BEACON DRIVING SOLUTIONS, LLC

CLIENT SERVICES AGREEMENT

Beacon Driving Solutions Web Site services on the Internet (the “Web Site”) are made available by Beacon Driving Solutions, LLC (“Company”). By accessing services of Company on the Web Site, you (“User”) hereby agree to be bound by all the terms and conditions contained in this Client Services Agreement ( “Agreement”). If you enter into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. In this case, “You” or “Your” shall refer to such entity and its affiliates.

If User does not have authority  or does not agree to the terms and conditions of this Agreement, or any amended Agreement, User may not access or use Web Site or use the Software, as that term is defined herein, via the Internet services of Company for any purpose, and User shall promptly discontinue such Internet access and use of Web Site. This Agreement is made and entered into between (“User”) and Beacon Driving Solutions, LLC, a Florida limited liability company (“Company”). 

Company reserves the right at its discretion to change the terms of this Agreement. The amended Agreement will be made available on-line and is effective as soon as it is posted on Company’s Web Site. User’s continued access and use of services on the Company Web Site after the posting of any amended Agreement shall constitute User’s acceptance of, and agreement to be bound by, any such changes.

THE MOST CURRENT VERSION OF THIS AGREEMENT, WHICH SUPERSEDES ALL PREVIOUS VERSIONS, CAN BE REVIEWED BY GOING TO THE WEBPAGE.  You are hereby put on notice that you are obligated to periodically review this document to make yourself aware of any changes hereto and any continued use of the Site shall constitute your acceptance thereof. 

1. DEFINITIONS

“Agreement” means this Client Services Agreement.

“Certified Driver” means an individual who has attended and passed the Certification Class.

“Certified Trainer” means an individual trainer who has attended and passed the Certification Class as a trainer.

“Client” means an employer who hires Company to train employers, trainers and/or drivers.

“Company” means Beacon Driving Solutions, LLC.

“Content” means information or electronic media owned, created, or obtained by Company (including eLearning training) from Company content licensors or publicly available sources and provide to You through the website.

“Documentation” means Company’s online user guides, documentation, help and training materials, as updated from time to time, accessible through the website.

“Driver Trainee” means an employee driver of the Client who has registered for or is taking the Certification Class.

“Trainer Trainee” means an individual who has been designated by the Client as a trainer to attend the Certification Class to become a trainer for the Client.

“Training Services” means the products and services including instructor led training and consulting that is used to educate drivers and trainers on advanced driving and behavior change methodologies.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm including but not limited to viruses, worms, malware, time bombs and Trojan horses.

“Trainee” means an individual who is registered for and attend the

“User” means any Client employee (trainer or driver) who is authorized to use to view and utilize the Online Content for presentation and recordkeeping purposes and has a legitimately obtained user identification and password.

“Vehicle” means any motorized automobile that can transport persons and/or materials. 

2. ACCESS TO THIS SITE

(A)To access this Site, Site resources, links or other content, you may be asked to provide certain registration details or other information.  It is a condition of your use of this Site that all information you provide will be correct, current, and complete.  If Company believes the information, you provide is not correct, current or complete, Company has the right to deny access to this Site, or to any of its resources, and to terminate or suspend your access at any time.

(B) Users will have access to the Portal through website and/or mobile applications. As part of the registration process, User will identify an administrative user – including their name, email, and phone number – for Authorized Users access to the Portal (“Access Credentials”). User will: (a) ensure the Authorized Users comply with the terms of this Agreement; (b) routinely review the Authorized Users and ensure Access Credentials are disabled for individuals no longer employed by User; and (c) be responsible for all acts and omissions of its Authorized Users.

(C) As a condition to access the Portal, User will work with Company to set up accounts to the Online Content for the Authorized Users by providing Company with the name, mobile phone number, email address, role, and other contact information (“User Data”) that is required to provide access to the Online Content. User shall ensure that all User Data is and will continue to be accurate.

(D) User will make reasonable efforts to prevent any unauthorized use of the Portal or the Online Content and will immediately notify Company in writing of any unauthorized use that comes to User’s attention. If there is unauthorized use by anyone who obtained access to the Portal or the Online Content, directly or indirectly through User or an Authorized User, User will take all steps reasonably necessary to terminate the unauthorized use. Users will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized use of the Portal or the  Online Content. 

(E) The Portal and/or the Online Content 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. Company will make reasonable efforts to provide advance electronic notice of any scheduled service disruption.

(F) User represents, covenants, and warrants that User and Authorized Users will use the Portal and the Online Content only in compliance with this Agreement and any standard published policies then in effect related to the Online Content or Portal, any documentation, and all applicable laws and regulations. Although Company has no obligation to monitor User’s or its Authorized Users’ use of the Portal and the  Online Content, Company may do so and may prohibit any use of the Portal and/or  Online Content it believes may be (or is alleged to be) in violation of the foregoing.

(G) Rights Limited to User. Any and all rights under this Agreement granted to User are limited to a specific designated person that has paid or for whom has been paid to Company the appropriate Access fee established by Company for access to and use of the Materials, Software, Content and/or Documentation as provided in this Agreement, and to whom a specific password has been issued. All passwords and access codes to the Materials, Software, the Content, and/or the Documentation are personal to the User and are not transferable or assignable by User.

3. COMPANY RESPONSIBILITIES

 (A) Performance Standard. Company will provide the services in compliance with current legal standards for all drivers. Company will make the services and materials available to you pursuant to this agreement, provide our standard support for the services and use commercially reasonable efforts to make the online services available 24 hours a day, 7 days a week except for (1) planned downtime for which we will provide advance electronic notice or (2) any unavailability caused by circumstances beyond our control, including, acts of God, acts of governments, flood, fire, earthquake, civil unrest, acts of terror, strike or other labor problems, internet service provider failures or delay, non-Company applications or denial of service attacks.

(B) Personnel. Company may utilize employees, independent contractors, or other agents to perform all or part of the Services. Company will remain solely responsible for the performance of all the Services, including by each employee, independent contractors, or other agents.

(C) Company Material. As part of the Services, Company may provide to Customer or the Authorized Users access to, certain products, materials, documents, software, hardware, information, data, works, content, devices, methods, processes, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, text, information, images (still and moving), audio visual, video or sound recordings and program streams, and/or any other content provided as part of the Services or otherwise created for or during the performance of the Services (“Company Material”). Company Material includes, without limitation, the Online Content and the Portal.

(D) Protection of User Data.  Company will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data.  Those safeguards will include, but not be limited to, measures, storage, archive and retrieval for preventing access, use, modification or disclosure of Your Data by Company personnel except (i) providing the purchased services and preventing or addressing service or technical problems, (ii) as compelled by law or (iii) as You expressly permit in writing. 

4. USER RESPONSIBILITIES

 (A) Users are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services and the Company Material, including, without limitation, transportation units, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). User is responsible for maintaining the security of the Equipment and will be responsible for all access to the Company Material.

(B) Services and content are subject to active license and/or paid annual subscription. Only Authorized Users may access the Services and Company Materials. Unless otherwise specified, User’s password may not be shared with any other individual. 

(C) Users are responsible for (i) compliance with this Agreement, (ii) responsible for the data entry, quality and legality of Your Data and the means by which you acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (iv) use Services and Content only in accordance with the Documentation and applicable laws and government regulations and (v) comply with terms of service of non-Company applications with which You use Services or Content.

(D) You agree that you will not use Company’s Website in any manner that could in any way disable, overburden damage or impair the Website or otherwise interfere with any other party’s use and enjoyment of the Website.  You further agree that you will not obtain, or attempt to obtain, any materials, content or information by any means not expressly made available or provided through the authorized use of the Website.

4. APPLICABLE USE OF SITE/USE RESTRICTIONS

(A) You may use this Site only for purposes expressly permitted by this Agreement.  As a condition of your use of Company’s Website, you warrant to Company that you will not use the Websites for any purpose that is unlawful, immoral or otherwise prohibited by these terms, conditions and notices.

(B) User will not, directly, or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying structure, ideas, or know-how relevant to the Company Material; (ii) modify, translate, or create derivative works based on the Company Material (except to the extent expressly permitted by Company); (iii) use the Services or Company Material for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels on the Company Material; (v) rent, lease, or otherwise permit third parties to use the Company Material; (vi) use the Services or the Company Materials for the purposes of monitoring performance, functionality or other benchmarking activities or in connection with the development of any competitive product or service or other competitive purpose; or (vii) circumvent or disable any security or other technological features or measures of the Company Materials. If User or any of its Authorized Users has violated, or Company has a reasonable basis to suspect that User or any of its Authorized Users has violated, the restrictions contained in this Section, Company may suspend the Services, including User or its Authorized Users’ access to the Company Material, without notice until User can demonstrate that its use of the Services and Company Material is in full compliance with this Agreement.

5. FEES AND PAYMENTS FOR SERVICES

(A) Fees for Services. User will pay Company the listed price for access and use of Company Material including credit card transaction fees (“Fees”) if applicable. Fees are based on Services and Content purchased or licensed and not actual usage.  Payment obligations cannot be cancelled and fees paid are non-refundable.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees. 

(B) Payment. User will pay the listed price for services and materials by using the link provided on the website. User will bear all taxes, duties and other governmental charges (collectively, “Taxes”) resulting from this Agreement.  You will provide valid and updated credit card information or Bank ACH debit information. If you provide credit card information to Us, you authorize Us to charge such credit card for all purchased services. 

(C) Taxes. Other than federal and state income taxes imposed on Company by the United States, or any other governmental jurisdiction, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Unless otherwise specified, the Fees payable to Company under this Agreement do not include any Taxes or other amounts assessed or imposed by any governmental authority.

(D) Future Functionality.  You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.

6. CERTIFICATION CLASS:

(A) Registering for, Purchasing and/or payment of the certification class does not ensure certification. Reasonable participation, conduct, learning, and exhibition of understanding of content is required for certification. Trainees are required to be on time, in line with the schedule provided by the Company.

(B) The Trainees are responsible for their own transportation to/from the class, lodging, meals and any other expenses incurred to participate in the training.

(C) The Certification class will be held at a hotel meeting room chosen and provided by Company or client’s place of business.

(D) The Company will provide the training vehicles and related expenses for the class. Trainees/users participate at their own risk, understanding that they will be sharing a vehicle with other class participants who do not work for nor represent Company.

(E) While attending the Certification Class, the Trainee/User is operating as a representative of their employer/client. The employer/clients’ insurance, Worker’s Compensation and automobile will be current and in effect.

(F) If a scheduled certification class is undersold, Company reserves the right to reschedule the Trainee/User in the same metropolitan area within 90 days of the original scheduled class. If Company is unable to fill the class scheduled within the 90 days, the Company will refund the registration fee to the Client.

(G) A Registrant/Trainee/Client must notify the Company in writing 30 days prior to the registered certification class to cancel and receive a refund. Registrants/Trainees/Clients who provide Notice of cancellation within 30 days, but no more than 14 days prior to the class will be able to reschedule for a future class, without penalty, but no refund will be issued. Registrants/Trainees/Clients who provide Notice of Cancellation under 14 days will not receive a refund.  If an emergency prevents attendance in the Certification Class the emergency situation will be evaluated on a case-by-case basis by the Company to determine whether User is eligible for refund or rescheduling, based upon the circumstances. Verification may be required to substantiate the reason for the absence. The Final decision is at the sole discretion of the Company.

7. ONCE A REGISTRANT/TRAINEE IS CERTIFIED:

(A)  Once a registrant/trainee is certified by the Company, the User/Client will be subject to an annual subscription fee.  The annual subscription fee is based upon the size of the Client’ transportation organization including trainers and drivers, payable prior to accessing the User Portal and Online Content being viewable/usable. (Link to Subscription Fee Table). These fees will be payable annually, renewable on the User/Trainers anniversary date of Certification. Notices will be sent 30 and 15 days prior to the payment being due. Failure to pay by the due date will result in suspension of Online Content and Portal services to the User, until payment is received. If no payment is made within 90 days past the due date, this Agreement is null and void, and User’s data and reports will be removed from the Portal. If User returns within a year, data restoration fees may apply at the discretion of the Company.

(B) A Trainer’s certification will be valid for 3 years from the original certification date with successful completion of an annual assessment, ensuring continued familiarity and competence with the material. After 3 years, and every 3 years thereafter, the Trainer will be required to attend a Company-hosted event, at the Client’s expense, including fees and travel-related expenses to recertify their Trainer abilities.

(C) Certified Trainers may take their certification to a new employer without the need to recertify but may not use the prior employer’s Portal access. A new subscription must be established with the new employer to continue training drivers or using Online Content and Portal.

(D) If a Client is adding a Certified Trainer for its current staff level, there will be no additional Online Content or Portal Fees. The new Trainer will be given access as a User. However, if a new Trainer is at an additional location with additional trainees, the difference in Online Content and Portal Fees will be invoiced if the additional trainees cause the number of total users to enter a different Fee bracket.

(E) Client’s Certified Trainers are required to fully train and evaluate Driver Trainees prior to certifying the Driver Trainees.  Failure to conduct the full classroom presentation and evaluation, in addition to the in-traffic training and evaluation would be in breach of this agreement.

8. CONFIDENTIALITY; PROPRIETARY RIGHTS

(A) 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 (“Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality, and performance of the Portal and the Online Content, as well as the other Company Materials. Confidential Information of Customer includes non­ public data provided by Customer or an Authorized User to Company through the Online Content or the Portal, including the User Data, and other Customer Material (as defined below).

The Receiving Party agrees:

(1) to take reasonable precautions to protect such Confidential Information; and

(2) not to use (except in performance of a party’s rights or obligations under this Agreement) or divulge to any third person any such Confidential Information.

The Disclosing Party agrees that the foregoing shall not apply with respect to any Confidentiality Information after five (5) years following the termination of this Agreement (except with respect to any personal information or trade secrets which the Receiving Party shall protect for as long as required under applicable law) or any

Confidential Information that the Receiving Party can document: (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law.

(B) Usage Data. Notwithstanding anything to the contrary, Company and its affiliates have the right to:

(i) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and Company Materials, including the  Portal, Online Content, and related systems and technologies (including, without limitation, information concerning the Customer and data derived therefrom) (“Usage Data”), and Company and its affiliates will be free to use such Usage Data to improve and enhance the Services and Company Materials, including the Portal and Online Content, and for other development, diagnostic, corrective, or other business purposes in connection with the Company Materials, including the Portal and the  Online Content,and other Company and its affiliates’ offerings; and

(ii) use Usage Data related to the Customer in a deidentified and aggregated manner in Company’s sole discretion (together with Usage Data, the “Company Data”).

(C) Privacy Policy. Company’s Privacy Policy (the “Privacy Policy”), which is available at https://bds3.com/privacy-policy/ applies to Customer’s use of the Services. If there is a conflict between this Agreement and the Privacy Policy, this Agreement controls.

9. NO CO-BRANDING OR FRAMING

 You may not use or authorize any party to co-brand or frame any Company Website without the express prior written permission of an authorized representative of Company in each instance.  For purposes of these Terms of Use, “co-branding” means to display a name, logo, trademark, tradename, service mark or other means of attribution or identification of any party in such a manner as is reasonably likely to give a User the impression that such other party has the right to display, publish, or distribute this Site or content accessible within this Site.  For purposes of these Terms of Use, “framing” refers to displaying any Company webpage within a bordered area of another website, regardless of whether the address of the originating Company Website is visible.  Furthermore, you agree to cease any unauthorized co-branding or framing immediately upon notice from the Company.

10. COPYRIGHT AND TRADEMARKS

 Web Site contains original written and visual materials (“Materials”), the copyright for which is owned by Company. All other information displayed, transmitted or carried in Web Site on the Company Web Site (including, but not limited to, directories, guides, articles, opinions, reviews, text, photographs, images, illustrations, audio clips, video clips, trademarks, service marks and the like, collectively the “Content”) are protected by copyright, trademark and other intellectual property laws. The Materials, Software and/or Content, and the rights thereto, are owned by Company, its affiliates, or third-party licensors. User agrees to abide by all copyright notices and restrictions attached to Web Site and/or any Materials, Software and/or Content accessed through Web Site on the Company Web Site.  Customer agrees not to alter Web Site and/or the Materials, Software and/or the Content in any way, and not to alter or remove any trademark, copyright or any other notice from copies of Web Site and/or the Materials, the Software and/or the Content.

11. RIGHT TO TERMINATE ACCESS

 Company reserves the right to monitor use of this Site to determine compliance with these Terms of Use, as well as the right to edit, refuse to post, or remove any information or materials, in whole or in part, at its sole discretion.  Company reserves the right to terminate your access to any or all the Communication Services at any time without notice for any reason whatsoever. 

12. DRIVERS LICENSE AND INSURANCE

(A) You agree that you possess a legitimate active State Driver’s License with no pending or active revocations or suspensions. 

(B) You agree that you have purchased automobile insurance including but not limited to personal injury protection, bodily injury, uninsured/underinsured motorist coverage, collision, and comprehensive coverage. 

13.REFERRAL PROGRAM

(A) Clients may refer the Company to new Clients by filling out the referral form posted on the website. Once it is confirmed that the referred party has discussed our services with the referring Client, and the referred party becomes a paid client of the Company, the referring Client is eligible for a discount in their following year’s annual subscription fee.

(B) Referred (New) Clients must enter into a User Agreement, a paid and completed Certification, and a paid annual subscription by the end of November of the current year for the discount to be applied to the referring client’s next annual subscription fee. Discount has no cash value and is unredeemable for Clients leaving their relationship with the Company.

(C) If the referred client(s) is/are the following percentage of the referring client’s user number, discounts are as follows:

1-79% = 10% Discount

80-119% = 20% Discount

120-199% = 33% Discount

200-299% = 50% Discount

300-399% = 66% Discount

400-499% = 75% Discount

500+% = 100% Discount

14. WARRANTIES AND DISCLAIMER

 (A) Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (iii) the execution, delivery, and performance of this Agreement does not violate the laws of any

jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

(B) Company Warranties. Company represents and warrants to Customer that: (i) it will perform the Services in a professional and workmanlike manner; (ii) that it owns or otherwise has and will have the necessary rights and consents in and relating to the Company Materials that, as received by the Customer and processed in accordance with this Agreement they do not and will not infringe, misappropriate or otherwise violate any intellectual property, or any privacy or other rights of any third party or violate any applicable law; and (iii) to Company’s knowledge, the

Company Materials do not contain any virus or other malicious code.

(C) Customer Warranties. Customer represents and warrants to Company that: (i) it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials that, as received by the Company and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property, or any privacy or other rights of any third party or violate any applicable Law; (ii) the Customer Materials and the User Data are true and accurate; and (c) it will access or use the Company Materials and Services only in compliance with this Agreement.

(D) Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON­ INFRINGEMENT. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF, OR BASED UPON, THE CUSTOMER’S USE OF THE SERVICES.

(E) Company gives no assurances or guarantees that users of this website or driving program will not be involved in automobile accidents. Company gives no assurances regarding human behavior. 

15. MUTUAL INDEMNIFICATION

 (A)  Indemnification by Company.  We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court approved settlement of, a Claim Against You, provided You (i) promptly give us written notice of the Claim Against You, (ii) give US sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (iii) give Us all reasonable assistance, at Our expense. 

If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 11 (Company Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions.  The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content that is not provided by the Company or Your breach of this Agreement.

 (B)  Indemnification by You.  You will defend US against any claim, demand, suit or proceeding made or brought against US by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court approved settlement of, a Claim Against Us, provided We (i) promptly give You written notice of the Claim Against Us, (ii) give You sole control of the defense and settlement of the Claim Against Us (except You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (iii) provide You all reasonable assistance, at Your expense. 

(C) Exclusive Remedy.  This Section 12 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claims described in Section 12.

16. LIMITATIONS OF LIABILITY

 (A) Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, OR RELATED TO, THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

 (B) Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF, OR RELATED TO, THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY IN THE 12 MONTHS PRECEDING THE ACTION GIVING RISE TO THE CLAIM.

 (C) Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. 

17. FORCE MAJEURE

 Except for the obligation to pay Fees or other money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, epidemic, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: {a) gives the other party prompt notice of such cause; and {b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

18. THIRD PARTY PRODUCTS

 “Third Party Products” means those services and products directly or indirectly performed or procured by persons other than Company, and all hardware, software, documentation, deliverables and supplies regardless of whether such items or services are purchased through, delivered by or installed by Company. Third Party Products may be included in, embedded in, used by, provided or distributed with, or accessible via the Services. Customer may be required to agree to additional or other terms and conditions with the provider of the applicable Third Party Products (“Third Party Terms”) or to pay Company additional fees in connection with Customer’s access to and use of the Third-Party Products. To the extent Customer’s agreement to Third Party Products, or if Client will be obligated to pay Company additional fees in connection with Company’s access to and use of the Third Party Products, Customer will have an opportunity to review the Third-Party Terms {either via Company or directly with the applicable third party provider) and fees charged by Company in advance. In the event of any conflict or inconsistency between this Agreement and the Third-Party Terms with respect to the Third-Party Products, the Third-Party Terms will control. Customer shall not assert any action against Company arising out of the use or purchase of, or otherwise in connection with, a Third-Party Product. Customer will not be responsible for unauthorized use (or charges for such use) of common carrier telecommunication, data services or facilities accessed through or connected to Third Party Products. No failure of a Third-Party Product will affect Customer’s obligations to Company.

19. ASSIGNMENT

 Neither party may assign any of its rights or obligations under this Agreement whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

20. INDEPENDENT COMPANY

It is the express intention of the parties that Company perform the Services as an independent Company. Without limiting the generality of the foregoing, Company is not authorized to bind Customer to any Liability or obligation or to represent that Company has any authority to do so.

21. GOVERNING LAW.

This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Florida without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. The parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in Florida, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.

22. NOTICES

 Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person, (b) sent by overnight air courier with some sort of tracking mechanism, in each case properly posted and fully pre-paid to the appropriate address as set forth below or (c) sent via facsimile or electronic means. Either party may change its address for notices by notice to the other party given in accordance with this Section. Notices will be deemed given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, one day after delivery to an overnight air courier service or upon receipt by the transmitting party of confirmation or answer back if delivery is by facsimile or electronic means.

23. WAIVER

 Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.

24. SEVERABILITY

 If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be fully valid and enforceable permitted by law.

25. INTEGRATION

 This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.