 and 10 shall survive any termination of this Agreement in accordance with their respective terms.  In the event of any termination hereunder, Client shall not be entitled to any refund of any payments made by Client.

6.             Representations and Warranties.

6.1          Services Warranty.  Provided that Client notifies Flourish of the non-conformance within the warranty period, and subject to the limitations set forth herein, Flourish warrants that the Subscription Services will be provided substantially in accordance with the applicable Documentation for a period of ninety (90) days from the date such Subscription Services are first provided.  No specific result from the provision of Subscription Services is assured or guaranteed.  In the event of any breach of the foregoing warranty, Flourish shall, at its option and as Client’s sole and exclusive remedy, (a) re-perform the Subscription Services which were not performed as warranted at no additional charge; or (b) in the event Flourish is unable to re-perform such Subscription Services after exercising commercially reasonable efforts to do so, refund the fees paid to Flourish for the Subscription Services which were not performed as warranted.  Notwithstanding the foregoing, Flourish shall have no obligation to provide the warranty services described in this Section 6.1 if: (i) the performance failure is at least partially attributable to Client’s deviation from applicable operating instructions or failure to perform Client’s obligations set forth in this Agreement; or (ii) Client or any other person or entity (other than Flourish) has modified the Subscription Services.

6.2          Client Acknowledgment.  Client acknowledges and agrees that it has made its own evaluation in deciding to subscribe for the Subscription Services.  The warranties provided in this Agreement extend solely to Client and to no other person or entity whatsoever.  Without limiting the foregoing, Flourish is not responsible for the results that may be obtained from use of the Subscription Services.

6.3          DISCLAIMERS.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, FLOURISH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE  SUBSCRIPTION SERVICES, THE SYSTEM OR ANY OTHER SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, PROFESSIONAL SERVICES.  FLOURISH EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT.  FLOURISH DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES, SYSTEM OR OTHER SERVICES ARE OR WILL BE ERROR-FREE OR THAT THE USE OR OPERATION OF THE SUBSCRIPTION SERVICES, SYSTEM OR OTHER SERVICES WILL BE UNINTERRUPTED OR THAT ALL ERRORS OR ISSUES WITH THE SUBSCRIPTION SERVICES, SYSTEM OR OTHER SERVICES CAN OR WILL BE CORRECTED. 

7.             Confidentiality.

7.1          Confidentiality.  Each party (the “Receiving Party”) acknowledges that it will have access to Confidential Information and Trade Secrets of the other party (the “Disclosing Party”).  For purposes of this Agreement, “Trade Secrets” means information, without regard to form, 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; and “Confidential Information” means information, other than Trade Secrets, that is of value to Disclosing Party and is treated as confidential.  Flourish’s Trade Secrets and Confidential Information include, without limitation, the Subscription Services, the System, the Documentation and object and source code for the Flourish Software.  The Receiving Party agrees to use the Trade Secrets and Confidential Information of the Disclosing Party solely for purposes of performing its obligations or exercising its rights under this Agreement.  The Receiving Party agrees to discuss the Trade Secrets and Confidential information of the Disclosing Party only with, and to transmit the Trade Secrets and Confidential Information only to, those officers, employees and consultants of the Receiving Party who have a need to know the Trade Secrets or Confidential Information for the purposes set forth herein and who have agreed in writing to treat such information as confidential on terms no less restrictive than as set forth in this Agreement.  The parties acknowledge and agree that the terms of any previously executed confidentiality or nondisclosure agreements shall remain in effect with respect to the information exchanged thereunder.

7.2          Security Precautions.  The Receiving Party shall take commercially reasonable security precautions to prevent unauthorized use and disclosure of the Trade Secrets and Confidential Information of the Disclosing Party and shall use at least the same degree of care the Receiving Party employs with respect to its own Trade Secrets and Confidential Information, but in no event less than a reasonable standard of care.  The Receiving Party shall not permit unauthorized access to the Trade Secrets or Confidential Information of the Disclosing Party.

7.3          Duration and Exceptions.  With regard to Confidential Information, the obligations in this Section 7 shall continue for the Term and for a period of five (5) years thereafter.  With regard to Trade Secrets, the obligations in this Section 7 shall continue for so long as such information constitutes a trade secret under applicable law, but in no event less than the Term and for a period of five (5) years thereafter.  The Receiving Party’s obligations with respect to Trade Secrets and Confidential Information of the Disclosing Party shall not apply to the extent such Trade Secrets or Confidential Information: (a) are previously known to the Receiving Party without restriction on disclosure; (b) cease to be secret or confidential except by reason of a breach of this Agreement by the Receiving Party; (c) are independently developed by the Receiving Party without reference to the Trade Secrets or Confidential Information of the Disclosing Party; or (d) were received from a third party without obligations of confidence and without breach of this Agreement.  In addition, the Receiving Party may disclose Trade Secrets and Confidential Information of the Disclosing Party to the extent such disclosure is required by applicable law or by any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable legal requirements before such disclosure occurs so as to enable the Disclosing Party to obtain such protection as may be available to preserve the confidentiality of such information.

8.0 Intellectual Property Rights.

8.1          Flourish’s Intellectual Property.  Flourish (or its licensors) retains title to the Subscription Services, System, and Documentation, and all modifications, alterations, derivative works, and enhancements thereto, and all copies thereof and Intellectual Property Rights therein.  Except as specified herein, Client does not acquire any rights, express or implied, in the Subscription Services, System or Documentation, and has no right to commercialize or transfer the Subscription Services, System or Documentation, in whole or in part.  No license, right or Intellectual Property Right in any Flourish trademark, trade name or service mark is granted pursuant to this Agreement.  Subject only to the following, title to all Work Product will at all times remain the sole and exclusive property of Flourish or its licensors; provided that Flourish shall not obtain any ownership rights in any Client Content provided by, or on behalf of, Client.  Upon request, Client agrees to execute such documents as may be reasonably requested by Flourish to secure Flourish’s rights in and to the foregoing.  Flourish hereby grants Client during the term of the applicable Order a non-exclusive, royalty free (subject only to the fees provided for in a Statement of Work), limited right and license to copy, use, modify and sub-license all Work Product.

8.2          Client Content. Client shall own all Client Content.  Client shall have sole responsibility for the accuracy, completeness, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership and right to use all Client Content, and Flourish shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Client Content for any reason.  Flourish does not warrant the correctness, completeness, merchantability or fitness for a particular purpose of any Client Content, and Client shall hold Flourish harmless from any and all third-party claims arising out of Client’s use or dissemination of any such Client Content.  In the event this Agreement is terminated (other than by reason of Client’s breach), Flourish will make available to Client a file of the Client Content in its possession, if any, within thirty (30) following Client’s request; provided such request is made within thirty (30) days following termination of the Agreement.  Flourish reserves the right to (a) withhold, remove and/or discard Client Content in its possession, if any, in the event Client breaches this Agreement, including, without limitation, non-payment of fees and charges; and (b) purge and delete Client Content, if any, in its possession if Client fails to request such Client Data within thirty (30) days following termination of this Agreement.

8.3          License to Client Content.  Client hereby grants to Flourish the non-exclusive right and license to (a) receive, retrieve, process, use and transmit any Client Content necessary or reasonably desirable to perform the Subscription Services or other services; (b) use, copy, manipulate and store any Client Content that will be archived, stored or otherwise transmitted in connection with the Subscription Services or other services; and (c) to aggregate Client Content and data with content and data from other clients (“Data Aggregations”) for purposes including, without limitation, product and service development and commercialization and quality improvement initiatives.  Flourish will redact Client Content in such a way as to not divulge Client’s Confidential Information or Trade Secrets.  All Data Aggregations will be the sole and exclusive property of Flourish.

8.4          License to the Marks.  Client hereby grants to Flourish the worldwide, non-exclusive limited right and license during the Term to use the Marks in connection with performance of the Subscription Services and its other obligations under this Agreement.

9.             Limitation on Liability.

9.1          EXCLUSION OF DAMAGES.  IN NO EVENT SHALL FLOURISH OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), EVEN IF FLOURISH HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. 

9.2          LIMITATION OF LIABILITY.  FLOURISH TOTAL AGGREGATE LIABILITY TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT TO FLOURISH DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO CLIENT’S FIRST CLAIM.

9.3          EXCEPTIONS.  THE FOREGOING LIMITATIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. 

10.          Miscellaneous.

10.1        Dispute Resolution; Governing Law.  The laws of the State of Georgia shall govern this Agreement, without reference to conflicts of law rules or principles. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.  Client hereby consents and submits to the exclusive jurisdiction and venue over any action, suit or other legal proceeding that may arise out of or in connection with this Agreement, by any state or federal court located within or about Atlanta, Georgia, USA.  Client shall bring any action, suit or other legal proceeding to enforce, directly or indirectly, this Agreement or any right based upon it exclusively in such courts.

10.2        Force Majeure.  Neither party will be liable for any loss, damage or delay resulting from any event beyond such party’s reasonable control (a “Force Majeure Event”), and delivery and performance dates will be extended to the extent of any delays resulting from any such Force Majeure Event.  Each party will promptly notify the other upon becoming aware that a Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Notwithstanding any other provision of this Section 10.2, a Force Majeure Event shall not relieve Client of its obligations to pay monies due and owing to Flourish hereunder.

10.3        Assignment.  Neither party shall assign, transfer, or otherwise delegate any of its rights, duties, or obligations under this Agreement in whole or in part to any individual, firm or corporation without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any attempted assignment (whether by operation of law or otherwise) shall be void; except that Flourish may delegate any of its rights, duties, or obligations under this Agreement to one or more of its affiliates.  Notwithstanding the foregoing, either party may assign its rights, duties, and obligations hereunder, without approval of the other party, to a party that succeeds to all or substantially all of its assets or business (whether by sale, merger, operation of law or otherwise), so long as the assignee agrees in writing to be bound by the terms and conditions of this Agreement; provided, however, that no such assignment by Client may be to a competitor of Flourish.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns.

10.4        Independent Contractors.  Nothing in this Agreement shall be construed to create an agency, joint venture, partnership or other form of business association between the parties.  Neither party has the right or authority to make any contract, representation or binding promise of any nature on behalf of the other party, and neither party shall hold itself out as having such right or authority.

10.5        No Waiver.  The failure on the part of either party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy.

10.6        Severability.  In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby.

10.7        Counterparts.  This Agreement may be executed in duplicate and either copy or both copies are considered originals.

10.8        Notices.  All official notices (including any notices regarding breach, termination, renewal, etc.) required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered mail or next day express mail or courier, postage prepaid.  Any such notice shall be deemed given (a) when so delivered personally; (b) three (3) days after, when sent by certified or registered mail; or (c) the day after, when sent by next day express mail or courier, as follows:  (i) if to Client, to it at such address as set forth in the Order; (ii) if to Flourish, to it at: Flourish, Software, Inc., 211 Thompson St. Chattanooga, TN 37405.  In addition, routine, non-contractual notices, consents and approvals (including support) given under this Agreement may be delivered in writing as provided above or through electronic mail or other electronic record addressed to the parties identified herein.

10.9        Marketing.  Client agrees that Flourish may reference Client’s execution of this Agreement and its status as a user of the Subscription Services in marketing materials and in sales presentations.  Flourish may use Client’s Marks in connection with such usage.

10.10      Entire Agreement. This Agreement (including any Orders, Exhibits, Statements of Work and attachments, which are hereby incorporated herein by reference) constitute the final and entire agreement between the parties, and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.

Exhibit A

Professional Services Terms

 These Professional Services Terms are hereby annexed to and made a part of the Master Software Services Agreement Terms and Conditions (the “Agreement”) between Flourish and Client.  In the event any provisions of these Professional Services Terms contradict or are inconsistent with the provisions of the Agreement, the provisions these Professional Services Terms shall prevail and govern.

1. Services. Upon request by Client, Flourish will provide consultants to perform implementation, consulting and training services to the extent such Professional Services are identified in any mutually agreed upon Statement of Work more fully describing the project assumptions, specifications, scope, work plan, responsibilities, duration and fees for such Professional Services, which Statements of Work shall reference the Agreement and be sequentially numbered.  Any modifications to a Statement of Work shall be made by written change order, in Flourish’s standard form, executed by both parties to this Agreement (a “Change Order”).  Each Change Order complying with this Section shall be deemed to be an amendment to the applicable Statement of Work to which it applies and shall become a part thereof.
2. Cooperation. All Professional Services will be coordinated with the designated Client project coordinator, as identified in each Statement of Work.  Client shall cooperate and provide information as is reasonably necessary or desirable for the timely completion of the Professional Services.  Client shall at all times make available its functional and/or information technology personnel as reasonably required or desirable for Flourish to perform the Professional Services, and Client shall timely fulfill its obligations and responsibilities set forth in each Statement of Work.  To the extent required or as specified in any Statement of Work or work plan, Client shall provide Flourish with access to its facilities, software, systems, data, information and support materials to perform the Professional Services. Client acknowledges that Flourish’s performance hereunder is contingent on Client’s timely and effective performance of Client’s responsibilities and Client’s timely decisions and approvals.  If Client fails to provide required information and/or make decisions as agreed or in a reasonably expeditious and timely manner, and such failure results in a delay in delivery of any deliverables or Work Product or to the overall project, Client agrees to extend the time frame for delivery of the deliverable or project, as applicable, on a day for day basis and compensate Flourish for any additional work required as a result of such delay.
3. Project Control. Flourish shall have the sole right to supervise, manage, contract, direct, procure, perform, or cause to be performed, all Professional Services performed by it pursuant to a Statement of Work.  Flourish may subcontract all or a portion of the Professional Services to a qualified third party.  In recognition that Flourish personnel may perform similar services for third parties, this Agreement shall not prevent Flourish from providing services or developing materials that may be perceived as competitive with those developed or provided hereunder, subject to the confidentiality provisions of the Agreement.
4. Compensation. All Professional Services will be provided by Flourish on a time, materials and expense basis at Flourish’s then current rates, unless otherwise agreed by the parties in a Statement of Work.
5. Termination. These Professional Services Terms shall be effective as of the Effective Date of the Agreement and shall remain in effect until (a) terminated by either party upon thirty (30) days prior written notice in the event no Statement of Work is outstanding; or (b) as provided in the Agreement, whichever is earlier.  Client shall be liable for payment to Flourish for all Professional Services provided or performed prior to the effective date of any such termination, including any expenses incurred pursuant to the provision of such Services.
6. Additional Services. Any services performed by Flourish at the request of Client that are outside the scope of any Professional Services described in the applicable Statement of Work shall be governed by these terms and will be billed at Flourish’s then current rates.

Prior Versions:

• Prior to May 19, 2023
• Prior to August 1, 2021